- (1.) S. U. Khan, J. Property in dispute is a flat situate in Khanna Building Subhash Nagar, Bareilly containing a big Hall and two rooms of 14' x 11', dimensions each, alongwith Varandah, Tin shed and other amenities like latrine, bathroom, kitchen etc. It was allotted to respondent No. 3, Diwakar Upadhyay on 18-1-1973 after rejection of release application of the landlords on 10-1-1973. If the version of respondent No. 3 that he paid 28 years rent on 16-11-2000 is not believed, then he is in possession for 33 years without payment of any rent. This petition was filed by P. N. Khanna and B. N. Khanna who were real brothers. B. N. Khanna died in 2003 and was substituted by his legal representatives.
(2.) THE flat in dispute fell vacant due to its vacation by earlier tenant B. R. Bhatia. Release application was filed under Section 16 of U. P. Act No. 13 of 1972 by P. N. Khanna, petitioner No. 1. Even though in writ petition and in some other affidavits it was stated that release application was filed by both the petitioners, however during the course of arguments learned Counsel for the petitioners clarified that as copy of release application was not available at the time of filing the writ petition, and other affidavits hence it was wrongly mentioned therein that both the petitioners had filed release application. Learned Counsel for the petitioners admits the contention of the learned Counsel for respondent No. 3 that release application was filed only by P. N. Khanna, petitioner No. 1 and B. N. Khanna was impleaded as proforma respondent in the said application. As stated earlier, release application was rejected by Rent Control and Eviction Officer on 10-1-1973 and flat in dispute was allotted to respondent No. 3 on 18-1-1973. However, in the allotment order no rent was fixed. Against the said orders two revisions being Revision Nos. 20 and 29 of 1973 were filed. On 6- 11-1973 Additional District Judge, Bareilly allowed both the revisions, set aside both the impugned orders and matter was remanded to Rent Control and Eviction Officer. Thereafter on 21- 1-1975 Rent Control and Eviction Officer released the flat in dispute in favour of petitioner No. 1 P. N. Khanna. Against the said order appeal/revision was filed by respondent No. 3, which was dismissed by the District Judge, Bareilly on 23-7-1975 and six month's time was granted to vacate. Thereafter respondent No. 3 started adopting crooked courses to continue in possession. He filed Original Suit No. 67 of 1976. In the said suit respondent No. 3 asserted that petitioner No. 2 B. N. Khanna was landlord, hence release order in favour of petitioner No. 1 was illegal and without jurisdiction and he (respondent No. 3) could not be dispossessed in pursuance of the said release order. Meanwhile Form 'c' was served upon respondent No. 3 from the office of Rent Control and Eviction Officer for vacating the flat in dispute. Against Form 'c' Writ Petition No. 2065 of 1977 was filed, which was dismissed on 18-7-1978. Thereafter Form 'd' was issued on 23-11-1978. However, due to temporary injunction order passed in aforesaid Original Suit No. 67 of 1976 Form 'd' was recalled by Rent Control and Eviction Officer through order dated 30-11-1978. Thereafter Original Suit No. 67 of 1976 was dismissed on 7-1-1979. Categorical finding was recorded in the said suit that both B. N. Khanna and P. N. Khanna were landlords, hence there was absolutely no fault in the release order. First Appeal filed against the said judgment and decree was dismissed by District Judge/additional District Judge on 18-2- 1981. Thereafter Second Appeal No. 1167 of 1981 was filed in this High Court, which was dismissed on 19-2-1982.
(3.) THEREAFTER petitioners filed application for possession and prayed for issuance of fresh Form 'd'. This application was filed on 28-5-1983. respondent No. 3 filed objections praying for recall of the entire proceedings stating therein that only petitioner No. 2 was landlord, hence release order, which was only in favour of petitioner No. 1, could not be enforced. Rent Control and Eviction Officer, Bareilly/a. D. M. Civil Supplies, Bareilly through order dated 23-5-1984, held that possession could not be delivered to P. N. Khanna, hence his application for delivery of possession was rejected. Rent Control and Eviction Officer held that respondent No. 3 allottee had stated in his affidavit that in the family partition, recognized and affected through decree passed in Original Suit No. 305 of 1974, building of which flat in dispute is a part, was given in the share of B. N. Khanna, petitioner No. 2, hence release order in favour of petitioner No. 1 could not be enforced. No document alongwith affidavit was filed by respondent No. 3 P. N. Khanna filed objections. Rent Control and Eviction Officer held that B. N. Khanna had not filed any affidavit. It appears that Rent Control Inspector also filed some report dated 24-11-1993 stating that flat in dispute was in the share of P. N. Khanna. Rent Control and Eviction Officer believed the version of respondent No. 3 that in family partition, flat in dispute had fallen in the share of B. N. Khanna, hence release order in favour of P. N. Khanna could not be enforced. Against the order dated 23-5-1984, revision was filed being Rent Control Revision No. 146 of 1984, which was dismissed by Additional District Judge, VI Bareilly through judgment and order dated 14-12-1992. Revision was mainly dismissed on the ground of maintainability. However, it appears that learned Additional District Judge also agreed with the findings of Rent Control and Eviction Officer. This writ petition is directed against orders dated 23-5-1984 and 14-12-1992. Copy of plaint of Original Suit No. 305 of 1974 through which partition was effected in between P. N. Khanna and B. N. Khanna and other members of their family has been annexed as Annexure '4' by respondent No. 3 himself alongwith his counter-affidavit. In Para 4 it was stated that Plaintiff No. 1 and Defendant No. 1 i. e. B. N. Khanna and P. N. Khanna were owners in possession of properties specified in Schedule 'a'. In Schedule 'a' given at the foot of the plaint three properties were included. Property No. 2 was Khanna Building (flat in dispute is part of the said Khanna Building ). In the plaint no relief for par tition of properties in Schedule 'a' of the plaint was sought. The whole case of respondent No. 3 falls on this ground. Even otherwise also in Original Suit No. 67 of 1976 filed by respondent No. 3, this question was specifically decided and it was held that the said property was joint property of both the petitioners. Said judgment was approved by this Court in Second Appeal. Even, writ petition filed against Form 'c' was dismissed by this Court.;