Hon’ble Sunil Ambwani, J.—Heard Shri K.M. Garg, learned counsel for the petitioner-tenant. Shri Subodh Kumar appears for respondent-landlord.

2. The respondent-landlord has filed a caveat. Both the counsels were heard at the admission stage. Shri Subodh Kumar made a statement that he does not want to file counter affidavit. With the consent of parties, the matter was heard and is finally decided.

3. The petitioners are tenant of House No. 83/72A, Tiwari Gali, Chhatta Bazar, Mathura. Shri Dwarika Prasad Chaturvedi, the father of the respondent-landlord filed an application for release of the premises for bonafide need for use and occupation under Section 21 (1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Act), being Suit No. 26 of 1979, Dwarika Prasad v. Shyam Bihari Lal. The Prescribed Authority dismissed the suit on 7.12.1979. Shri Dwarika Prasad filed a Rent Control Appeal No. 42 of 1979, which was dismissed on 16.9.1981. He filed Writ Petition No. 15416 of 1981, which was dismissed on 29.10.1999.

4. The petitioner claiming to be son and coparcener in the Hindu coparcenary from birth, of which Shri Dwarika Prasad Chaturvedi is Karta filed a fresh release application on 10.2.2000 on the 41st day after the dismissal of the writ petition on the ground that he is coparcener in the Hindu coparcenary, which is the owner of the disputed shop. A partition was affected in the Joint Hindu family, recorded by registered partition deed dated 9.7.1959 in which the disputed shop and the right to practice ‘jijmani’ fell in the share of Dwarika Prasad and his mother Smt. Bitto Devi on one hand, and Shri Vitthal son of Shri Gopi Nath, the brother of Shri Dwarika Prasad on the other. On the date of this partition dated 9th July, 1959 the applicant Shri Santosh Chaturvedi was not born nor Shri Shyam Bihari was tenant in the shop. The partitioned joint Hindu family continued to hold shop in the Hindu coparcenary between his father and his grand mother. On his birth in the family he acquired interest in the coparcenary. A fresh partition took place between Dwarika Prasad; his son and his mother on 15.11.1999 (on the 16th day of the dismissal of the writ petition filed by Shri Dwarika Prasad) and in this family settlement recorded on 2.2.2000, as proof of oral partition dated 19.11.1999 the shop in dispute fell to the share of Shri Santosh Chaturvedi.

5. In the release application Shri Santosh Chaturvedi, claiming to be the owner and landlord stated that his wife did not keep good terms with his mother and thus he is living separately from his father and mother. He did not have any shop to start the business and served with various cloth merchants. He was engaged in the business of purchasing cloth from whole sellers and selling in commission to the retailers by moving from shop to shop. His income from the business was not sufficient to meet the needs of his family. A son and a daughter were born on 12.3.2002 and 3.4.2005 respectively increasing his family. The son is to be admitted in school and that his income of Rs. 1500/- per month was not sufficient to take care of the education and needs of his children. In between he had also served as salesman on a cloth shop for Rs. 2500/- per month upto June 2004 and again served as salesman from 1.11.2004 for Rs. 2500/- per month. At present he is serving as salesman in a cloth shop at Rs. 3000/- per month. He does not have any income from ‘jijmani’ (right to practice priesthood), and which has fallen to the share of his father in the partition.

6. The petitioner-tenant denied the plaint allegation and stated that as soon as the father lost the proceedings and failed to get the shop released in his favour, his son set up a false plea of an oral partition in which the shop fell to his share as coparcener. The petitioner-tenant stated that with the partition of the year 1959 set up by the landlord between his father, uncle and grand mother, his father