- (1.) SUDHIR Narain, J. This writ petition is directed against the order dated 24-2-1997, releasing the disputed accommoda tion in favour of the landlord-respondents 3 and 4 and the order dated 16-5-1997, passed by respondent No. l, dismissing the appeal against the aforesaid order.
(2.) THE fact in brief are that Har Narain Lal was owner of the house in dispute No. 542 Neta Nagar, Nai Basti, Kydganj, Al lahabad. THE petitioner's father was tenant on the ground floor portion of the said house. Har Narain was residing on the first floor of this house. He had no issue and his wife pre- deceased. He executed a registered will thereby creating the trust know as Har Narain Lal Kishori Devi Trust by which he bequeathed the house in dispute as well as house No. 16/135, Sohbatia Bagh, Al lahabad, to the trust. Ramji Lal nephew of Har Narain claimed that the previous will was cancelled by his uncle Har Narain Lal and he executed another will on 15th July 1984 thereby bequething house No. 542 Neta Nagar, Nai Basti, Kydganj, Allahabad to him, Har Narain Lal died on 8th August, 1984. After his death Ramji Lal filed an application for obtaining succession certificate in the Court. THE Court granted suc cession certificate under the provision of Indian Succession Act, 1925. On 28-8-1985, Ramji Lal sold the disputed house to Shri Laxmi Pati Tripathi and Ram Chandra Tripathi respondents 3 and 4. After obtain ing the sale- deed they got their names mutated in the Municipal record. Respon dents 3 and 4 filed application for release of the disputed accommodation against the petitioners 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 12th July 1994 stating that they had purchased the property from Ramji Lal on 28th August, 1985 who was then owner of the disputed property. It was alleged that their family was large and they required the disputed accommodation for residential purpose. THE application was contested by the petitioners. THEy filed ob jections. THEy, inter alia raised the plea that the applicant- respondents were not the landlords. Har Narain Lal Srivastava had executed a will on 3rd July, 1982 and thereby created a trust. THE will set up by Ramji Lal dated 15th July 1984 was fictitious. THE petitioners have filed suit No. 20 of 1988 under Section 92 of the Code of Civil Proce dure for declaration that the disputed property is a trust property and for appoint ing the trustees. THE Prescribed Authority recorded finding that Har Narain had ex ecuted a Will dated 15th July, 1984 with the result that the previous Will was cancelled. His nephew had validly executed sale-deed in favour of the respondents and the need of landlord was bona fide and genuine. On a comparative hardship it was found that in case the application is rejected the landlord shall suffer greater hardship. THE petitioners filed appeal against the said order under Section 22 of the Act. Respon dent No. 1 dismissed the appeal by the im pugned order dated 16-5-1997. Learned Counsel for the petitioner has assailed the findings recorded by respondents 1 and 2 that the sale-deed ex ecuted by Ramji Lal was valid and there was relationship of landlord and tenant between the petitioner and the respondents. The basic question was whether Har Narain Lal had executed the Will dated 15th July, 1984 in favour of his nephew Ramji Lal, There was no dispute that Har Narain Lal had executed a registered Will on 3rd July, 1982 thereby creating a trust in the name of Har Narain lal Krishna Devi "crust and be queathing his two properties in the trust namely, house No. 542 Neta Nagar, Nai Basti Kydganj, Allahabad, which is subject matter in the present writ petition and house No. 16/135, Sohbatia Bagh, Al lahabad. He named three trustee namely, (1) Lalji Sahai Srivastava as Managing Trus tee (2) Vindhyabasini Prasad and (3) Ramji Lal his nephew. Ramji Lal claimed that Har Narain Lal had executed a Will on 15th July 1984 revoking his previous will and be queathing the property in dispute in favour of his nephew Ramji Lal. In this will the attesting witnesses were Lalji Sahai Srivas tava, Bindhyabasini Prasad (sic ). These per sons were trustees in the Will dated 3rd July, 1982. Lalji Sahai Srivastava filed an affidavit before the Prescribed Authority stating that he attested the Will dated 15th July, 1984, and it was duly executed by Har Narain Lal. The Prescribed Authority as well as Appel late Authority placed reliance upon the af fidavit of Lalji Sahai Srivastava