JUDGMENT :

Sunita Agarwal, J.

1. Heard Ms. Shreya Gupta, learned counsel for the petitioners and Sri Rahul Sahai, learned counsel for the respondent.

2. The present petition is directed against the judgment and order dated 13.7.2016 passed by the Prescribed Authority/Additional Civil Judge (Senior Division), Budaun in Rent Case No. 5 of 2009 and also the judgment and order dated 31.10.2018 passed by the Additional District and Sessions Judge, Court No. 6, Budaun in Rent Appeal No. 19 of 2016.

3. By the orders impugned, the release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (in short as ‘the Act 1972’) filed by the respondent-landlord had been allowed directing the petitioners to handover vacant possession of the premises in dispute to the release applicant/landlord.

4. At the outset, learned counsel for the petitioners had urged that the release application was not maintainable, inasmuch as, it was filed in contravention of the First proviso to Section 21(1)(a) of the Act, 1972.

5. It is contended that the release applicant/landlord had purchased the disputed premises from the original landlord vide sale deed dated 30.5.2005 alongwith the petitioners as sitting tenant. The release application was filed by the purchaser landlord without serving a six months notice as required under the First proviso to Section 21(1)(a) of the Act, 1972. In so far as the assertion in the release application that a notice dated 3.9.2008 purportedly under the First proviso to Section 21(1)(a) of the Act, 1972 was served upon the petitioners by registered post and certificate of posting, the contention is that factum of service of notice had been specifically denied in the written statement filed by the petitioners. The alternative plea taken by the tenant, that the alleged notice was illegal and would not determine the tenancy, would not absolve the burden laid on the landlord to prove the service of notice. The Prescribed Authority had allowed the release application vide judgment and order dated 13.7.2016 ignoring the objection taken by the petitioners with regard to entertainability of the release application. In appeal, the appellate court had dealt with the issue erroneously by misconstruction of the First proviso to Section 21(1) (a) of the Act, 1972 and wrongly held that notice as required thereunder was not needed, inasmuch as, the previous landlord had filed a release application setting up his need of the disputed property. Further, the notice sent by the landlord through U.P.C. has wrongly been held valid, without any evidence being filed by him to prove its service.

6. The submission is that the requirement of giving six months notice to a sitting tenant as per First proviso to Section 21(1)(a) of the Act, 1972, is mandatory. It was incumbent on the Prescribed Authority to frame an issue on this aspect of the matter, once the tenant had denied the service of notice in the written statement and also challenged the legality and validity thereof.

7. It is contended that in absence of a valid notice, the release application filed by subsequent landlord could not have been entertained and was liable to be thrown outrightly. The Prescribed Authority had, thus, erred in proceeding on merits of the release application. The appellate court though dealt with the issue but in a wrong perspective.

8. It is next argued that the denial on the part of the tenant of the service of notice was clear and categorical. The legality of notice has been challenged as an alternative plea. It is permitted to defendant/opposite party to take alternative inconsistent pleadings in the written statement. The assertion in the written statement of the petitioners that no notice was served on him and further that the notice was illegal and his tenancy would not be determined from such notice, cannot be taken to be an admission on the part of the petitioners regarding service of notice. In view of the denial, the burden was on the landlord to file evidence to