JUDGEMENT RAKESH TIWARI, J. - Heard learned counsel for the parties and perused the record. 2. This petition has been filed challenging the validity and correctness of the judgment and order dated 27.11.1998, passed by the Rent Control and Eviction Officer, Ghaziabad. 3. The order impugned is challenged on the ground that the Rent Control and Eviction Officer, Ghaziabad has wrongly placed reliance on a sale-deed dated 10.4.1989 in which address of Vinod Kumar Saxena, respondent No.3 was shown as 581, Kirtanwali Gali, Bazaria, Ghaziabad for holding that he was not living separately from his father in the year 1985. He has stated that this finding of the Rent Control and Eviction Officer for not declaring the vacancy in the house in dispute is against the evidence on the record, is perverse, illegal and not sustainable. 4. Learned counsel for the petitioners has submitted that Vinod Kumar Saxena was a member of the family of Shiv Lal and inherited the accommodation as tenant but acquisition of a vacant house by him is not to be taken into consideration for the purpose of Section 12 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). He has placed reliance upon the case of Mohd. Azeem vs. District Judge, Aligarh and others, 1985 ARC 85. In the aforesaid case the Apex Court was considered the provisions of Section 12(3), 3(a)(1) and 3(g) of the Act as to when deemed vacancy would arises. The facts of that case were, the original tenant, his widow and three sons were living in the tenanted house upon whom the tenancy devolved upon death of the original tenant. One of the sons build their own house in the same city and shifted in it. But the other two sons, widow and daughter did not shift. The Court, in the circumstances held that the other two sons, widow and daughter will remain to be the tenant in the same house and shifting of one of the sons in the acquired accommodation will not attract the deeming provisions of Section 12(3) of the Act. 5. In the instant case release application was filed by the landlord. The Court, in the circumstances held that the other two sons, widow and daughter will remain to be the tenant in the same house and shifting of one of the sons in the acquired accommodation will not attract the deeming provisions of Section 12(3) of the Act. 5. In the instant case release application was filed by the landlord. Paragraphs 6 to 12 are relevant, which are reproduced for ready reference:- ^^6- ;g fd layXu uD'kk utjh esa f'koyky dh fdjk;snkjh okyk Hkkx v-c-l-n- ls nf'kZr fd;k x;k ftlessa nks dejs cus gq;s gSa 'ks"k Vhu 'kSM dk LVksj fdfpu o ,d dejk izkFkhZ ds dCts esa gS vkSj blds vfrfjDr izkFkhZ ds dCts esa izFke eafty ij ,d Vhu 'ksM dk dejk vkSj gSA bl izdkj izkFkhZ ds ikl lEiw.kZ edkfu;r esa nks dejs fdfpu o LVksj gSA 7- ;g fd izkFkhZ ds ifjokj esa izkFkhZ o mldh iRuh o nks iq= dze'k% nhid vk;q 27 o"kZ o iznhi vk;q 25 o"kZ gSA izkFkhZ ds nksuksa iq= fookg ;ksX; gS vkSj nhid viuk Lo;a dk jkstxkj djrk gS rFkk iznhi uks,Mk esa lfoZl djrk gS vkSj bl izdkj izkFkhZ ds nksukas iq=x.k f'k{kk lekIr djus ds i'pkr~ csjkstxkj gS vkSj mudh 'kh?kz gh 'kknh gksus okyh gSA nhid dk fj'rk yxHkx fuf'pr gks x;k gS vkSj 'kh?kz dh mudh 'kknh gksus okyh gS bl izdkj izkFkhZ ds ikl tks mlds dCts okyh lEifRr gS og mldh fjgk;'k gsrq i;kZIr ugha gS vkSj izkFkhZ dks vius iq=ksa dk fjgk;r gsrq foi{khx.k ds dCts okyh lEifRr ¼nks dejksa dh½ vR;Ur rhoz ,oa fo'oluh; ,oa