- (1.) YATINDRA Singh, J. This is the landlady's Writ Petition against the order dated 5-8-1986 passed by Respondent No. 1 in appeal under Section 22 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (the Act for short ). The Respondent No. 1 by the impugned order has allowed the appeal of the tenant and dismissed the application of the landlord.
(2.) IT is admitted case that initially the property in dispute belonged to one Sri Hamiduddin Ahmad. He gifted the property to his three daughters. The daughters subsequently partitioned the house into three portions. Kanpur Nagar Palika accepted this partition and separate numbers have been allotted to these parti tioned portions. According to the petitioner they are residing in a part of the building where the Respondent No. 2 is residing. IT is their further claim that in the partition the portion which has been given in the share of petitioner Nos. 1 and 2 is in occupation of the tenant - Respondent No. 2 and the petitioner are partly in the por tion of their share, but mostly they are occupying the share of the third sister Smt. Mehraj Wasi (third sister for short ). IT ;s further allegation of the petitioner that third sister has given them notice to vacate her portion which is occupied by them. IT is for this reason that they filed the applica tion for release of their share. The Prescribed Authority con sidered the evidence on record and has come to the conclusion that the entire building was gifted in favour of the three daughters and it has been partitioned. The Prescribed Authority further found that a notice has been given by the third sister to the petitioner to vacate the portion oc cupied by them. The need of the petitioners was held to be bonafide. The Prescribed Authority has further held that so far as the tenant is concerned he has got two buildings one is situate at 177/138, Sarvodaya Nagar, Kanpur. The tenant purchased this and later on reconstructed it after demolition of the same in 1973. The other building tenanted is situate 130 L -1/90-A, Wakar Ganj, Kanpur. In view of this fact the Prescribed Authority has held that greater hardship will occasion to the petitioners in case their application is rejected. Aggrieved by the order the tenant filed an appeal. This appeal has been al lowed. The appellate Court has held that so far as building at 177/138, Sarvodaya Nagar is concerned, this at present is used for non-residential purposes and as such Explanation I, Section 21 (1) does not apply. Thereafter he has held so far as the third sister's husband is concerned he has been posted to Bombay and as such the need of the petitioner is not bonafide. On this basis the appellate Court has allowed the appeal of the tenant.
(3.) AGGRIEVED by this order petitioner have filed present Writ Petition. Both the Courts below have given finding that property was gifted to three sisters and the partition is amongst them, it has been held as valid, no objection can be taken thereto and the application of the petitioners can not be rejected on this ground. Once this finding has been given then admittedly petitioners are occupying the portion of the third sister. They were not the tenant of the third sister and were living merely as a licensee. The third sister wanted them to vacate the portion, which was given to her. Even if third sister's husband had gone to Bombay does not mean that petitioner's need to live in their portion is not bona fide. The need of the petitioner cannot be denied. The Prescribed Authority after considering the evidence on record has compared the hardship and has given find ing in favour of the petitioner. The appel late Court has not gone into this question on the ground that the house at Sarvodaya Nagar was at present being used for com mercial purpose. Be as it may, there is a finding in favour of the petitioners from the Prescribed Authority. Apart from this the tenant has already got two buildings. The greater hardship will occasion to the petitioner in case their application is rejected. The judgment of the appellate Court dated 5-8-1985 is illegal and is quashed and that of the Prescribed Authority dated 24-8-1982 is restored. As no counter-affidavit has been filed, there will not be any order as to costs. Petition allowed. .;