Dwarika Prasad and Another vs IInd Addl. District Judge Allahabad and Others

Sudhir Narain, J.—This writ petition is directed against the order of the prescribed authority dated 911997 allowing the release application filed by the landlordrespondent and the order of the appellate authority dated 1051999 dismissing the appeal against the aforesaid order.

Briefly stated the facts are that respondent No. 3 filed an application for release of the disputed shop under Section 21(1) (a) of U.P. Act No. 13 of 1972 with allegations that he has been running a Dal Mill under the name and style of M/s. Babulal Mathura Prasad Dal Mill which is a partnership business and the Mill is situated in premises No. 291/1, Muthiganj, Allahabad. The other partnership firm in which he is the partner is Prakash Dal Mill situated in house No. 2914, Muthiganj, Allahabad. He is only a partner and has some share in the said business. He wants to carry on independent business. He has also two sons. The petitioaer is a tenant of shop No. 292, Muthiganj, Allahabad. It was alleged that he would carry on business with his sons in the disputed shop.

The petitioner contested the application and denied that the need of the landlord is bona fide. The prescribed authority has recorded a finding that the need of the landlord respondent is bona fide as alleged by ''him. This finding has been affirmed by the appellate authority. These orders have been challenged by the learned counsel for the petitioners.

I have heard Sri Radhey Shyam, learned counsel for the petitioners, and Sri M.M.D. Agarwal, learned counsel for the respondent.

The learned counsel for the petitioner has assailed the finding on the question of bona fide need recorded by the authorities below. I have perused the impugned orders. It has been found that respondent No. 3 has only share in some other business. He requires the disputed shop to carry on independent business and his two sons also require the disputed shop to carry on business. I do not find this finding suffers from error of law.

The next contention of the learned counsel for the petitioners was that the disputed shop is a big one having an area 20 feet wide facing the road and 48feet inside On 1141999 I directed the appellantauthority to appoint an Advocate Commissioner to submit report regarding the exact measurement of the shop alter making a local inspection. In pursuance of the said order the appellate authority appointed a Commissioner and he has submitted a detailed report along with a map. There is no objection in regard to this report and the map. The petitioner is carrying on grain business, tie has also obtained licence from the Mandi Samiti. It was contended by the learned counsel for the respondent that the petitioner has a shop in the Mandi Samiti. Learned counsel for the petitioners has denied this fact and secondly, it is submitted even if he might be having a shop in Mandi Samiti, it is far away from the city itself and his business will be affected.

I seriously considered the matter and taking into consideration the length and width of the shop, to maintain the equities between the parties, instead of remanding the matter to avoid delay, I heard learned counsel for the parties on this matter.

8.1 think it proper that the shop may be partitioned keeping in view the nature of business of the petitioner and the proposed nature of business to be carried on by the landlordrespondent so that the equities may be adjusted.

It is directed that the petitioner shall be left with the portion marked by me as A B C D E F in the map and the rest of the area shall be handed over to the landlordrespondent No. 3. This map shall form part of this order. The petitioners will construct a partition wall on their own cost. The possession shall be handed over to the landlordrespondent within one month from today. The order of the authorities below are modified to the above extent and accordingly the writ petition is partly allowed. The parties shall, however, bear their own costs.