High Court of Judicature at Allahabad
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Raj Kumar Gupta And Others v. Smt. Radha Devi - WRIT - A No. - 43348 of 2007  RD-AH 15332 (11 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Hon'ble S.U. Khan, J.
Petitioners filed a release application under Section 21 of U.P. Act No.13 of 1972 against tenant Badri Nath. Release application was allowed and thereafter Badri Nath tenant delivered possession ot the petitioners. This fact is stated in Paragraph-5 of the writ petition and learned counsel for the sole respondent admits this fact. Thereafter against the order passed by the Prescribed Authority, respondent Radha Devi claiming to be co-landlord of the property in dispute has filed appeal under Section-22 of the Act, which is pending before A.D.J., 4th Kanpur Nagar, in the form of Appeal No.25 of 2005. Prima facie, such appeal is not maintainable by rival claimant to ownership. An interim order passed in the said appeal has been challenged through this writ petition.
The court proposes to hear learned counsel for both parties on the maintainability of appeal. If the appeal is not at all maintainable, then writ of prohibition may be issued restraining the lower Appellate Court to proceed further with the appeal.
One of the arguments of learned counsel for the respondent is that partition suit is pending in between the petitioners and respondent. It is needless to add that whatever order is passed in the partition suit will have an overriding effect over the order of the Prescribed Authority allowing the release application filed by the petitioners. The fact that release application has been allowed does not mean that the exclusive landlord-ship of the applicants has been determined. Rival claim of ownership can be decided only in regular suit and not in proceedings under Section 21 of the Act.
Learned counsel for the respondent requires short period to study the point. Accordingly, put up on 13.09.2007 as fresh.
Until further orders, proceedings in Appeal No.25 of 2005 shall remain stayed.
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