USHA DIXIT AND ORS. Vs. JAVED

JUDGEMENT

(1.) Heard Sri B.D. Shukla, learned Counsel for the petitioners and Sri Arun Kumar Shukla, learned Counsel appearing for respondent. By means of the present writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 11.4.2011, 4.5.2011 passed by the Rent Control and Eviction Officer, Kanpur Nagar and order dated 19.8.2014 passed by the Special Judge (SC/ST Act), Kanpur Nagar in Revision No. 55 of 2011, Smt. Usha Dixit and others v. Mohd. Javed. Vide order dated 11.4.2011, the Rent Control and Eviction Officer has declared the vacancy, whereas by the subsequent order dated 4.5.2011, the release application filed by the respondent-landlord has been allowed. In Revision No. 55 of 2011, both the orders were challenged, which was dismissed by the impugned order dated 19.8.2014.

(2.) While assailing the impugned orders, learned Counsel for the petitioners contends that the Rent Control and Eviction Officer as well as Revisional Court both have erred in not considering the documents and affidavits brought on record showing that Shiv Shankar Dixit, son of late Babu Lal, was living separately since before the life-time of his father and was not joint-tenant with Ram Shankar Dixit and recorded a finding that after the death of Babu Lal, Shiv Shankar Dixit as well as Ram Shankar Dixit have become joint-tenant and since Sri Shiv Shankar Dixit has acquired a house in the same municipal area, therefore, in view of sub-section (3) of section 12 of the U.P. Act No. 13 of 1972, the accommodation in dispute has fallen vacant.

(3.) The facts giving rise to this case are that one Sri Babu Lal Dixit was the original tenant of the accommodation in dispute. He had got three sons, namely, Sri Ram Shankar Dixit, Sri Shiv Shankar Dixit and Sri Hari Shankar Dixit. Babu Lal died on 1.1.2000. Thereafter, the tenancy devolved upon the sons of late Babu Lal, who were residing with their father and his wife. One Sri Javed (the respondent herein) purchased the house in dispute through registered sale-deed in the year 2009 from one Sri Srikant Dubey and thereafter, in the year 2011, to be more specific on 26.11.2010, he filed an application for declaration of the vacancy before the Rent Control and Eviction Officer, Kanpur Nagar. An inspection was made by the Rent Control Inspector and he reported that after the death of late Babu Lal, Ram Shankar Dixit, Sri Shiv Shankar Dixit and Hari Shankar Dixit, sons of late Babu Lal, became joint-tenant and one of the joint-tenant Sri Shiv Shankar Dixit has acquired another house in the same municipality, therefore, in view of sub-section (3) of section 12 of the U.P. Act No. 13 of 1972, the vacancy has occurred. After receipt of the report, notice was issued and an objection was filed. In the objection filed by the petitioners, it has been denied that Sri Shiv Shankar Dixit has acquired any own independent house. However, it has been admitted that Sri Shiv Shankar Dixit had been living separately since before the death of Babu Lal in house No. 713-B, Govind Nagar, in front of DBS College, Kanpur Nagar. The Rent Control and Eviction Officer has recorded a finding that the petitioners have neither filed any documentary evidence, nor produced any independent witness nor filed any affidavit showing that Sri Shiv Shankar Dixit had been living separately since before the death of Babu Lal and was not ordinarily residing with his father. A specific finding of fact has been recorded that after the death of Babu Lal, his sons, namely, Sri Shiv Shankar Dixit and Sri Ram Shankar Dixit have become joint-tenant, since Sri Shiv Shankar Dixit has acquired house No. 713-B, Govind Nagar, Kanpur Nagar, therefore, in view of sub-section (3) of section 12 of the U.P. Act No. 13 of 1972, the order declaring vacancy was passed on 11.4.2011. Immediately thereafter, an application was filed by the landlord on 26.4.2011 and the release application was allowed on 4.5.2011. Against both the orders, the present petitioners have filed revision. The Revisional Court too has found that there is no jurisdictional error while passing the order dated 11.4.2011 on the release application and dismissed the revision.