ORDER A.N. Verma, J. - This petition by a tenant is directed against concurrent orders passed by the courts below releasing premises No. 91 Sohbatia Bagh, Jawahar Lai Nehru Road, Allahabad in favour of the landlord, who are arrayed in this petition as respondents Nos. 3 to 5 and 7, under Section 21 of U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (U. P. Act No. XIII of 1972). 2. These are the facts. One Sri B. D. Mukherjee, the father of respondents Nos. 3 to 5 and 7 was admittedly the owner and landlord of the aforesaid premises, of which the petitioner was a tenant. Sri B. D. Mukerjee filed an application on 26th of September 1976 under Section 21 (1) of the aforesaid Act against the petitioner for an order of eviction on the ground that he was a retired person, old and infirm, and compelled to reside in a rented house Number 38-A Thornhill Road, Allahabad, carrying a monthly rental of Rs. 50CF-per month which he could ill afford to pay. His family consisted of himself, two sons, wife, daughter-in-law, a daughter, a grand-son and a grand daughter. The premises No. 38-A Thornhill Road were, besides being an expensive proposition for the landlord (Sri B. D. Mukerjee), inadequate for the size of the landlords family and its requirement. The landlord bona fide required the accommodation in dispute for the residence of himself and the members of his family. The tenant on the other hand owned and possessed a house in Tula Ram Bagh Allahabad in which he could easily shift. Furthermore, as between the landlord and the tenant, it is the former who would suffer greater hardship. 3. The application was contested by the petitioner, who alleged that the application of the landlord was incompetent in law, inasmuch as the petitioner had ceased to be a tenant of Sri B. D. Mukerjee with effect from 27-8-1968, the date on which a written agreement was entered into between Sri B, D. Mukerjee and the petitioner for the sale. of the house in question in favour of the tenant for a total consideration of Rs. 40,000/-out of which a sum of Rs. 10,000/- was paid to Sri B. D. Mukerjee on 27-8-1968, itself, while the remaining Rs. 30,000/-was yet to be paid at the time of the execution of the sale deed. of the house in question in favour of the tenant for a total consideration of Rs. 40,000/-out of which a sum of Rs. 10,000/- was paid to Sri B. D. Mukerjee on 27-8-1968, itself, while the remaining Rs. 30,000/-was yet to be paid at the time of the execution of the sale deed. It was alleged that in pursuance of this agreement, possession was delivered to the petitioner and in pursuance of the said agreement, the tenant had invested substantial sum of money towards improvement and additions in the building. It was asserted that a civil suit had been filed for the specific performance of the contract of sale which had been decreed ex parte against Sri B. D. Mukerjee. As regards the merit of the claim of Sri B. D. Mukerjee, it was asserted that premises No. 38-A Thornhill Road, Allahabad, were still in occupation of Sri B. D. Mukerjee and they were sufficient for his needs. It was denied that Sri B. D. Mukerjee bona fide required the accommodation. It was asserted that the tenant would suffer irreparable loss if he was evicted from the premises in question, as he was running a hotel in the premises under the name and style of "Messrs. Shyam Hotel & Restaurants". 4. The application of the landlord was allowed by the prescribed Authority ex parte and subsequently upon the ex parte order having been set aside and after contest, again on 14-3-1978. 5. Aggrieved by the aforesaid decision, the tenant filed an appeal which has been dismissed by the learned VII Additional District Judge. The writ petition is directed against the aforesaid two orders passed by the Prescribed Authority as well as the learned District Judge. 6. It may be mentioned that the landlord and his family were evicted from the premises No. 38-A Thornhill Road, which they were occupying as tenant and in pursuance of the order passed by the Prescribed Authority in the present case, they have been allowed to occupy the accommodation and the family of Sri B. D. Mukerjee is admittedly residing in the accommodation in question since then. 7. Learned Counsel for the petitioner mainly concentrated his arguments on the finding of the courts below that the relationship of landlord and tenant did exist between the late Sri B. D. Mukerjee and the petitioner. 7. Learned Counsel for the petitioner mainly concentrated his arguments on the finding of the courts below that the relationship of landlord and tenant did exist between the late Sri B. D. Mukerjee and the petitioner. On this question, the submissions of the learned counsel for the petitioner were two-fold. These were: (1) The ex parte decree for specific performance of the contract for sale having been passed prior to the orders passed by the Prescribed Authority and the learned District Judge, and there was pending no application in the eye of lav; for the setting aside of the same, it must follow that there was a valid and enforceable agreement for sale of the property in favour of the petitioner and the courts below have fallen into a manifest error of law in not proceeding on the assumption that the relationship of landlord and tenant did, as a result of that decree, exist between the parties. (2) All the ingredients of Section 53-A of the Transfer of Property Act were present in the case and the Courts below committed a patent error of law in recording a finding to the contrary. 