lnHkkouk iw.kZ vko';drk gSA 8- ;g fd Jh f'koyky dk LoxZokl o"kZ 1986 esa gks pqdk gS rFkk foi{kh x.k 1 rFkk 3 mlds iq=x.k o foi{kh la0 4 mudh iRuh gSA 9- ;g fd foi{kh la0 3 esa edku ua0 284 pDdh okyh xyh ctfj;k xkft;kckn dz; dj fy;k gS vkSj foi{kh ua0 3 o 4 mlh edku esa jg jgs gSaA bl izdkj foi{kh ua0 3 viuk edku izkIr dj pqdk gSA 10- ;g fd foi{kh ua0 1 v'kksd dqekj us edku ua0 38 Mkd[kkus okyh ¼jger vyh½ ctfj;k xkft;kckn dks viuh iRuh Jh e/kq lDlsuk ds uke] ls dz; dj fy;k gS vkSj mDr edku ij 1-4-86 ls Jherh e/kq lDlsuk ds uke ls Hkou dj yx pqdk gSA rFkk mDr edku nks eaftyk cuk gqvk gS vkSj [kkyh gS vkSj ,l ij foi{kh ua0 1 v'kksd dqekj o mlds ifjokj dk rugk dCtk gS vFkkZr mlesa dksbZ fdjk;snkj ugha jgrk gSA 11- ;g fd foi{kh ua0 2 ujs'k dqekj us edku fn0 235 o 236 fLFkr xqj}kjs dz; dj fy;k gS rFkk foi{kh ua0 2 ujs'k dqekj jsyos esa mPp dq'ky fQVj xzssM esa lfoZl djrk gSA rFkk mls jsyos dk DokVZj vklkuh ls vkcafVr gks ldrk gSA rFkk og vius Hkkb;ksa ds lkFk Hkh muds edku esa vklkuh ls jg ldrk gSA 12- ;g fd mijksDr rF;ksa dks n`f"Vxr j[krs gq;s iw.kZ :i ls Jh f'koyky ds okjlku o ikfjokfjd lnL;ksa us edku dz; djds dCts izkIr dj fy;s gS vkSj dkuwuu mlds dCts okyh edkfu;r tks uD'kk utjh esa v c l n ls n'kkZ;h x;h gS dkuwuu fjDr gks pqdh gS ftldk dkj.k mDr v c l n lEifRr dks fjDr ?kksf"kr fd;k tkdj izkFkhZ ds gd esa fjyht fd;k tkuk vfr vko';d gSA vr% izkFkZuk gS fd Hkou la[;k 581 dhrZu okyh xyh ctfj;k xkft;kckn ftldk uD'kk utjh layXu gS ds nks dejs ftUgsa uD'kk utjh esa v c l n ls nf'kZr fd;k gS dks fjDr ?kksf"kr dj izkFkhZ ds gd esa fjyht fd;k tkosA^ 6. The aforesaid paragraphs have been replied in paragraph 4 to 11 of the objection filed by the petitioners, which are reproduced as under: ^^4- ;g fd fookfnr edku esa foi{khx.k 1 o 2 crkSj fdjk;snkj ,d dejs rFkk ,d cjkens ftldks dejk cuk fy;k rFkk ,d jlksbZ esa j[kh gSA nksuksa Hkkb;ksa ds ifjokj vyx vyx :e esa jgrs gSA bl izdkj foi{khx.k 1 o 2 ds vyx vyx nks ifjokj gSA 5- ;g fd izkFkhZ izdk'k pUn o mlds ifjokj ds dCts esa nks dejs ,d jlksbZ o LVksj Hkwfery ij gS rFkk ,d cM+k gky tks Vhu 'ksM ls cuk gS ftldk lkbZt 20 fQV 25 fQV gS izFke ry ij cuk gSA izFke ry ij ,d Luku?kj cuk gSA 6- ;g fd izkFkhZ ,d IykV {ks=Qy 209&7 oxZ xt iapoVh dkyksuh] xkft;kckn esa fnukad 8-1-93 dks [kjhn fy;k gS ftlesa ,d Hkou o cslesUV fuekZ.k dj fy;k vkSj izkFkhZ o mlds ifjokj dk jgus ds fy, miyC/k gSA mDr IykV dh lsy MhM dh iDdh udy crkSj lcwr QsfjLr lcwr ij nkf[ky dh x;h gSA 7- ;g fd foi{kh la0 1 v'kksd dqekj ds ikl dksbZ vkoklh; Hkou Mkd[kkus okyh xyh esa ughs gS] cfYd ,d NksVk lk Vhu 'ksM 7 x 7 lkbZt dk gS] tks vkoklh; ugha gS] cfYd v'kksd dqekj foi{kh dh iRuh mlesa MkbZ cukus dk O;olk; djrk gS vkSj mldh Nr ij ,d NksVk lk Vhu 'ksM cukdj og ?kk;y o ikyrw dcwrjksa o if{k;ksa dh ejge iVVh djds bZykt djrk gSA v'kksd dqekj ds ikl ek= ,d dejk fookfnr edku esa vkokl gsrq gSA blds vfrfjDr vU; dksbZ vkokl dh dksbZ O;oLFkk ugha gSA blds foijhr izkFkhZ dk leLr dFku feF;k gSA 8- ;g fd foi{kh ujs'k us tks Hkou la[;k 235 o 236 ctfj;k pDdh okyh xkft;kckn eas [kjhn fd;k mlesa mlds [kjhn djus ls iwoZ ls gh jktu flag rFkk xksiky nkl fdjk;snkj pys vkrs gS tks dHkh Hkh [kkyh fLFkfr esa ugha jgk gSA bl Hkou esa tks fdjk;snkj gS og iwoZ Lokeh Jherh d`ik nsoh ds le; ls fdjk;snkj pys vkrs gSA 9- ;g fd foi{kh ua0 3 dk dHkh dksbZ lEcU/k fookfnr edku dh fdjk;snkjh ls ugha jgk] blfy;s mldks i{kdkj xyr :i ls vuko';d cuk;k x;k gSA 10- ;g fd izkFkhZ ds ikl