R.BANUMATHI,J. - (1.)These appeals arise from the judgment of the High Court of Uttarakhand at Nainital in Writ Petition(MS) No. 2729 of 2014 dated 09.03.2015 dismissing the writ petition and also the review petition, thereby affirming the findings of Additional District and Sessions Judge-VII, Dehradun that the appellant is an unauthorized occupant in suit premises and that he does not come within the definition of 'family ' of the deceased tenant as per Section 3(g) nor an 'heir ' under Section 3(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
(2.)Brief facts which led to filing of these appeals are as under : The respondent-landlord filed an eviction petition before the Competent Authority/Civil Judge, (Senior Division) under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as the 'U.P. Act XIII of 1972 ') for release of property from the tenant-Late Lalita Devi from the suit property bearing No.6/7, Amrit Kaur Road, (New Road), Dehradun on the ground of his bona fide need. Father-in-law of deceased Lalita Devi -Hem Ram Sharma had taken the suit property on rent and after his death his son Baldev (husband of Lalita) became the tenant of the suit property and after the death of Baldev, Lalita became the tenant of suit property. The appellant is the brother of deceased Lalita, who was the tenant of the respondent herein. The application was dismissed vide order dated 19.04.2010 by the Prescribed Authority. Aggrieved by the said order, respondent-landlord preferred an appeal under Section 22 of the U.P. Act XIII of 1972 before the appellate court which was transferred to Additional District Judge-VII, Dehradun. During the pendency of appeal, tenant-Lalita Devi passed away on 06.07.2013. The respondent-landlord moved a substitution application before the appellate court with a prayer that the appellant, who is the real brother of deceased, be substituted in her place. The said application was allowed and the appellant was impleaded as a defendant/respondent in the said appeal. The appellate Court allowed the said appeal vide order dated 10.10.2014 holding that during the pendency of the appeal the sole tenant- Lalita passed away and Durga Prasad, who has been substituted is not a member of the 'family ' and that he has not been able to prove that he was previously residing with his sister Lalita in the said premises. On those findings the appellate court set aside the order of the prescribed authority and allowed the appeal. Thereafter the appellant-tenant preferred a writ petition before the High Court which was dismissed vide the impugned order dated 09.03.2015, holding that the appellant does not come within the definition of 'family ' as per Section 3(g) of U.P. Act XIII of 1972. The High Court further held that vacancy was liable to be declared on the demised premises, on the death of sole tenant - Lalita, the review application filed by the appellant also came to be dismissed vide order dated 31.08.2015. Both the orders are impugned in these appeals.
(3.)Mr. Parthiv Goswami, learned counsel for the appellant contended that the High Court erred in holding that the appellant is not a legal heir or representative of the deceased tenant and the said finding is perverse and contrary to the materials on record. Learned counsel further submitted that on the death of the tenant Lalita, respondent-landlord himself filed an application for substitution of the present appellant as the legal heir of the deceased tenant Lalita and the address of the appellant at the time of filing of the application was shown as the same disputed property i.e. House No.6/7, Amrit Kaur Road, Dehradun and which by itself establishes that appellant has been residing in the said property at the time of death of tenant Lalita. The learned counsel for the appellant has placed reliance upon Ganesh Trivedi vs. Sundar Devi and Others (2002) 2 SCC 329 to contend that the brother would inherit the tenancy and would fall within the definition of 'family '.