8. Having heard learned counsel fur the parties at some length, I find no substance in either of these two points. 9. As regards the first point the admitted position is that a suit for specific performance of the contract instituted by the the petitioner against Sri B. D. Mukerjee was ex parte on 12-7-1978, and on the very next day i.e. on 13-7-1978, an application was moved on behalf of Sri B. D. Mukerjee for the setting aside of the ex. parte decree on the ground that on account of the fact that he was very seriously ill, he could not appear in Court on that date (it may be mentioned that Sri B. D. Mukerjee died of that illness on 28-7-1978). Along with the application for setting aside of the ex parte decree, an application was also moved before the court for stay of the operation of the ex parte decree dated 12-7-1978 and the Court was pleased to stay the operation of the said decree. Subsequently, upon the death of Sri B. D. Mukerjee, his heirs, the present contesting respondents, moved an application for substitution for setting aside of the ex parte decree. The said application for substitution is pending in the court concerned. Subsequently, upon the death of Sri B. D. Mukerjee, his heirs, the present contesting respondents, moved an application for substitution for setting aside of the ex parte decree. The said application for substitution is pending in the court concerned. On these facts, the learned District Judge has observed that the finality of the decree for specific performance of the contract has been put into jeopardy and suspension. 10. The view taken by the learned District Judge seems to be correct. The operation of the decree having been expressly ordered to be stayed by the court passing it, and further an application f0r setting aside of the ex parte decree having been duly filed, and is pending adjudication, the learned District Judge rightly held that the issue relating to the existence or validity of the agreement for sale must be held to be sub judice. Sri V, P. Misra, learned counsel for the petitioner, however, urged that Sri B. D. Mukerjee having died after making the aforesaid application under Order IX, Rule 13 of the Code of Civil Procedure and the substitution application moved by his heirs not having been allowed or disposed of until the disposal of the application under Section 21 of the Act, it must be presumed that there was, in the eye of law, no application for setting aside of the ex parte decree. Sri V.P. Misra was, however, unable to substantiate this argument by any authority or statutory provision, or even principle. 11. In the absence of any binding authority, I am not persuaded that the application under Order IX, Rule 13 of the Code of Civil Procedure filed by Sri B. D. Mukerjee must be treated as non est, just because Sri B. D. Mukerjee had died after making that application, even though admittedly an application for substitution filed within the period of limitation was still pending before the court concerned. 12. The acceptance of the learned counsels argument would lead to serious and highly inequitable results. The death of a litigant where his heirs have taken appropriate steps for substitution within the time allowed by law, cannot and ought not to invest the adversary with an indefeasible right or confer upon him a position of vantage. It would be so eminently unjust and unfair. The death of a litigant where his heirs have taken appropriate steps for substitution within the time allowed by law, cannot and ought not to invest the adversary with an indefeasible right or confer upon him a position of vantage. It would be so eminently unjust and unfair. To my mind, the legal effect of the pendency of the application for substitution by the heirs of Sri B. D. Mukerjee would be, that in law an application for setting aside of the ex parte decree would be deemed to be pending. 13. Sri V.P. Misra, however, contended that the fact that the court passing the ex parte decree had subsequently stayed its operation at the instance of Sri B.D. Mukerjee would only have the legal effect of staying the execution of that decree, but it would not affect the legal existence of the decree. In support, learned counsel placed reliance on a decision of this court in the case of Ved Singh v. Asstt. Sub-Divisional Officer ( AIR 1965 All 370 ): (1964 All LJ 1073). The case is clearly distinguishable as will be evident from the facts mentioned below. 