and held that the execution of the Will dated 15th July, 1984 was true. Ramji Lal, after death of Har Narain Lal, applied for obtaining suc cession certificate before the Court which was granted in his favour. Ramji Lal sold the disputed property to respondents 3 and 4. Learned Counsel for the petitioner contended that the execution of the Will dated 15th July, 1984 was not proved. Lalji Sahai Srivastava had lodged an FIR on 31-8-1984 with the police that he has lost the Will. His conduct indicates that the alleged Will dated 15th July, 1984 was not executed. This aspect has been considered by respon dents 1 and 2. It was held that a photostat copy of the FIR dated 21-8-1984 has beer; filed and no reliance can be placed on it. The petitioners also filed a copy of the entry made in the register of the police indicating that an FIR was lodged on 28-1-1984 but this could have been manipulated otherwise by any person. Lalji Sahai Srivastava filed affidavit before the Prescribed Authority stating that he was attesting witness of the Will dated 15th July, 1984 and it was ex ecuted by Har Narain Lal. Lalji Sahai Srivastava was one of the trustees in the trust-deed dated 3rd July, 1982 and no reason was stated as to why he acted against his own interest. Bindhyabasini Prasad was another trustee but he also never raised any dispute that the trust was not in existence and the Will dated 15th July, 1984 was fic titious. In fact, he has been shown as one of the attesting witnesses of the Will dated 15th July, 1984.
(3.) LEARNED Counsel for the petitioner urged that Appellate Controller of Estate Duty passed an order on 14-11-1985 in an appeal which was filed by Har Narain wherein a mention has been made that Har Narain had created a trust on 3rd July, 1982. A copy of the order has been annexed as annexure-2-A to the writ petition. This shows that Har Narain Lal after death of his wife on 12-4-1981 challenged thedemand of the Estate Officer, demanding estate duty of theproperty of his wife Smt. Krishna Devi. The Estate Officer passed an order on 4-11-1985 levying estate duty of Rs. 1700/ -. Har Narain Lal filed an appeal against the said order. There was no dispute before the Appellate Controller of Estate Duty as to whether Har Narain Lal had executed the Will on 3rd July, 1982. The Appellate Con troller had not decided the said controversy. It is not disputed that Har Narain Lal had not executed the Will dated 3rd July 1982. The subsequent Will dated 15th July 1984 itself mentions that the earlier Will dated 3rd July 1982 is being cancelled. The ex ecutant had given the reasons for cancella tion of the Will dated 3rd July 1982 in the Will dated 15th July 1984. Considering the entire facts and evidence on record the Prescribed Authority recorded a finding that Har Narain had executed a Will in favour of his nephew on 15th July 1984. This finding has been affirmed by respondent No. 1 and I do not find any manifest il legality in the findings recorded by the respondents 1 and 2. It is also relevant to note the conduct of the petitioner. Har Narain Lal was residing on the first floor of the house in dispute. The petitioner was residing on the ground floor. On the death of Har Narain Lal the petitioners occupied the first floor portion in which Har Narain Lal was residing. An application for release of the first floor portion was filed by respon dent No. 3 on the allegation that he had purchased the property and after his death he was entitled to occupy the said house. The Rent Control and Eviction Officer declared the first floor portion as vacant. The petitioner filed writ petition No. 19924 of 1989 challenging the order of the Rent Control and Eviction Officer dated 29-51989. In the writ petition he claimed that after death of Har Narain Lal he succeeded to his interest and is owner of that portion of the property. Paragraph 5 of the writ petition reads as under:- 5. That the petitioner and his brother are the sole surviving heirs of the deceased owner of the house in dispute and after his death having become entitled to its possession are in possession and no unauthorised occupant alleged such as Luxmi Pati "ihpathi has ever been in possession. " Learned Counsel for the petitioner contended that the averments were incor rectly made under some misapprehension by the Counsel for the petitioner. The petitioner in the said writ petition had ob tained the stay order and subsequently the writ petition was dismissed in default.;