Hon’ble Devendra Pratap Singh, J.—Heard counsel for the parties.

2. Anwar Ahmad, the respondent-landlord preferred a release application under Section 21 (1) (a) and (b) of U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) claiming that he had purchased the house No. 665, Hatia Bahadurganj, Allahabad vide registered sale deed dated 2.12.1989 executed by its erstwhile owner Dosh Mohammad where late Gaus Mohammad was the original tenant but inducted one Shafi Ullah, the petitioner, as subtenant. It is alleged that the premises were purchased for his own use and occupation as he had a large family and had also to settle his son in business and further, the premises was in dilapidated condition which needed demolition and reconstruction but despite notice to vacate, the petitioner did not vacate it forcing him to file the application impleading Smt. Hafiza Khatoon wife of the original tenant. Smt. Hafiza Khatoon did not file any written statement but the petitioner preferred his objection, inter-alia on the ground that earlier the erstwhile owner had preferred a release application which had been dismissed and that he had been occupying the premises as a tenant since more than 45 years where he was carrying out his business of making Almirah etc. and neither Gaus Mohammad nor his wife had any connection with the said premises. It was further stated that the respondent-landlord had other premises available to him. Further, by amendment it was stated that the erstwhile owner had made a oral gift in his favour on 4.4.1989 and therefore the sale deed in favour of the Anwar Ahmad was void.

3. After the parties had led their evidence, the release application was partly allowed for a portion of the premises vide order dated 31.7.2006.

4. Aggrieved, both the parties preferred their respective appeals and both the appeals have been dismissed vide order dated 7.2.2009.

5. Writ petition No. 12919 of 2009 has been preferred by Shafi Ullah the alleged tenant against that portion of the impugned order by which release has been allowed while writ petition No. 14821 of 2009 has been preferred by Anwar Ahmad, landlord, against that portion by which the release has been refused for a portion of the disputed premises.

6. Learned counsel for Shafi Ullah in writ petition No. 12919 of 2009 has firstly urged that there was no evidence to show that Hafiza Khatoon was ever resided in the disputed premises as a tenant and therefore the application for eviction under Section 21 (1) (a) and (b) of the Act against the petitioner treating him as a subtenant was not maintainable and at best the respondents could have preferred an application under Section 25 of the Act. In support thereof he has relied upon a decision of this Court rendered in the case of Smt. Suman Lata v. Prescribed Authority and others, 1985 (2) ARC 454.

7. A perusal of the application would show that it was alleged that Gaus Mohammad was the original tenant and on his death, his wife Smt. Hafiza Khatoon stepped into his shoes and it was also alleged that Gaus Mohammad in his life time had inducted the petitioner as a subtenant and after his death, as he did not have any children, his wife Hafiza Khatoon started residing in her parental house. Thus, assuming she did not stay there, would be immaterial until it is proved that Gaus Mohammad was not the tenant. The petitioner had set up a case that in fact, he was in occupation of the disputed premises as a tenant and not as a subtenant for the last about 40-45 years. Therefore, even according to his admission, by operation of Section 14 of the Act, he would become a statutory tenant under the Act as his possession would relate back to even before 1972.. Though, this argument was never raised in any of the Courts below, once the petitioner admits himself to be the tenant, he cannot turn around and say that the application under Section 21 (1) (a) of the Act is not maintainable. This argument cannot be accepted.

8. So far