The Courts have the authority to decide the question of title incidentally based on the evidence on record, and the burden of proof for an oral Will lies on the claimant.

RAKESH TIWARI, J.--Heard learned Counsel for the parties and perused the record.

2. The property in dispute was admittedly owned by one Qamarul Islam who expired on 18.5.1996.

3. On 9.8.2004 after eight years fron the death of Qlmarul Islam the respondent Zahurul Islam filed an application under section 21 (1) (a) of U.P. Act No. 13 of 1972 against the petitioner claiming that he waq the owner and landlord of the building in question and that the petitioner has been occupying the ground floor portion of the tenanted accommodation @ Rs. 700/- per month which has not been paid to him since the death of late Qamarul Islam.

4. The application was contested by the tenant on the ground that wife of the tenant Smt. Bilqis Begum is owner and landlord of the premises in dispute by virtue of an oral Will by late Qamarul Islam existed no relationship of landlord and tenant between the parties.

5. The contention of learned Counsel for the petitioner is that there is no whisper in the application under section 21 (1) (a) of U.P. Act No. 13 of 1972 as to how respondent Zahurul Islam became the owner after the death of Qamarul Islam and how he became the landlord of the petitioner.

6. It was after the filing of the written statement by the petitioner that respondent Zahurul Islam came out with a case in his replication that he became owner by virtue of succession being the real brother of late Qamarul Islam and on the basis of some letter said to have been written by late Qamarul Islam to the Electricity department wherein he had mentioned the petitioner as his tenant. In order to appreciate as to the controversy emerging from the pleadings of the parties, the petitioner referred to paragraph Nos. 1 and 2 of the application under section 21 (1) (a) of U.P. Act No. 13 of 1972, which are quoted hereunder for ready reference:

"1. That the applicant is owner and landlord of building No. 12/5-C/1, Atala (Shaukat Ali Marg), Allahabad more fully detailed at the foot of this application.

2. That the opposite party has been occupying a ground floor portion consisting of 5 rooms, 1 Do-Chatti, 1 kitchen and 2 bathrooms, 1 store room, 1 Dalan along with Court yard and portico on both sides along with lawn infront of the tenanted accommodation at the rate of Rs. 700/- per month."

7. The petitioner filed written statement on 16.11.2004 and questioned the status of respondent Zahurul Islam as owner and landlord of the property in dispute. He also pleaded that he was in occupation and possession of the property since 1975 i.e., during the life time by Qamarul Islam. It was further stated that no tenancy was ever created by late Qamarul Islam either by an oral contract or a contract in writing and hence there was no contractual relationship between the petitioner and the respondent. It was stated that the deceased owner of the property in dispute late Qamarul Islam had inducted the petitioner and his wife Bilqis Begum as a close relation with an intention to look after him and there was no relationship of the petitioner with him of landlord and tenant. It was also pleaded that the petitioner never attorned the respondent as landlord and hence, there was no question of any tenancy between them. On these facts, it was also pleaded that the Rent Control Authorities had no power or jurisdiction to decide the question of title and ownership. In this regard, paragraph Nos. 1, 2 and 24 to 28 of the written statement of the opposite party are quoted below.

"1. That the paragraph 1 of the petition is absolutely wrong and emphatically denied. The petitioner is neither the landlord nor the owner of the premises in question. In fact Smt. Bilqis Begum the wife of the opposite party is the owner landlord of the premises No. 1 12/5/-C/1 Atala (Shaukat Ali Marg), Allahabad and the petitioner has got no concern with the same at all.

2. That in reply to paragraph 2 of the petitioner it is admitted that the entire ground floor portion of the premises in question is in occupation