14. A writ petition was filed in this court against an order of removal of the petitioner, who was a Pradhan of a Gaon Sabha. In the writ petition, an interim order was passed staying the operation of the order of removal. Subsequently, the writ petition was dismissed and with it the interim order of stay stood vacated. The question was whether the interim order of stay had the effect of wiping out the order of removal altogether during the period of stay. This court answered the question in the negative. It is obvious, that if ultimately the application for setting aside of the ex parte decree is rejected, the fact that the operation of that decree had been stayed during the pendency of that case cannot detract from the validity and legal existence of that decree. In the present case, the order of stay is still operating. The decision cited by the learned counsel for the petitioner is, therefore, of no assistance in resolving the controversy. 15. Furthermore, the learned District Judge has not rested his decision as to the finality of the ex parte decree solely on the consideration that its operation had been stayed by the court passing it. The decision cited by the learned counsel for the petitioner is, therefore, of no assistance in resolving the controversy. 15. Furthermore, the learned District Judge has not rested his decision as to the finality of the ex parte decree solely on the consideration that its operation had been stayed by the court passing it. He has further relied on the fact that an application for setting aside of that decree is still pending. 16. The result of the aforesaid discussion is that the courts below rightly held that, the matter relating to the existence or validity of the contract 'for sale was still sub judice. The view taken by the courts below cannot be said to be wrong or unjustified. 17. Even if it be assumed for a moment that there was in operation a binding decree for specific performance of the contract, such a decree by itself would not have the effect of making the petitioner the owner of the premises in question. The decree for specific performance of the contract only conferred a right on the petitioner to have a sale deed executed in his favour. Admittedly no sale deed has been executed in favour of the petitioner in pursuance of the decree as yet. The petition would, therefore, stand only if he succeeds in his plea based on Section 53-A of the Transfer of Property Act. This takes me to the second of the questions whether relationship of landlord and tenant existed between the parties. 18. The courts below have found against the petitioner in regard to the plea raised under Section 53-A of Transfer of Property Act particularly on two grounds, namely :- (1) There were circumstances which raised a serious doubt as to the genuineness of the agreement set up by the petitioner. According to the courts below, the document appears to be on the face of it a product of forgery. However, On account of the pendency of the suit filed by the petitioner for specific performance of the contract, the courts below have hesitated in venturing a concluded finding to that effect; (2) An important ingredient for application of Section 53-A of the Transfer of Property Act, was missing in the present case. However, On account of the pendency of the suit filed by the petitioner for specific performance of the contract, the courts below have hesitated in venturing a concluded finding to that effect; (2) An important ingredient for application of Section 53-A of the Transfer of Property Act, was missing in the present case. The learned District Judge has found that after execution of the alleged agreement, the petitioner did acts which not only did not amount to furtherance of the contract, but confirmed that the petitioner continued to regard and declare himself as the tenant of the premises until he instituted the suit in the year 1974 for specific performance of the contract. 19. In my view, the learned District Judge has rightly refused to apply Section 53-A of the Transfer of Property Act to the facts of the present case. The finding of the courts below can be sustained on either of the two grounds mentioned above. 20. Even if the question whether the petitioner can be deprived of the benefit of Section 53-A of the Transfer of Property Act on the comments made by the learned District Judge on the genuineness or validity of the agreement for sale set up by the petitioner, is open to some debate, the finding of the learned District Judge that after the execution of the alleged agreement, the petitioner was continuing to declare himself as the tenant of the accommodation in dispute and, therefore, dis-entitled himself to the benefit of Section 53-A of the Transfer of Property Act, is entirely unexceptionable and completely concludes the issue against him. 21. The learned District Judge has placed reliance upon a declaration form submitted by the petitioner on 26-9-1969 before the Nagar Mahapalika Allahabad in connection with General Assessment proceedings launched in the City. The learned District Judge summoned the original declaration form from the Nagar Mahapalika in regard to the accommodation in dispute and found that the declaration form contained an entry showing the petitioner as the tenant of