JUDGMENT Vikram Nath, J.
1. This writ petition has been filed by the landlord for quashing the judgment dated 11.11.1983, passed by IIIrd Additional District Judge, Aligarh, in UPUB Revision No. 87 of 1983, whereby the order of the Rent Control & Eviction Officer declaring vacancy and also releasing the premises in favour of the landlord has been set aside.
2. Dispute relates to shop described as No. 7/25, Subhash Road, Aligarh. The original owner and landlord was Vichitra Behari. The premises was in tenancy of Sri Jugal Kishore, who died sometime in August 1998. On the death of Sri Jugal Kishore, the landlord Vichitra Bihari filed an application for declaration of vacancy and release under Section 16 of the U.P. Urban Buildings (Regulation of Letting Rent & Eviction Act, 1972 (for short the 'Act') on the ground that there were no heirs of Sri Jugal Kishore, as mentioned in Paragraph 4 of the application dated 4.9.1978. It was further stated in Paragraphs 5 of the application that after death of Jugal Kishore, the opposite party to the application Sri Kishan Chand had illegally occupied the shop without consent of the landlord and, therefore, he was unauthorized occupant. Kishan Chand filed reply with affidavit to the release application stating that as he had been working along with Jugal Kishore for the last more than 20 years his possession/occupation of the shop in dispute was lawful and with the consent of the landlord, as he had accepted rent from him. It was further alleged in Paragraph 6 of the reply that Jugal Kishore had not died heirless as alleged by the landlord, but had left behind his daughter Smt. Mithilesh Kumari, two grandsons and two grand daughters who were all alive and have succeeded to the tenancy of Jugal Kishore under the Act. The Rent Control and Eviction Officer declared vacancy vide order dated 16.10.1979 and subsequently, vide order dated 26.8.1983 released the premises in dispute in favour of the landlord holding his need to be bona fide. It would be relevant to mention that after declaration of vacancy and before the order of release, Vichitra Bihari, the owner had transferred his ownership rights by means of sale deed dated 19.11.1981 in favour of Shankar Lal, the present petitioner. The orders dated 16.10.1979 and 26.8.1983 were challenged by means of revision under Section 18 of the Act before the District Judge, Aligarh. The revision was transmitted to the Court of IIIrd Additional District Judge, Aligarh who vide judgment dated 11.11.1983 allowed the same and has held that the order declaring vacancy and releasing the premises in favour of the landlord Shankar Lal was illegal and, accordingly, quashed the same. Aggrieved by the judgment of the Revisional Court dated 11.11.1983, the landlord has filed this writ petition.
3. I have heard Sri Manoj Kumar Gupta, learned Counsel for the petitioner and Sri Diwakar Rai Sharma, learned Counsel for the respondents.
4. Sri Manoj Kumar Gupta, learned Counsel for the petitioner has contended that the Revisional Authority, while exercising the powers under Section 18 of the Act exceeded its jurisdiction in appraising the evidence on record and recording finding on question of fact after setting aside the finding of the Rent Control & Eviction Officer. His contention is that the judgment of the Revisional Court, being vitiated in law, is liable to be set aside and the order of the Rent Control & Eviction Officer be maintained. It has been pointed out by the learned Counsel for the petitioner that respondent No. 3 Sri Kishan Chand had set up contradictory and inconsistent case before the Rent Control & Eviction Officer as will be apparent from a perusal of the reply filed by Kishan Chand and the affidavit filed by him. It was further pointed out that no heirs of the tenant, being in the same profession tenant could not be permitted to hold the shop in dispute, and therefore, the order declaring the vacancy consequently, liable to be set aside.
5. On the other hand, it has been contended by Sri Diwakar Rai Sharma, learned Counsel for the respondents that the landlord, having filed the application, on completely false and incorrect facts was not entitled to release of the premises and the petition should be dismissed. In the application for declaration of vacancy and release the basis taken was that main tenant have having died, without leaving any heir, as such vacancy may be declared. This fact has been found to be incorrect as a matter of fact and it is also admitted to the petitioner.
6. Thus, on the death of the tenant Jugal Kishore his heirs succeeded to the tenancy. Question of vacancy arises under the conditions mentioned in Section 12 of the Act. The case set up in the release application was on the ground that it had been allowed to be occupied by persons not of the family of original tenant. Thus, it is true that the release application was filed on incorrect facts.
7. The next question comes for consideration is whether the premises in dispute was in occupation of a person, who is not a heir of the deceased tenant. This question could only be decided on the basis of the material on record as it appears to be question of fact. A perusal of the order declaring vacancy and the order releasing premises in dispute gives a clear indication that the Rent Control & Eviction Officer has proceeded on the basis that inconsistent grounds taken by, Sri Kishan Chand. However, the aspect of the release application having been filed giving incorrect facts has not been taken into consideration. On the other hand, the Revisional Court has considered all the material on record and recorded specific findings on the release application which was based on incorrect facts and that there was no inconsistent stand taken by Kishan Chand in his reply and the affidavit. Considering the said documents and also the other documents on record, the Revisional Court came to the conclusion that there was no vacancy. The finding being finding of fact could not have been recorded by the Revisional Court. It ought to have remanded the matter to the Rent Control & Eviction Officer to record fresh findings in view of irregularities found. The revisional Court apparently exceeded its jurisdiction.
8. In view of the facts and circumstances of the case as discussed above, it would be appropriate that the matter may be remanded to the Rent Control & Eviction Officer to consider respective pleading of the parties and the evidence on record and to give afresh finding on the question of vacancy and thereafter, proceed in accordance with law.
9. In the result, the writ petition succeeds and is allowed. Impugned judgment dated 11.11.1983 passed by the IIIrd Additional District Judge, Aligarh, is set aside and the matter is remanded to Rent Control & Eviction Officer, Aligarh to decide the question of vacancy afresh. Since the matter is being sent to the Rent Control & Eviction Officer, the order dated 16.10.1979 declaring vacancy and the order dated 26 August 1983 releasing the premises in favour of the landlord are also set aside.