K.C. Agrawal, J. - (1.) THIS writ petition is directed against the judgment of the learned Addl. Distt. and Sessions Judge, Bulandshahr, dated September 5, 1974, dismissing the appeal filed by the petitioners u/S. 18 of U.P. Act No. XIII of 1972. The dispute in this case is with regard to premises No. 2/282, Race Course Colony, Bulandshahr. THIS house was owned by one Bhupendra Singh Dang prior to 25th of June, 1974. He sold the aforesaid house on June 25, 1974 to Smt. Parmeshwari Devi and Smt. Ilachi Devi, the petitioners. It appears that an application was filed by Jagdish Sharma, respondent No. 1, for allotment of the aforesaid premises in his favour on the ground that the same was vacant. The application had been recommended by the Minister of Education, U. P. The Rent Control and Eviction Officer passed an order of allotment on the said application in favour of Jagdish Sharma on 18-7-1974. Having come to know of the aforesaid order the petitioners preferred an appeal under Section 18. The appeal was dismissed by the impugned order. Hence the writ.
(2.) THE first submission made by the learned counsel for the petitioners was that as the house was in occupation and possession of Bhupendra Singh Dang on the 25th of June, 1974, when it was sold to the petitioners, therefore, there was no vacancy at any point of time which could entitle the Rent Control and Eviction Officer to pass an order of allotment in favour of respondent No. 1. Counsel urged that an order of allotment can be passed in respect of a premises only when it is likely to fall vacant or is actually vacant or is deemed to be vacant under Sec. 12 of U. P. Act No. XIII of 1972. Learned counsel for the respondent No. 1, however, urged that there was no evidence before ,the District Judge to come to the conclusion that the premises in question was not actually vacant and, therefore, the submission made is untenable. He urged that whole of this premises had been let out by Bhupendra Singh Dang to the Regional Food Controller and as the latter had vacated the premises, therefore, the same could be allotted to respondent No. 1 The question that now needs determination is whether the house in question was in possession of Bhupendra Singh Dang or the Regional Food Controller as a tenant. If Bhupendra Singh Dang was in possession of the aforesaid house as the owner, the passing of possession from him to the petitioners did not create any vacancy so as to entitle the Rent Control Authorities to pass any order of allotment in respect thereof. In this connection, learned counsel for the petitioners invited my attention to various paragraphs of the writ petition where in it has been alleged that on 25th of June, 1974, the house was in possession of Bhupendra Singh Dang. It may be noted that the petitioners themselves have admitted in the writ petition that before the possession was obtained by Bhupendra Singh Dang in April 1974, a part of the premises was in the tenancy of the Regional Food Controller, Bulandshahr, whereas the remaining portion where of was in occupation of Bhupendra Singh Dang. After hearing counsel for the parties, l am unable to accept the submission of the learned counsel for the petitioners that as Bhupendra Singh Dang was in possession of the premises on 25th of June, 1974, the possession of the petitioners over the whole of the premises would be deemed to be that of the owner and the Rent Control and Eviction Officer could not treat it to be vacant for the purposes of Section 16. Even if the Regional Food Controller was a tenant of a part of the aforesaid premises, the previous owner viz. Bhupendra Singh Dang, could not enter into possession of the said portion without obtaining a release order in his favour under section 16 (2) of the said Act. Therefore, simply because he had obtained possession of the premises in April 1974 and was actually in possession on 25th of June, 1974 the same cannot be considered as sufficient for holding that Bhupendra Singh's possession in respect of the entire premises was legal. The next question that may now be considered is about the alternative case of the petitioners as to the effect of a part of the premises being in possession of Bhupendra Singh Dang whereas the remaining portion thereof being in the tenancy of the Regional Food Controller. Counsel urged that the order of allotment made in respect of the portion in possession of Bhupendra Singh Dang was illegal as there was no vacancy regarding the same. The respondent's counsel disputed the fact that Bhupendra Singh Dang was in possession of any portion of this house. He invited my attention to the counter-affidavit wherein it has been alleged that the whole of the premises had been let out to the Regional Food Controller. It, however, appears from a perusal of the judgment of the court below that it did not make any enquiry about the fact whether only a part of the premises had been let out to the Regional Food Controller or that the whole of it was in his possession as tenant. In order to find whether the allotment order was valid it was necessary on the part of the court below to have done so. It appears to me that as the lower court was of the opinion that even if Bhupendra Singh Dang was in possession of the entire premsies, the petitioners could not take possession of the same from the previous owner without obtaining an order of release under sub-Section (2) of Section 16 of the Act. The view of the court below on that controversy does not appear to be correct. When an owner executes a sale deed of a house belonging to him and passes on title and possession to the purchaser, the house does not fall vacant at any point of time so as to attract any of the provisions of U. P. Act No. 'XIII of 1972. The purchaser, in fact, enters into the shoes of the vendor. He, thus, becomes the landlord of the premises and the possession, therefore, of the previous landlord ceases, and the mere fact that he obtains the same from the vendor is of no consequence. The court below was not right in holding that as the provisions of U. P. Act No. XIII of 1972 are materially different, therefore, the decision of this court given in Laxman Das v. Rent Control and Eviction Officer, 1953 AWR 125 would not apply. There is nothing either in section 13 or 15 of U. P. Act No. XIII of 1972 on the basis of which it could be said that a purchaser is not entitled to enter into possession of the property obtained on sale by him from the vendor. In fact, the restriction on occupation of a building without allotment or release provided for in Section 13 applies only in a case where a landlord ceases to occupy a building or a part thereof. In the case of a sale such a contingency does not arise. The possession of the new landlord would be in place of the previous landlord. Therefore, the provisions of Sec. 13 would not be attracted. As laid down in LaxmanDas's case (supra) when an owner of property, being in possession of it and actually occupying it, transfers the ownership and possession thereof to a transferee, the ownership and possession vests in the transferee and the transferee from the moment of transfer steps into the shoes of the owner. In such a case, in my opinion, no vacancy can be said to have ever occurred.
(3.) HAVING found thus that the court below committed an error in law in holding that on account of passing of possession from Bhupendra Singh Dang to the petitioners, a vacancy had occurred, the judgment of the court below is liable to be quashed. As a result thereof, the matter will now go back to the District Judge with a direction to decide the case afresh. As it appears that the parties did not have full opportunity to adduce evidence on the question as to whether the Regional Food Controller was in possession of the whole of the premises before April 1974 or only a part thereof, it appears proper to give a direction to the court below to permit the parties to adduce evidence in respect thereto. If it is found that the Regional Food Controller was in possession of only a portion of it, it will become necessary for the court below to consider whether the allotment order passed in favour of respondent No. 1 in that event can be said to be valid. While deciding this question, the court below will also take into consideration the effect of Section 17 of U.P. Act No. XIII of 1972. As the judgment of the court below is being set aside on a point which, to my mind, is crucial, it is not necessary for me to go into other questions which have been decided by the court below. It will now be open to the court below to record its finding again on these points, if they are pressed before it. In the result, the writ petition succeeds and is allowed. The judgment of the learned Additional District Judge, dated 5-9-1974 is quashed, and the case shall be sent back to him for deciding it afresh, in the light of the observations made by me above in the judgment. The parties shall bear their own costs. Petition allowed.;