JUDGMENT Vikram Nath, J.
1. This writ petition filed by the landlady is directed against the judgment and order dated 23.4.1987, 20.4.1987 and 10.12.1985, passed by respondent Nos. 1 and 2 whereby the application of the landlady for declaration of vacancy and subsequent release in her favour has been dismissed.
2. The dispute relates to two rooms situated on the ground floor of house No. 109/357, Ram Krishna Nagar, Kanpur of which the petitioner is the landlady and one Radhey Shyam Sonkar was the tenant of the aforesaid disputed accommodation. It is alleged that the family of Radhey Shyam consisted of himself his wife Smt. Shitla Devi and five sons and two daughters namely Nand Lal, Jaswant, Sri Krishna, Balwant, Suraj, Urmila and Km. Manno. Radhey Shyam Sonkar acquired vacant accommodation comprising of 107/3, Dwarikapuri Bazar, Kanpur, further his son Nand Lal purchased House No. 107A/6 Chandra Nagar, Kanpur in the name of his wife Smt. Saroj. It was further alleged that Radhey Shyam acquired two quarters at 107/3B, Dwarikapuri Bazar, Kanpur and plot No. 257, Dwarikapuri Bazar, Kanpur. On these allegations the landlady (petitioner) filed an application for declaration of vacancy and for release in view of the provisions contained under Section 12(3) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act), on the ground that the tenant and members of his family have purchased and acquired different accommodation therefore, deemed vacancy had occurred. This was registered as Case No. 118 of 1984. On the said application report was called for from the Rent Control Inspector who submitted his report-dated 24.5.1984 in which it was reported that House No. 109/357, Ram Krishna Nagar, Kanpur is owned by Smt. Urmila Devi (petitioner). It was further reported that the widow of Radhey Shyam Sonkar and son of Radhey Shyam Sonkar were residing in the disputed accommodation. It was further reported that Balwant Kumar and Nand Lal sons of Radhey Shyam were residing in House No. 107/6A, Chandra Nagar, Kanpur. The Rent Control Inspector has further mentioned in his report that in the House No. 107/6A, Chandra Nagar, further constructions were made and it has about four rooms, court yard, latrine, bathroom, etc. and further that Radhey Shyam had acquired two shops where his sons were carrying on business of selling pig meat. Both the parties exchanged affidavits before the Rent Control and Eviction Officer.
3. The Rent Control and Eviction Officer vide order dated 10.12.1985 came to the conclusion that Radhey Shyam had died in 1983 and any accommodation acquired by any of his heirs after his death would not attract the provisions of Section 12(3) of the Act and further the acquisition of House No. 107/6 Chandra Nagar in which Nand Lal was residing was in the name of his wife who did not fall within the definition of the family of tenant and, therefore, there was no vacancy and he accordingly rejected the application of the landlord for declaration of vacancy and release. Aggrieved by the same, the landlady (petitioner) filed revision under Section 18 of the Act which was registered as Rent Control Revision No. 219 of 1985. The 7th Additional District Judge vide judgment dated 20.4.1987 dismissed the revision relying upon judgment in case of Chet Ram v. Bhagwan Das 1985 (2) ARC 18 and also in the case of Mohd. Azim v. District Judge, Aligarh 1985 (2) ARC 89, held that only in such case where the heirs who resided with the tenant at the time of his death alone, if had acquired any accommodation prior to his death would be covered by Section 12(3) of the Act and not if any of the heirs after the death of the main tenant acquired any house. In such cases it cannot be held that there existed any vacancy inasmuch as all the heirs would be joint tenants and they would have individual interest.
4. Aggrieved by the said judgment the landlady has approached this Court by means of the present writ petition.
5. I have heard Sri Ajay Sharma, learned Counsel for the petitioner and Sri S. M. Dayal, learned Counsel for the respondent Nos. 3 to 7.
6. The contention of the learned Counsel for the petitioner is that both the courts below have failed to consider the aspect that two sons Nand Lal and Jaswant who were admittedly residing with Radhey Shyam, the tenant having acquired separate accommodation during the life time of the tenant Radhey Shyam, and Radhey Shyam himself having acquired additional accommodation, during his life time there would be deemed vacancy in terms of Section 12(3) of the Act. It is further contended that in order to claim that the provisions of Section 12 (3) of the Act were not attracted, for the reason that the members of the family who had acquired additional accommodation were not normally residing with the tenant and were not wholly dependent on the tenant will have to be proved and established by the tenant or the members claiming such exception.
