- (1.) M. Katju, J. Heard learned counsel for the parties.
(2.) THIS writ petition has been filed against the impugned order, dated 12-8-1996, Annexure 10 to the writ petition. It appears that the respondent No. 3 to 8 filed an application under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, against the petitioner which was allowed and the appeal against that order has been dismissed by the impugned order Hated 12. 8. 1996. Hence this petition. The case of the petitioner is that he was co-owner of the property in dispute. His contention was that his father Khushi Lal was the real brother of Jaiveer Nath, the grandfather of the respondents 4 to 10. This contention has been considered in detail by the lower appellate court and has been negatived. The Court below has held that there is no evidence to show that the petitioners' father was the brother of Jaiveer Singh. The court below also recorded a finding of fact that there is nothing to show that premises 168 was a part of the disputed premises No. 12/109 in Jogipara, Shahganj, Agra. It has further been found that the documents submitted by the petitioner were of the period subsequent to the filing of the application under Section 21. These being findings of fact, I cannot interfere with the impugned order in discretionary jurisdiction under Article 226 of the Constitution of India. Learned counsel for the petitioner relied on a decision of this Court in D. S. Victor v. The District Judge, Bareilly and others, 1978 ARC 413. In this case the tenant claimed to be the owner on the basis of an agreement to sale executed in his favour and alleged that there was no evidence of receiving rent from the tenant and hence the Prescribed Authority is not competent to decide the question of title under the U. P. Act No. 13 of 1972.
(3.) HOWEVER, in paragraph 7 of this decision it has been observed As I may not be understood as saying that in no case the question of title can be decided by an authority dealing with an application under Section 21. . . . . " Thus the learned Judge who decide the case himself observed that a question of title can sometimes be decided in a proceeding Section 21. In fact if it is accepted that a question title can never be decided in a proceeding under Section 21 then every proceeding under Section 21 can be frustrated by asserting in the written statement that the defendant is owner or co-owner. This obviously could not have been the position in law. Moreover, since the petitioner in the present case has not been found to be the co-owner, then if he asserts that he is not a tenant his position becomes worse i. e. he is either a licensee or a tresspasser. Hence I am not inclined to exercise my discretion under Article 226 of the Constitution in favour of a tresspasser or licensee. The petition is dismissed. However, I grant one year time to the petitioner to vacate the premises in question. The petitioner shall handover peaceful and vacant possession to the respondents on or before 19. 11. 1997. Petition dismissed. .;