JUDGMENT S.U. Khan, J.
1. This is landlord's writ petition arising out of eviction/release proceedings initiated by him on the ground of bonafide need under Section 21 of U.P. Act No. 13 of 1972 against original tenant-respondent No. 2 Mewa Lal in the form of P.A. Case No. 4 of 1978 before the Prescribed Authority/Munsif Shahganj, Jaunpur, Property in dispute is double storied accommodation containing four Khani shop on the ground floor and four rooms on the first floor, which are being used by the tenants for residence. Original tenant Mewalal, respondent No. 2 has died and has been survived by legal representatives. In the release application tenant Mewalal filed written statement and pleaded that Naseem Ahmad was not the only landlord. In this regard reference was made to a suit which had been filed by some of the alleged co-sharers in which Naseem Ahmad was also a party, which was decreed exparte on 26.3.1982 (Original Suit No. 44 of 1971). It was also pleaded that two of the sons of original tenant Mewalal i.e. Radhey Shyam and Sita Ram had purchased 1/9th share of the property in dispute from one Shafi-ullah whose mother Habibunnisha was sister of petitioner's father.
2. Prescribed authority held that Naseem Ahmad, petitioner was sole landlord. It was also held by the Prescribed Authority that his need was bonafide. However, hardship of both the parties were not compared by the Prescribed Authority. Prescribe Authority allowed the release application on 2.1.1984. Against the said judgment and order Mewalal, original tenant filed Rent Control Appeal No. 2 of 984. Sita Ram, one of the sons of Mewalal, who had allegedly purchased 1/9th share in the property in dispute had also been impleaded in the release application. Sita Ram also filed appeal against judgment and order passed by Prescribed Authority being Rent Control Appeal No. 3 of 1984. After the death of Mewa Lal during pendency of this writ petition, his heirs were substituted including Radhey Shyam, also died thereafter and his heirs were substituted. Sita Ram is already Respondent No. 3 in this writ petition.
3. Appellate Court rightly found that findings of Prescribed Authority on bonafide need were actually no findings. Appellate Court therefore, remanded the two issues of bonafide need and comparative hardship to the trial court/Prescribed Authority. The said order was passed on 11.1.1989 and is contained in Annexure '9' to the writ petition. There after Prescribed Authority on 17.2.1989 recorded detailed findings on bonafide need and comparative hardship in favour of the landlord through 11 pages order, copy whereof is Annexure '10' to the writ petition. Thereafter Appellate Court allowed both the appeals through judgment and order dated 21.4.90, hence this writ petition by the landlord.
4. Appellate Court held that when release application was filed Naseem Ahmad, the petitioner-applicant was not the sole owner landlord and during pendency of release application Radhey Shyam and Sita Ram sons of tenant Mewalal purchased 1/9th share through sale deed dated 5.11.1981 executed by other co-sharers, hence release application was not maintainable.
5. As far as the maintainability of release application by one co-owner landlord is concerned, it has been decided by a Full bench of this Court reported in Gopal Das v. A.D.J. 1987 (1) A.R.C. 281 that even one co-owner landlord can file release application under Section 21 of the Act.
6. As far as the question of merger of interest of landlord and tenant is concerned, recently a Three Judges Bench of the Supreme Court in P.K. Jaiswal v. Bibi Husn Bano 2005 (2) A.W.C. 1697 : A.I.R. 2005 S.C. 285 has held that even if tenant purchased a share in the tenanted accommodation, he continues to be tenant unless he purchases the total interest in the tenanted accommodation. In this view of the matter purchase of 1/9th share by the sons of the original tenant, who are now themselves tenants, does not bring to an end the relationship of landlord and tenant in between the petitioner and Mewalal, the original tenant and his legal representatives after his death.
7. As far as the partition suit ( O.S. No. 44 of 1971) is concerned, it was initially decreed exparte on 26.3.1982. Thereafter the said exparte decree was set aside. Thereafter suit was dismissed on merits through judgment and decree dated 29.9.2001 passed by Civil Judge (Junior Division) Jaunpur, (copy of the said judgment has been annexed as annexure S.A. "2" to the supplementary affidavit of the petitioner sworn on 4.9.2005).
8. As far as the finding on bonafide need and comparative hardship recorded by the Prescribed authority in its order dated 17.2.1989 are concerned absolutely no fault can be found with the said findings. Prescribed Authority held that petitioner landlord had no place to reside and no place to do business. Prescribed Authority also found that tenant was having his own house in which he was residing and in the said premises owned by him he was also doing business of oil expeller, flour mill and in one part of the said accommodation Gandhi Ashram was in tenancy occupation. Against Gandhi Ashram the tenant Mewa Lal did initiate any proceedings for eviction. The said findings are strictly in accordance with material on record and based on correct appraisal of evidence. Even factually there is nothing wrong in the said findings. It appears that no serious objections against the said findings were filed before the Appellate Court. Appellate Court in para 6 of its judgment mentioned that the two questions pertaining to bonafide need and comparative hardship were remitted to the Prescribed Authority and both these points had been answered in favour of the landlord by the Prescribed Authority. Thereafter Appellate Court did not say any thing regarding the said issues meaning thereby that the Appellate Court fully affirmed the same.
9. Accordingly writ petition is allowed. judgment and order passed by the Appellate Court is set aside. judgment and order passed by the prescribed Authority along with its findings dated 17.2.1989 are restored.
10. Tenants-respondents are granted six months time to vacate provided that:
Within one month from today they file an undertaking before the Prescribed Authority to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the accommodation in dispute to the landlord-petitioner.
(ii) For this period of six months which has been granted to the tenants to vacate they are required to pay Rs. 9,000/- (at the rate of Rs. 1500/- per month) as damages for use and occupation. This amount shall also be deposited within one month before the Prescribed Authority and shall immediately be paid to the landord-petitioner.
11. In case of default in compliance with either of these conditions, tenant-respondents shall be evicted after one month through process of Court.
12. It is further directed that in case undertaking is not filed or Rs. 9000/- are. not deposited within one month then tenant-respondents shall be liable to pay damages at the rate of Rs. 2500/- per month since after one month till the date of actual vacation.
13. Similarly, if after filing the aforesaid undertaking and depositing Rs. 9,000/- the accommodation in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs. 2500/- per month since after six months till actual vacation.