7. The burden to prove that the members of the family were not normally residing nor wholly dependant on the tenant would lie on the person claiming such benefit. The burden of the landlady was to prove acquisition of additional accommodation in the same city which admittedly the landlady had established and is also admitted to the respondents. Sri Nand Lal was admittedly residing with the tenant till 1981, when he shifted out to acquire building in Chandra Nagar, Acquisition necessarily does not mean ownership. Nand Lal had admittedly acquired the property of Chandra Nagar House No. 107/6A in the name of his wife and both the family of Nand Lal and his brother Balwant were residing there who were previously residing in the premises in dispute during the life time of Radhey Shyam. It is also not disputed that the property of Chandra Nagar was acquired during the lifetime of Radhey Shyam and that Nand Lal and Balwant had shifted to the said acquired property during the lifetime of Radhey Shyam. In these circumstances it is contended that both the courts below have erred in not declaring vacancy and having proceeded to hold that as it was in the name of his wife, therefore, the provision will not be attracted. The contention has force. The courts below have wrongly ignored the acquisition of House No. 107/6A, Chandra Nagar, Kanpur.
8. Sri S. M. Dayal learned Counsel appearing for the respondent Nos. 3 to 7 has contended that even assuming that House No. 107/6A Chandra Nagar, having been acquired, the landlady (petitioner) has failed to discharge the burden that Nand Lal and Balwant were normally residing with the tenant and that they were wholly dependant on Radhey Shyam. In support of his contention he has relied upon following judgments:
(1) Smt. Ram Devi Shakhya and Anr. v. First Additional District Judge, Lucknow and Ors. 1981 ARC 305.
(2) Sri Nath Tandon v. R.C.E.O. and Ors. 1979 ARC 351.
(3) Som Nath Seth v. IInd Addl. District Judge, Rampur and Ors. 1981 ARC 82.
(4) Mohd. Azeem v. District Judge, Aligarh and Ors. 1985 (2) ARC 84 (SC).
(5) Harish Tandon v. A.D.M., Allahabad and Ors. 1995 (1) AWC 106 (SC) : 1995 (1) ARC 220 (SC).
9. On the other hand Sri Ajai Sharma, learned Counsel for the petitioner has relied upon the judgment in Syed Mazahar Mustafa Jafri and Anr. v. Rent Control and Eviction Officer, Allahabad and Ors. 1992 (1) AWC 190, and on its strength has contended that the burden to take advantage of the proviso to Section 12(3) of the Act would lie on the tenant and he has to prove that the members of the family who had acquired the accommodation were neither normally residing nor wholly dependant upon him in case, the tenant has failed to establish this fact, he could not claim protection under the proviso to Section 12(3) of the Act.
10. I have considered the judgments relied upon by the both sides and have also perused the orders impugned in the writ petition. The revisional court has not examined the matter from this angles as to whether the burden had been discharged properly or not. Normally considering the facts it would have been a fit case for remand but considering the facts that the sons who were living with the tenant had acquired separate accommodations and were living in the acquired accommodations and more than 20 years having lapsed since the filing of the application and initiation of the proceedings the matter is being finally decided. Section 12(3) of the Act is in respect of residential building. It clearly refers to acquisition of residential building by the tenant or any member of his family. It further stipulates that the tenant shall be deemed to have ceased to occupy the building. In the present case the acquisition of the residential building and further construction of residential building by the sons of the tenant is not disputed. It is also not disputed that the acquisition had been made during the lifetime of the tenant by his sons. Merely because one house was purchased in the name of the wife of one son cannot give any benefit to the respondents. No evidence has been placed by the respondent to show that it was purchased from the own sources of the wife of the son. It is a normal practice to purchase property in the name of wife to save from eviction, save from income-tax etc. In The transactions are mostly benamio and are actually executed for so many reasons. Further the other accommodation acquired was in the V name of the other son where they were living. The question for determination would be whether the acquisition was made during the lifetime of the tenant Radhey Shyam or after his death. The acquisition of the various residential buildings were in the life time of the tenant Radhey Shyam. These acquisitions were made in 1981-82 where as Radhey Shyam undisputedly died in 1983. Therefore, the tenancy of Radhey Shyam ceased under the Act and there is no question of any individual tenancy rights of the sons, daughters and widow. When Radhey Shyam himself ceased to occupy the premises after his death the heirs could not inherit any better right than Radhey Shyam. The reasoning given by the courts below therefore cannot be sustained. Deemed vacancy occurred at the time of acquisition of residential building by any of the family members. In this case at least two if not three of the family members had acquired residential accommodation during life time of the tenant. Thus, there was deemed vacancy in the premises in question.
11. Further from the record it appears that the landlady had sought for release of the accommodation. This aspect of the matter may be examined by the Rent Control and Eviction Officer in accordance with law.
12. In view of the discussion made above the writ petition succeeds and is allowed. The impugned order of the courts below holding that there is no vacancy are set aside. The premises in dispute is declared to be deemed vacant. The matter regarding release of the premises in favour of the landlady petitioner is sent back to the Rent Control and Eviction Officer for being decided in accordance with law.