POONAM SRIVASTAV,J. - (1.) :- Heard Sri A.K. Rai and Sri Vishnu Kumar Singh, counsels for petitioner and Sri Ashish Kumar Singh and Sri Ajay Kumar Singh, counsels for caveator/respondent no.3.
(2.) THE judgment and order dated 1.7.2009 passed by Additional District Judge, court no.4, Varanasi, in Rent Revision No.19 of 2004 Smt. Manju Devi Vs. Badal Pandey and others is under challenge in the instant writ petition. The Rent Control and Eviction Officer, Varanasi, vide judgment and order dated 31.8.2004 rejected release application of contesting respondent under Section 16 (1) (b) of U.P. Act No.XIII of 1972 (hereinafter referred to as the Act). Submission is that disputed house no.D-14/62 situated in Mohalla Therineem City Varanasi, was purchased by landlady vide sale deed dated 25.10.2001 from one Smt. Radha Devi widow of Shanker Lal Yadav, which consists of three floors. Rooms situated on third floor of building had fallen down and one room on the second floor had also fallen down since the entire building was in very dilapidated condition. One Ram Raj Mishra was tenant of the disputed house of two rooms situated on second floor at rent of Rs.35/- per month but plaintiff claims that it was illegally sub-let to petitioner, therefore, there existed vacancy. Learned counsel for respondent no.3 submits that entire thrust of argument of counsel for petitioner is based on original suit no.589 of 2003 wherein relief of permanent injunction was claimed to the effect that he should not be evicted except in accordance with law. In the said suit, there is no averment by petitioner regarding his source of title/ownership as relief claimed in suit is not based for declaration of title. The petitioner failed to produce a single document regarding title either before courts below or before this Court in the instant writ petition. Respondent no.3 is owner by means of sale deed dated 25.10.2001 executed by the previous recorded owner Smt. Radha Devi. She had purchased the house from one Kanhaiya Lal and others, who derived title from Beni Ram and others. Beni Ram purchased the property in auction of a mortgage property belonging to one Nagling erstwhile owner. There is no evidence on record to establish that petitioner was ever recorded over property in question. The alleged dispute of title raised by petitioner is based on no evidence and thus conclusively frivolous and artificial.
(3.) THE claim of the learned counsel for respondent no.3 is that petitioner is a rank trespasser and unauthorized occupant as such vacancy is in existence. The matter has been remanded because Rent Control and Eviction Officer, Varanasi has decided the question in a cursory manner and passed an order on 31.8.2004. The order of R.C. and E.O. has been set aside by Additional District Judge, court no.4, Varanasi, leaving it open for petitioner Badal Pandey to raise his argument before R.C. and E.O.;