LAJPAT RAI MALHOTRA Vs. SHIV CHARAN DASS

JUDGEMENT

(1.) THIS petition arises out of proceeding under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act).

(2.) RESPONDENT No. 1 filed an application on July 16, 1976, under Section 21(1)(a) of the Act seeking the eviction of the petitioner. The building in the tenancy with the petitioner is described as bearing Municipal No. 89. The application was based on the ground of requirement of residential purpose by the landlord for himself and the members of his family. The Prescribed Authority under order dated September 12, 1978, rejected the application. In appeal filed by the respondent No. 1 the decision arrived at by the Prescribed Authority was reversed and the application for release was allowed. Aggrieved, the tenant has approached this Court.

(3.) THE other contention for the petitioner is that the upper floor of House No. 89 was in occupation of one Prem Dayal Halwai as tenant. In or about the year 1980, he built his own house on account of which he vacated the same and shifted to his newly built house. The contention is that the portion in his occupation became available to the respondent No. 1 landlord for occupation by himself and other members of his family. In support of this contention the learned counsel refers to the affidavit had been filed by the petitioner before the Appellate Authority on 8th of January, 1980. A copy of this affidavit is Annexure 5 to the rejoinder affidavit. The record does not indicate that there was a counter-affidavit filed in reply to this form the said of respondent No. 1, landlord, nor is there any discussion on this aspect of the matter in the judgment recorded by the Appellate Authority. Since this was an event which took place subsequent to the decision recorded by the Prescribed Authority on September 12, 1978, it was relevant for being considered by the Appellate Authority. For the respondent No. 1 it is strenuously urged by the learned counsel that there is no such plea by the petitioner in the writ petition filed by him. In paragraph 4 of the counter-affidavit of this petition, it would appear, respondent No. 1 has himself raised a controversy in regard to the title of House No. 89. It has been sought to be made out that the portion in occupation of Prem Dayal Halwai did not belong to respondent No. I landlord it was found of his brother Radhey Shyam. On this basis the contention appears to be that due to that portion having fallen vacant, the respondent No. 1 is not a beneficiary. This is what was refuted by the petitioner in the rejoinder-affidavit contending that from a perusal of the deed of sale dated August 19, 1970 it would appear that the portion purchased by Radhey Shyam was numbered as 89/A and 89/B and is different from House No. 89 as such and further that the portion that had fallen vacant pertains to House No. 89. Be that as it may, the material point for consideration at this stage merely is that there is no adjudication by the Appellate Authority on the material aspect, namely, whether the portion vacated by Prem Dayal Halwai belongs to respondent No. 1 landlord and secondly as to whether the same is still available for occupation by respondent No. 1 and thirdly as to whether the same stands released in his favour. This may be considered material because it may be relevant while determining subsisting bonafide requirement for residential purpose set up by respondent No. 1 and also in assessing the balance of comparative hardship resulting to the parties.