LALA RAM AUTAR Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This writ petition was initially allowed on 5.12.2005 without hearing any one on behalf of tenants respondents as on said date no one had appeared on their behalf. Later on restoration/ rehearing application was filed, which was allowed on 6.2.2006 and judgment dated 5.12.2005 was set-aside. Thereafter learned Counsel for both the parties were heard on the merits of the writ petition on 13.2.2006 and 15.2.2006. On 15.2.2006 after completion of argument of learned Counsel for both the parties' judgment was reserved.

(2.) This is landlord's writ petition arising out of suit for eviction filed by him against tenant respondent No. 3 and 4 Pratahu Dayal and Net Ram. The suit was registered as SCC Suit No. 39. of 1981. The eviction was sought on the ground of default and sub-letting. It was alleged in the plaint of the suit that Prabhu Dayal had been allotted the house in dispute; that Prabhu Dayal had constructed his own house and had shifted therein along with his family and had allowed Net Ram defendant No. 2 his real brother to occupy the house which amounted to sub-letting. Trial court/ JSCC / I Munsif Bulandshahr did not accept the contention of the plaintiff and held that occupation of brother did not amount to sub-letting. The suit was therefore dismissed on 19.11.1933. Against the said judgment and decree landlord petitioner filed R.C. Revision No. 102 of 1983. II Additional District Judge, Bulandshah dismissed the revision on 26.8.1985, hence this writ petition by the landlord.

(3.) Brother is not included in the definition of family as provided under Section 3(g) of U.P. Act. No. 13 of 1972. By virtue of Sections 20(2)(e), Section 25 and Section 12(1)(b) of the Act, if a tenant allows a tenanted building to be occupied by any person who is not a member of his family then it amounts to sub-letting. Supreme Court in G. Trivedi v. S. Devi AIR2002 SC 676 , 2002 (4 )AWC2714 (SC ), JT2002 (Suppl1 )SC38 , 2002 (1 )SCALE199 , (2002 )2 SCC329 , 2002 (2 )UJ974 (SC ) has held that residence of brother along with the tenant does not amount to subletting however if tenant has completely vacated the tenanted building and the same is in exclusive occupation of his brother then it amounts to sub-letting. The fact that Prabhu Dayal has constructed his own house and had shifted therein has not been denied.