S.D.Agarwal, J. - (1.) -This is a petition under Art. 226 of the Constitution of India arising out of proceedings for release under S. 16 of U. P. Act, XIII of 1972 hereinafter referred to as the Act in respect of a shop situate in Mohalla Shiamganj, Bareilly.
(2.) The case of the petitioner is that Rameshwar Dass, the father of the petitioner, was the chief tenant of the shop in dispute and Nand Kishore is the owner. After the death of Rameshwar Dass the petitioner Kailash Nath became the chief tenant. This property was sub-let by Rameshwar Das to Sita Ram. After the death of Sita Ram, Horilal respondent be- came the sub-tenant of the premises. Subsequently a suit was filed for ejectment by Rameshwar Dass against Sita Ram being suit No. 299 of 1955 in the court of Munsif City which was ultimately decreed and an ejectment decree was passed against Sita Ram. On 9th Feb., 1973 Hori Lal, the sub-tenant delivered possession of the premises to the petitioner chief tenant Kailash Nath. On 3rd Sept., 1974 an application for release was made by the petitioner Kailash Nath as he needed bona fide the premises in dispute for his own business. The case of respondent Nand Kishore is that originally the property in dispute was ancestral property of which Nand Kishore as well as Rameshwar Dass were the owners after the death of their father. Rameshwar Dass had let out this property to Sita Ram as the karta of the joint Hindu family on behalf of that family, and as such it is alleged by respondent no. 4 that in fact Rameshwar Dass was not the chief tenant but only one of the co-landlords of the premises in dispute. The property having been partitioned the property in dispute came to the share of Nand Kishore and as such Nand Kishore is now the owner and landlord of the premises in dispute. It may further by stated that since respondent no. 4 himself claimed to be the owner of the premises he moved an application for release before the Rent Control and Eviction Officer on 13th Feb., 1973. The position, therefore, is that before the Rent Control and Eviction Officer there were two release applications, one was the release application moved by Nand Kishore on 13th Feb., 1973 and the other was the release application moved by the petitioner on 3rd Sept., 1974.
(3.) The Rent Control and Eviction Officer recorded a finding that the petitioner was the chief tenant of the premises in dispute. Thereafter he was of the view that since the petitioner was the chief tenant he became the landlord of the premises and as such the application for release moved by Nand Kishore was not maintainable in law. The application of Nand Kishore for release was, therefore, rejected and the application for release filed by the petitioner was allowed by the Rent Control and Eviction Officer by order dated 28th June, 1975. Aggrieved, respondent no. 4 filed an appeal. This appeal was ultimately allowed by the 1st Addl. District Judge, Bareilly, by his judgment dated 8th Aug., 1977 and he remanded the matter to the Rent Control and Eviction Officer for decision of the case afresh after affording an opportunity to the parties in the light of the observations made by him. Aggrieved the petitioner has filed the present petition challenging the order dated 8th Aug., 1977.;