- (1.) J. C. Gupta, ,j. Heard Sri N. B. Nigam, learned counsel for the petitioner and Shri Yasharth, learned counsel ap pearing tor the eaveator-Respondent No.
(2.) THIS is tenant's writ petition chal lenging the order dated 30- 7-1999 passed by Respondent No. 1, the lower appellate authority whereby the accommodation in question has been released in favour of the landlady-Respondent No. 3. The fact's giving rise to this writ petition may be briefly staled. The dispute relates to a portion of House No. 107/251-A, Nehru Nagar, Kanpur. The father of Respondent No. 3, Ram Narain Nigam was the owner and landlord of the accom modation in question. He died on 18-6-1996. Thereafter the Respondent No. 3 moved an application under Section 21 (l) (a) of U. P. Act No. XIII of 1972 (in short, to be referred to as the Act) for the release of the tenanted accommodation on the ground that she is a divorced woman and her father late Ram Narain Nigam had bequeathed the tenanted accommodation in her favour giving her a life interest in the said accommodation, that she could reside therein till her life time but she will have no right to alienate the same. She was living with her brother in another portion of the house with his mercy and as he was com pelling her to shift to her own portion, she needed the accommodation bona fide for her personal requirement. The release ap plication was contested by the petitioner on a number of grounds, namely, that the Will in question was not genuine; that there was no bona fide need of the landlady and that he has been a tenant of long standing, hence his sufferance would be more than the landlady in case order of eviction is passed against him. The Prescribed Authority by the order dated 12-1-1998 rejected the release application of the landlady after holding that the Will was genuine and that the petitioner had accepted Respondent No. 3 as his landlady after the death of her father and that the need of the landlady was not bona fide inasmuch as no affidavit of the brother of the landlady had been brought on record 10 support the assertion of the landlady that her need for the accommodation in question was genuine and bona fide. The lower appellate authority has reversed this finding of fact of the Prescribed Authority assigning its own reasonings. Under the provisions of the Act the appellate authority acting under Section 22 is also a fact finding authority and it has the juris diction to set aside the finding of fact recorded by the Prescribed Authority and record a correct finding of fact. In the present case it cannot be said that the appellate authority has substituted its own finding on the issue of bona fide need without specifically reversing the reasonings advanced by the Prescribed Authority in support of its findings recorded on the issue of bona fide need. It is well estab lished law that even in the finding of fact recorded by the appellate authority which is contrary to the finding of fact recorded by the Prescribed Authority, this Court docs not interfere unless it could be shown that the appellate authority has sub stituted its own finding of fact for that of the Prescribed Authority without examin ing the reasonings advanced by the Prescribed Authority or without consider ing t he material or evidence relied upon by the Prescribed Authority in support of its finding. As already indicated above in the present case the appellate authority has reversed the finding of the Prescribed Authority on the question of bona fide need after taking into consideration the reasonings advanced by the trial Court and i he appellate authority has given its own reasonings for reversing the said finding. This Court has examined the reasonings of the appellate authority and finds no fault therein. Even as per the findings of the Prescribed Authority Respondent No. 3 had become landlady of the petitioner after the death of her father on account of a registered Will having been executed by her father and on account of the accep tance of the petitioner. Ii could not be disputed nor has been urged before this Court that the petitioner docs not have any right or title in the other portion of the house owned by her brother. Even after his death, the said property under law of suc cession would devolve upon the heirs of her late brother and nol upon her. She having no right or interest in the other portion of the house cannot claim as of right to reside with the heirs of her brother. On almost similar facts this Court in the case of Smt. Kalawati v. 1st Addl. District Judge, Muzaffarnagar, 1996 (28) ALR 539, took the view that where the landlady is allowed to live by her brother in a portion exclusively owned by him, the need of the landlady for her own portion will be bona fide and genuine. If the divorced sister wants to live separately in the portion which has been given to her by her father for her personal residence till her life time and if she possesses no other portion or accommodation wherein she could live or stay as of right, her need for her own por tion cannot be said to mala fide or not genuine merely on the basis that her brother did not file any affidavit in support of her claim. The finding of the lower appellate authority on ihc question of bona fide need thus does not suffer from any infirmity or error of law. The lower appellate authority has also examined the question of compara tive hardship and has recorded a clear cut finding based on cogent reasonings that in case the application is rejected the landlady would suffer a greater hardship than that of the tenant who made no efforts to obtain any other alternative accom modation during all the period when the release application remained pending before the authorities below.
(3.) FOR the reasons slated above, this writ petition is liable to be dismissed. At this juncture learned counsel for the petitioner requested that some reasonable time may be allowed to the petitioner to vacate the accommodation in question so that he could find out some alternative accommodation to shift. This prayer has been opposed by respondent's counsel but this Court in the facts and circumstances of the case feels it expedient in the interest of justice to allow six month's time to the petitioner to vacate the premises in question on the condition of his filing an undertaking on affidavit before the Prescribed Authority within a period of four weeks from today to the effect that he shall vacate and hand over possession of the accommodation in ques tion peacefully to Respondent No. 3 without inducting any third person there in, within six months from today. In case no such undertaking is filed within the time specified above, this order postponing the delivery of possession to the landlady shall stand vacated automatically. In order to enable the petitioner to file the undertak ing, it is ordered that the order of release shall not be enforced by the landlady-Respondent No. 3 for a period of four weeks and if the required undertaking is filed and accepted within the period specified above, the enforcement of the release order shall remain in abeyance for a period of six months from today.;