U.C. Srivastava, J. - (1.) This tenant's petition is directed against the order passed by the Court of VIth Additional District Judge, Kanpur, allowing the landlord's Appeal and directing the release of the premises in dispute in favour of the landlord. The Prescribed Authority came to the conclusion that the landlord had failed to prove his case and consequently his application under section 21 of U.P. Act XIII of 1972 was dismissed.
(2.) The landlord came forward with the allegation that earlier he and other of his family were the owners landlords of the premises in dispute and as a result of the family partition the disputed portion fell to the share of the landlord and because there was increase in the number of his family members, he prayed that the premises may be released in his favour. The petitioner, who contested the case, came forward with the case that the landlord's need was not genuine. According to him, no family settlement had taken place between Bal Kishan and his brothers nor had the disputed premises gone to his share. It was further contended by the tenant that one B.A. Agrawal, who had constructed his own house, has taken possession of his house and his portion consisting of three rooms could be got released by the landlord. According to the petitioner the landlords were in possession of 15-16 rooms. The Prescribed Authority appointed a commissioner to find out the respective accommodations at the disposal of the landlord and the tenant and the report of the commissioner has been filed along with the writ petition as Annexure 10. The Commissioner reported that the size of the landlord's family consisted of eight adult members and five minors and the accommodation at their disposal was 12 rooms, court yard etc. so far as the tenant is concerned, it was found by the commissioner that the tenant has got one drawing room, the other rooms in his possession an the ground floor apart from kitchen etc. On the first floor there were three rooms at his disposal apart from bath room and box room. The Prescribed Authority came to the conclusion that in fact the landlord has got enough accommodation at his disposal and he was also in possession of the portions which were earlier in the tenancy of Chandra Prakash' Pearl Radio Company and B.A. Agrawal and that the landlords were out to eject, the tenant and they had also previously instituted a case against him in the court of Munsif and thereafter they started these proceedings. It was also held by the Prescribed Authority that the needs of the landlords were not bona fide and consequently the application was dismissed. The appellate court came to the conclusion that Bal Kishan was in fact the owner of the premises in dispute. I here was some family settlement in which the disputed portion had fallen into the share of Bal Kishan and he was the landlord of the premises in dispute. While comparing the needs of the landlord and the tenant, the appellate court found that the accommodation at the disposal of Bal Kishan was not sufficient.
(3.) Sri Grover, learned counsel for the petitioner submitted that the order passed by the appellate court suffers from an error of law, which is manifest on the face of the record. The first contention raised by the learned counsel was that not Bal Kishan but his other brothers were also landlords of the premises in dispute and he was their tenant and it was only by means of manipulation after filing of written statement by the petitioner in the proceedings under Section 21 of the U. P. Act No. XIII of 1972 that opposite party No. 2 came forward with a case that there had been a partition in the family and the disputed house fell into his share and as such she was the landlord. No evidence was tendered by opposite party No. 2 to prove that the tenant was also apprised of this fact or he ever attorned to it and accepted Bal Kishan as a sole landlord. The document which has been termed as a family settlement and according to which the disputed portion had fallen into the share of Bal Kishan is an unregistered document. Sri Grover submitted that the document on the basis of which opposite party No. 2 has cone forward with a case that he required the premises in dispute for his own use has no concern with other properties, being an unregistered document was inadmissible in evidence and was not binding on the tenant at all as he was not a party to it. Learned counsel contended that the law in this behalf is that if it records some memorandum of agreement then the document need not be registered but if the document by itself lays down the effect of partition and is reduced into writing then the document is required to be registered and unregistered document is not admissible in evidence. Sri Grover, learned counsel for the petitioner further contended that a perusal of the order passed by the appellate authority will show that it misread the evidence including the Commissioner's report which has been misread and pointed out that the family of the landlord, as per his on admission, consisted of 8 adults and 5 children but the appellate authority while comparing the needs of landlord and tenant took as if the landlord's family consisted of 16 adults and children It was further submitted that from the evidence concerned it is evident that the accommodation with the landlord's family consisted of 12 rooms, court-yard, Chhajje and other amenities. While appellate authority proceeded with the case on the wrong assumption that the landlord was in possession 7 rooms only. Learned counsel further submitted that according to the appellate court landlord required 9 rooms and in case 3 rooms which were in possession of another tenant who has constructed another house the needs of landlord who is already in possession of the said three rooms are fully met. A perusal of the Commissioner's report and the order passed by the learned Additional District Judge will show that the latter has committed a mistake on the question of strength of the family and the accommodation in possession of the landlord and the tenant and in this mistaken back ground he has decided the case and has also not taken into consideration the legal effect of vacation of the premises by a person who has constructed his own house and the availability of the same in a right perspective. Sri S.P. Gupta strenuously challenged the contention raised by the learned counsel for the petitioner. He contended that so far as the legal position regarding admissibility of the document in concerned, even if some mistake has been committed by the appellate authority, the appellate authority can correct it's own mistake. So far as the question of misreading of the evidence by the appellate authority is concerned, the learned counsel could not successfully point out that the observation made by the learned Additional District Judge is correct. In this view, the order passed by the learned Additional District Judge, Kanpur, suffers from manifest error of law.;