MANMOHAN JHA Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) R .C. and E.O. declared/notified vacancy of the house in dispute initially on 25.4.1986. Late Sri Jagannath Misra was the tenant of the house in dispute. He filed objections on 1.5.1986 alongwith affidavit. Copy of the affidavit is annexure -3 to the writ petition. Alongwith affidavit. Sri Jagannath Misra annexed copy of his ration card showing number of family member as one. Sri Jagannath Misra died on 24.10.1986 and left behind two sons, respondent No. 2 Sri Bhagwati Prasad Misra (B.P. Misra in short) and Sri M.P. Misra. Respondent No. 2 filed impleadment/substitution application after the death of his father, which was allowed. Thereafter, R.C. and E.O. by order dated 11.6.1990 held that respondent No. 2 was not residing with his father original tenant Sri Jagannath Misra at the time of his death hence by virtue of definition of tenant given under section 3(a) of U.P. Act No. 13 of 1972, he did not become the tenant. After the death of his father R.C. and E.O. by the said order rejected the objections filed against earlier order passed by his predecessor declaring/notifying the vacancy. Respondent No. 2 had taken a case that he was employed in Indian Railways and posted at Lucknow and due to non -availability of proper accommodation at Lucknow he was keeping his family at Kanpur in the house in dispute and coming to and going from Lucknow daily. R.C. and E.O. did not believe the said version for the reason that respondent No. 2 did not file M.S.T. (Monthly Seasonal Ticket issued by railways). R.C. and E.O. Vth City Magistrate, Kanpur Nagar by the same order dated 11.6.1990 passed in case No. 13 of 1989 relating to house No. 4/274 Gaushala Society, Purana Kanpur, Kanpur Nagar allotted the building in dispute in favour of the petitioner. Respondent No. 2 filed a revision against the said order being Rent Revision No. 103 of 1990. A.D.J./Special Judge (E.C. Act), Kanpur Nagar through judgment and order dated 22.8.1991 allowed the revision and set -aside the order of R.C. and E.O. which was impugned in the revision hence this writ petition.

(2.) IT is admitted to the parties that petitioner got possession of the property in dispute in July, 1990 through police force. Learned Counsel for the landlord respondent No. 2 argued that possession was taken by petitioner inspite of stay order in favour of respondent No. 2. However no document has been filed to show that on the date when police delivered possession to petitioner there was any stay order in existence.