JUDGMENT

SABYASACHI MUKHARJI, J.:— Leave granted. The appeal is disposed of by the following judgment.

2. This appeal arises out of the judgment and order of the High Court at Allahabad, Lucknowd Bench, dated 15th February, 1988. It relates to the premises being shop No. 483/ 10 in House No. 483/7, Ward No. 11, Station Road, Rae Bareli, in U. P., hereinafter described as premises in dispute. The house was situated on the first floor of the aforesaid shop. The landlords of the aforesaid shop and house at present are S/Sh. Anand Kumar Agnihotri and Raj Kumar Agnihotri, being the sons of late Sh. Krishna Chandra Agnihotri, residents of Station Road, Rae Bareli.

3. After the death of the owner, Sh. Krishna Chandra Agnihotri, the entire property was divided amongst his sons and the present shop and house have fallen in the share of the aforesaid two sons. The appellant is the brother-in-law of the said landlords of the premises in dispute. It appears that on 26th April, 1980, the appellant moved an application before the rent Control and Eviction Officer, Rae Bareli that the premises in dispute had fallen vacant and the same should be declared to be vacant and also applied for allotment of the said premises in his favour.

4. The Rent Controller held that the shop was vacant. As mentioned hereinbefore, the proceedings started on an application which was moved by the appellant under Section 12 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter called the Act, for allotment of the premises on the ground floor on the ground that the premises had fallen vacant. The Inspector (Rent) made a local inspection and found that the respondent was residing on the first floor whereas on the ground floor certain medicines were found and the water and electric connections were in the name of the respondent. Evidence had been adduced before the Rent Controller. On behalf of the respondent it was contended before the Rent Controller that the premises was not vacant and that the respondent (appellant ?), who had applied, was none other than the landlords wifes own brother.

5. The High Court recorded that the building was taken on rent by M/s. Dhacca Swastic Aushadhalaya, Station Road, Rae Bareli (hereinafter called the Aushadhalaya), in the year 1946 or 1947. The Aushadhalaya was no longer in existence and the service of the proceedings was effected at its Varanasi address. It further appears from the records that the respondent had been doing the profession of Vaidya. On a conspectus of the evidence the High Court was of the view that the Aushadhalaya had been a tenant through the respondent at the inception. The business, however, was closed in the year 1976 and the respondent was carrying on his own business. The Rent Controller found that the tenant was not in occupation and the tenant, the Aushadhalaya, nor its proprietor. The present respondent was not the tenant but the premises was occupied by Hirday Ranjan Chakraborty, the respondent herein. The Rent Controller found that the premises was not occupied by the tenant but by other person other than the tenant. The High Court found to the contrary. The rent was being paid, but, as it appears, in the name of the tenant, and not in the name of the respondent in his own name. The rent was paid by the respondent in the name of the Dhacca Swastik Aushadhalaya, but the premises was being occupied by the person other than the tenant.

6. Section 12 of the Act provides for deemed vacancy, which is as follows:

" 12. Deemed vacancy of building in certain cases. - (1) A landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof if

(a) he has substantially removed his effects therefrom, or

(b) he has allowed it to be occupied by any person who is not a member of his family, or

(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.

(2) In t