Prakash Krishna, J. - (1.) HEARD Shri M.A. Qadir, the learned Counsel for the petitioner, Shri R.U. Ansari, the learned Counsel for the respondent Nos. 4, 5 and 6 and Shri Iqbal Ahmed, the learned Counsel for the respondent No. 3. This writ petition is directed against the order dated 9th of August, 1995 filed as Annexure 7 to the writ petition whereby the Rent Control and Eviction Officer has declared house No. 88/256, quarter No. 11 Purana (12 new) as vacant. The facts of the case are not much in dispute and lie in narrow compass. Admittedly, one Chhanga was the tenant of the property in dispute who died leaving behind him Mohd. Hussain and Jalaluddin. It appears that an application for release of the disputed premises was filed under section 21 of the Act by Mohd. Aslam, the respondent No. 2. On the said release application the parties entered into a compromise on 11th of May, 1994. The Prescribed Authority allowed the release application in favour of Mohd. Aslam by the order dated 13.5.1994. It is also apparent from the record that Mohd. Aslam had entered into an agreement to sell in favour of the petitioner on 21st of January, 1994 and a sale deed was executed in pursuance of the agreement on 4th of October, 1994.
(2.) AN application for declaring the accommodation in question as vacant was filed by Sri Asghar Ali, the respondent No. 3. On the said application notices were issued to the parties by the Rent Control and Eviction Officer and report from the Rent Control Inspector was also called for. The Rent Control Inspector found that the present petitioner is residing therein. The petitioner filed an objection on the allegations that the accommodation in question was released in favour of Mohd. Aslam and from him his wife Smt. Rukhsar Fatima (petitioner) has purchased the said property by means of a sale deed dated 4.10.1994 and as such there is no vacancy. The Rent Control and Eviction Officer by the impugned order declared the vacancy without considering the respective submissions of the parties on the short ground that at the time of inspection Mohd. Ujair was found in occupation. Since Mohd. Ujair has failed to produce any release or allotment order, therefore, it was concluded that there is a vacancy. Shri M.A. Qadir, the learned Counsel for the petitioner rightly submitted that Mohd. Ujair is husband of the petitioner. This fact was not disputed by any of the Counsel for the respondents. Therefore, the possession of Mohd. Ujair shall be deemed on behalf of the petitioner being a family member. It is difficult to understand as to how the accommodation in question has been declared vacant. It is also not in dispute that this accommodation was earlier in occupation of one Chhanga as tenant and was subsequently released under section 21 of the Act in favour of Mohd. Aslam who sold the property in question to the petitioner. In this view of the matter, the order declaring vacancy cannot be sustained.
(3.) THE learned Counsel for the respondent Nos. 4 to 6 submitted that there are co -sharers of the property in question and the petitioner is in exclusive possession of the entire property, therefore there is a vacancy. The question as to contesting respondent Nos. 4 to 6 are co -sharers, cannot be adjudicated by the authority appointed under the provisions of the U.P. Act No. 13 of 1972. Then remedy, if any, lies elsewhere. It is for them to seek appropriate remedy for the redressal of their grievance from a Competent Court.;