the accommodation in dispute and that the same had been signed by the petitioner. This declaration leaves no manner of doubt that far from asserting himself as the owner of the property or doing acts in furtherance of the alleged agreement for sale, the petitioner was taking up a stand which was wholly irreconcilable with his status as the owner of the accommodation in dispute. This declaration leaves no manner of doubt that far from asserting himself as the owner of the property or doing acts in furtherance of the alleged agreement for sale, the petitioner was taking up a stand which was wholly irreconcilable with his status as the owner of the accommodation in dispute. It is trite saying that for application of Section 53-A of the Transfer of Property Act, not only the existence of a valid agreement for transfer is necessary but it must further be shown that the transferee has in part performance of the contract continued in possession and has done some act in furtherance of the contract. The learned District Judge rightly held that the petitioner has done acts which are completely destructive of his claim that he was in occupation of the property in furtherance of the contract. 22. Apart from the aforesaid declaration, the petitioner had also done some other acts which indicated that he was not asserting any rights under the alleged agreement for sale. On 3-1-1974, in connection with some unauthorised constructions which were said to have been made by the petitioner in the house in dispute, the Prescribed Authority, Regulated Area, Allahabad, passed an order, a true copy of which has been annexed to the counter-affidavit as Annexure "C.A.5". In this order, it has been mentioned that the petitioner appeared before the Authority and asserted that the house in dispute was an old house in which he was a tenant. This act of the petitioner done as late as 31-1-1974 gives a death blow to the petitioners claim under Section 53-A of the Transfer of Property Act. 23. The aforesaid facts clearly indicate that till long after the execution of the alleged agreement for the transfer of the property, the petitioner had been declaring that he was a tenant of the accommodation in dispute. A vital ingredient of Section 53-A of the Act was, therefore, missing in the present case. The decision of the courts below that the petitioner is not entitled to claim rights under Section 53-A of the Act is thus perfectly correct and calls for no interference by this court. 24. A vital ingredient of Section 53-A of the Act was, therefore, missing in the present case. The decision of the courts below that the petitioner is not entitled to claim rights under Section 53-A of the Act is thus perfectly correct and calls for no interference by this court. 24. Learned counsel for the petitioner in the end also made a feeble attempt to assail the findings of the courts below on the question of bona fide requirements of the landlord and comparative hardship likely to be caused to the two parties. He was, however, unable to point out any error of law. I have perused the findings of the courts below on the two issues, namely bona fide requirements of the landlords and comparative hardship, and I find that the conclusions concurrently reached by both the courts below are fully justified. The learned District Judge has addressed himself to the relevant factors in determining the question whether the landlord had or had not bona fide required the accommodation in dispute, and has rightly observed that the present is a case which is preeminently fit for granting the release of the premises in favour of the landlord. The finding of the courts below on the question of comparative hardship is also equally just and proper. The family of the landlords were residing in a tenanted accommodation carrying a rental of Rs. 500/- per month. Apart from the hardship which the landlords were suffering in the tenanted accommodation on account of inadequacy of the same as well as the exorbitant rent which they could ill-afford to pay, now the undisputed fact is that the landlord has been actually evicted from the said accommodation by his landlord. Under these circumstances, the courts below have rightly observed that as between the landlord and the tenant, it is the former who would suffer greater hardship. 25. In view of what has been stated above, I do not consider it necessary to consider a plea which was raised by the learned counsel for the contesting respondents with great vehemence, namely, that the conduct of the petitioner was such as to disentitle him to any discretionary relief from this court under Article 226 of the Constitution of India. 26. 26. Learned counsel for the respondents pointed out various acts committed by the petitioner which according to the submission of the respondents counsel completely dis-entitled the petitioner to any assistance by this Court. As mentioned above, as the petition is failing on merits, I do not consider it necessary to go into this aspect of the matter. 27. For the reasons stated above, this petition fails and is dismissed with costs.