B N TEWARI Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) BOTH these petitions are connected and can be disposed of by one common judgment. The petitions have arisen out of an application for release under Sec. 21 (1) (a) of the U. P. Act No. 13 of 1972, which was given by the landlady Smt. Shanti Shah against her tenant Sri B. N. Tiwari.

(2.) THE facts, in brief, are these : Smt. Shanti Shah is the landlady and Sri B. N. Tewari is the tenant in the accommodation in question. THE accommodation is suite no. 5 on the first floor of a building known as 'Shanti Niketan', situated in Malli Tal in Naini Tal. This rented accommodation consists of four big rooms, two lavatories and two rooms in the out-houses. THE landlady applied for release of the said accommodation under Sec. 21 (1) (a) of the said Act. A true copy of the said application is annexure no. 'C' to Civil Misc. Writ petition no. 4819 of 1980, i. e. the tenant's writ petition. As will be evident from the prayer set out in the said application, the landlady expressed her willingness to share the accommodation in question with the tenant's son who, according to her, alone was in occupation of the accommodation in dispute. THE stand of the landlady throughout the release application and even in this Court has been that she would be satisfied if two rooms and the lavatories on the first floor were released to her out of the four rooms and lavatories on the first floor of the building in question. Of course, she also in addition sought the release of a portion of the out-house which was sought to be used as kitchen. THE tenant contested the said release application. THE Prescribed Authority by a detailed order dated 28-8-1979 allowed the application for release in part. THE details of the released accommodation are given in the operative part of the said order with reference to a map which was made a part of the said order. In broad terms, the Prescribed Authority released one room out of the four rooms on the first floor, lavatory and half portion of the out-house in the tenancy of Sri Tewari. Both sides felt aggrieved and went up in cross-appeals before the appellate court. THE appellate court dismissed both the appeals by a common judgment, dated May 8, 1980, a true copy of which is on record as Annexure 'A' to the petition of Sri B. N. Tewari, the tenant. A certified copy of the order of the Prescribed Authority is annexure 'B' to the said petition.

(3.) TO appreciate the rival contentions, it is necessary that some more facts be stated. One Sri Inderlal Shah was possessed of big properties in Naini Tal. He died on 3-1-1976 and was admittedly succeeded by three heirs, namely, Sri J. P. Shah (bachelor son), the landlady in the case Smt. Shanti Shah (widow of predeceased son of Inderlal) and Smt. Sudha Shah, daughter of Smt. Shanti Shah. It was the case of the landlady that after the death of Sri Inderlal Shah, there was an oral partition between the co-owners of the property and as a result of the said oral partition, properties were allotted to each of the three co-owners. Admittedly, the building known as Shanti Villa was allotted to Smt. Sudha Shah. It is in this building that the landlady is presently residing. The landlady came forward with a case that she wanted to reside separately from her married daughter and, therefore, she sought the release of a part of the suite in question from Sri Tewari, who was occupying the same as a tenant. Sri Tewari's defence, inter-alia, was that the alleged partition was fictitious and it was not real. Its only aim was to get rid of the tenants. Certain circumstances were pointed out to establish the said contention. They have been examined by the authorities below. Inter-alia, it was suggested that if the partition was genuine, the landlady would have insisted on getting a portion of the property which was not in occupation of the tenant and it was some-what artificial that whereas Smt. Sudha Shah was given the entire Shanti Villa which was in self occupation of the co-owners, the tenanted buildings were allotted to the share of Sri J. P. Shah and Smt. Shanti Shah. It was further contended that there was no written document evidencing the partition. It was alleged to be oral. Learned counsel contended that the mere fact that on the basis of the oral partition, mutation was effected in the municipal records did not go to establish the genuineness of the transaction. Further, it was contended that the division was wholly unequal and extra-ordinary in the sense that Smt. Sudha Shah was getting the best of the allotment of the properties and the two other co-owners were allotted strikingly less valuable properties. It was contended that there was no real occasion for the co-owners to divide the properties and the entire exercise had only one single motivation and that was, as stated above, to get rid of the tenant.