SHEEL KUMAR MISHRA Vs. USHA RANI MISHRA

JUDGEMENT

(1.) The core question in the petition is as to whether the disputed accommodation is vacant or not.

(2.) Briefly stated, the facts are that one Ram Chandra Mishra was the tenant of a portion of the disputed house No. 3A, 274, Azad Nagar, Kanpur. He was selected for the post of store and purchase officer in the National Dairy Research Institute, Karnal. in the year 1964. He shifted to Karnal with his entire family from the disputed house. After him, it was occupied by his elder brother, R. A. Mishra. In the year 1965 Sri R. A. Mtshra died and after his death the petitioner, his son. continued to occupy the same along with his younger brother, Sunil Kumar Mishra.

(3.) The landlords of the house in question sold it on 10.8.1990 by executing three separate sale deeds, one in favour of Smt. Usha Rani Mishra. the wife of the husband of his younger brother. Sunil Kumar Mishra : the second to Rajiv Prakash. respondent No. 2 and the third to Mrs. Neeta Awasthi. The dispute in the present case relates to the portion which was sold to respondent No. 2. After execution of the sale deed by the previous landlord, one Sri P. S. Chauhan filed application for allotment on 26,9.1990 before the Rent Control and Eviction Officer, alleging that the house in question was likely to fall vacant. The Rent Control Inspector submitted report on 7.1.1991 that the petitioner and hts brother Sunil Kumar Mishra were found in possession. It was reported that the petitioner and the family of his brother were residing in the disputed house for the last 25 years and there was no vacancy. The petitioner filed written statement before the Rent Control and Eviction Officer on May 7, 1991, alleging that he was residing in the disputed house as a tenant with the consent of the landlord since the year 1964-65. Rajiv Prakash, the owner of the house, filed objection that the accommodation in question be declared as vacant as the petitioner has no right to continue to occupy the disputed house. The Rent Control and Eviction Officer by his order dated 24.7.1991 declared the disputed accommodation as vacant and, on 6.8.1991, he passed order releasing the disputed accommodation in favour of respondent No. 2 on an application filed for release under Section 16 (1) (b) of the U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act. 1972. (in short the 'Act').