- (1.) SUDHIR Narain, J. The petitioner has sought a writ of certiorari quashing the plaint of Original Suit No. 119 of 1995, Anil Kumar Kesarwani and another v. Bis wanath Malik, pending in the court of Munsif West Allahabad and commanding respondents Nos. 3, 4 and 5 to handover peaceful possession of the property in dispute to him.
(2.) THE facts, in brief, are that the petitioner is the owner and landlord of House No. 606-A, Khalasi Line, Kydganj, Allahabad. He filed an application for release under Section 21 (1) (a) of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act') on the allegation that respondent No. 3 is a tenant and he requires the shop in question. He will open a photography shop after his retirement from the service in June 1983. Respondent No. 3 is carrying on his Rikshaw business in the ground floor of Building No. 122, PS. Kydganj, Allahabad in the name and style of M/s. Neelam Bicycle and Heavy Kit on the main road just opposite to the house of the applicant. This release application was contested by respondent No. 3. He denied that the petitioner requires the shop in question bona fide. In Para 11 of the written statement he stated that his family consists of himself, his wife, his mother, three sons and one daughter. All his sons were shown to be minors. The Prescribed Authority allowed the release application by order dated 8-12-1986. Respondent No. 3, filed appeal against the said order before the District Judge. The appellate authority allowed the appeal on 9-8-1990. The petitioner filed Writ Petition No. 404 of 1991 against the said order. The writ petition was allowed on 8-11-1993 and the appellate authority was directed to decide the appeal in ac cordance with the observation of the Court in its judgment within four months from the date of filing of the certified copy of the judgment. The appellate authority after remand, heard the appeal on merits and dismissed it by his order dated 5-10-1994. Respondent No. 3 filed writ petition No. 35423 of 1994. This writ petition was dismissed by this Court on 25-11-1994. The petitioner, thereafter, sought possession of the disputed accommodation.
(3.) RESPONDENTS Nos. 4 and 5 are sons of Respondent No. 3. They filed Suit No. 119 of 1995 in the Court of Munsif West, Allahabad for declaration that the order passed in P. A. Case No. 128 of 1992 as confirmed by the appellate authority on 5-10-1994 in Appeal No. 4 of 1987 passed against their father are not binding upon them and for injunction restraining the petitioner from taking possession of the accommodation in question in pursuance of the execution of the release order in that case. The allegation in the plaint was that they are tenants of the property in question. The tenancy of the shop initially commenced from the time of Late Smt. Rani Devi, sister of plaintiffs' grandfather, who had established his business. She was issueless. Her husband had pre-deceased her long back. She executed a Will on 2-12-1978 whereby she bequeathed the entire Rikshaw business of the shop in question. They also filed an application for injunction restraining the petitioner from taking possession of the shop in question. The trial court rejected the applica tion for injunction.;