K. C. Agarwal, J. - (1.) THESE two connected writ petitions have been filed against the judgment of the learned District Judge, Dehradun, dated November 28, 1974. Writ Petition No. 2035 of 1975 has been preferred by S. P. Gupta, the landlord (briefly stated as the petitioner), whereas Writ Petition No. 7784 of 1974 has been filed by Smt. Durga Devi, the tenant (hereinafter referred to as the respondent). As these petitions can be conveniently decided by a common judgment, I propose to take them together.
(2.) THE dispute in this case is with regard to a building known as "Indra Nikunj", which was formerly known as 'Beehive Cottage', situate in the city of Mussoorie. This building was in the tenancy of one Dr. Gopal Singh, husband of Smt. Durga Devi. Dr. Gopal Singh died in 1969. It was, therefore, allotted to Smt. Durga Devi. An application under Section 16 of U. P. Act No. XIII of 1972 (briefly stated as the Act), was filed by the petitioner on January 8, 1973, for release of the aforesaid premises in his name on the ground that the respondent was not living in the Beehive Cottage and that she had substantially removed her effects therefrom. It was also mentioned in this application that one Sita Ram, a typist in the City Board, Mussoorie, was living and occupying the said premises. In this application, a prayer for deputing an official to make a spot inspection was also made. It appears that in pursuance of the aforesaid application, the Rent Control and Eviction Officer deputed the Naib Tehsildar for enquiring about the fact of vacancy, as alleged in the application filed by the petitioner. The Naib Tehsildar, thereafter, reported that in view of the statements of various witnesses examined by him and his personal inspection he found that possession of the building had been given by the respondent to Sita Ram, who was not the legal tenant. He also mentioned in the report that the respondent had substantially removed her households and was living out of Mussoorie. On this report, the Prescribed Authority declared the house to be vacant on January 23, 1973, under Section 12 of the Act. This was followed by an order of allotment in favour of the petitioner. Having come to know of this allotment order, the respondent filed an application for its cancellation under Section 16(5) of the Act on the ground that the said order of allotment had been obtained by the petitioner by concealment of correct and true facts. She stated that she had gone temporarily to visit her sons and daughters due to winter and that she had neither removed her effects from the premises nor had handed over its possession to Sita Ram. She asserted that Sita Ram was permitted to live in one room as a care-taker in her absence from Mussoorie. The application filed by the respondent was contested by the petitioner. The parties led evidence before the Rent Control and Eviction Officer in support of their respective versions. The Rent Control and Eviction Officer having found that the respondent had gone temporarily from Mussoorie, held that the requirements of section 12 of the Act were not made out and, therefore, house was not open for allotment. On this finding, the Rent Control and Eviction Officer allowed the application filed by the respondent under Section 16(5) of the Act and recalled the allotment order dated January 27, 1973, passed in favour of the petitioner. Aggrieved by this order, the petitioner preferred an appeal before the District Judge. In the appeal, the petitioner urged the following three points : 1. Whether the respondent had substantially removed her effects from the disputed premises ? 2. Whether the respondent as well as the members of her family had taken up residence, not being temporary residence, elsewhere ? 3. Whether the respondent had * allowed the premises to be occupied by any person who is not a member of his family ?
(3.) THE learned District Judge decided point No. 1 in favour of the respondent, but, finding that Sita Ram had been allowed to occupy a room by the respondent, he held that in so far as that one room was concerned, the case was clearly covered by Section 12(1) (b) of the Act. THE District Judge further allotted this one room to the petitioner. On these findings, the appeal of the petitioner was partly allowed and one room, described as 'Pantry', was released in favour of the petitioner. As to the rest, the appeal was dismissed. Aggrieved by this judgment of the learned District Judge, these two petitions have been filed, one by the petitioner and the other by the respondent. I propose to take up writ no. 2035 of 1975 first. As stated above, the application was filed by the petitioner' on all the three grounds mentioned in Section 12(1) of the Act. After perusal of the evidence filed by the parties, the learned District Judge held that neither the respondent had removed her effects from the house nor had she taken up residence elsewhere. Challenging the findings on these two points, Sri L. P. Naithani, learned counsel for the petitioner, as well as the petitioner himself, who appeared himself in person before me, urged that these findings could not be upheld as they were against the evidence on record. Sri Naithani also urged that the evidence filed by the petitioner proved that the respondent had taken up her residence elsewhere and, therefore, the finding given to the contrary by the learned District Judge, was wrong. In this connection, the learned counsel invited my attention to certain annexures filed along with the counter-affidavit filed by the respondent in writ petition No. 2035 of 1975 and urged on their basis that those papers established that in most of the period of the year the respondent used to live outside, and that the premises in question is being used as a resort for the summer vacation.;