vkokl ds fy;s nks HkouA rhu dejksa dk Hkou ua0 581 dhrZu okyh xyh 2&209&78 oxZ xt Hkwfe esa dkyksuh iapoVh xkft;kckn miyC/k gSA iapoVh dkyksuh esa tks Hkou gS o izkFkhZ izdk'k pUn dh iRuh Jherh xhrk nsoh ds uke gSA bl izdkj izkFkhZ dh vko';drk csuk QkbZM ugha gSA 11- ;g fd foi{kh 1 o 2 tks fookfnr Hkou ds ,d dejs rFkk cjkens dks cuk;s x;s dejs esa vyx vyx ;kfu ,d ,d dejs esa viuk iRuh o rhu& rhu cPpksa ds lkFk crkSj fdjk;snkj jgrs gSa ds ikl dksbZ vFkok vkoklh; LFkku [kkyh fLFkfr esa miyC/k ughs gSA^ 7. Counsel for the respondents has contended that it is apparent from paragraphs 10, 11 and 12 that every members of the family of late Shiv Lal, who were tenants of the house are clearly independent. According to him, Ashok Kumar had acquired house No.D-38, Dak Khane Wali Gali in the name of his wife and similarly Naresh Kumar has also purchased House Nos.235 and 236 situated at Gurudware Wali Gali, Bazaria on 13.4.1992. It appears that there is no dispute so far as Ashok Kumar is concerned, as he has already left the building in dispute and has shifted to his own house. The only dispute that remains is in respect of wife of Naresh Kumar, petitioner no.2, who has been substituted in his place. 8. The contention of the learned counsel for the petitioners is that wife of petitioner no.2 had sold the house purchased by Naresh Kumar during the pendency of the litigation and in view of Section 12(3) of the Act vacancy was liable to be declared. 9. Learned counsel for the petitioners has relied upon paragraph 8 of his written statement and he submits that it is not disputed that each of the sons of late Shiv Lal, who was tenant in the house in dispute has purchased his separate house. However, the house purchased by Naresh Kumar, petitioner No.2, who has now been substituted by his widow and minor children was not in a vacant condition as in that house one Sri Rajan Singh and Gopal Das were tenants. Due to untimely death of Naresh Kumar who was suffering for lever sclerosis had to sell off the house to meet the expenses and the loans which she has taken for the purpose of medical treatment of her husband. It is emphatically stated that the house which was purchased by Naresh Kumar was not acquired by him in vacant condition and the possession was only symbolic, hence the provisions of Section 12(3) of the Act would not be attracted in the facts and circumstances of the case. 10. Considering the facts and circumstances, it is admitted to the parties that Shiv Lal was the original tenant in the house in dispute which consists of two small rooms and tin shed and in that he was living with his three sons, namely, Ashok Kumar, Naresh Kumar and Vinod Kumar. All these sons had acquired their own house. 10. Considering the facts and circumstances, it is admitted to the parties that Shiv Lal was the original tenant in the house in dispute which consists of two small rooms and tin shed and in that he was living with his three sons, namely, Ashok Kumar, Naresh Kumar and Vinod Kumar. All these sons had acquired their own house. Vinod Kumar and Ashok Kumar, who had acquired their houses in vacant position have shifted in them but, the house purchased by Naresh Kumar was not in a vacant position as is apparent from paragraph 8 of the written submission. A perusal of the release application filed by the petitioners would also established that he has no where asserted that Naresh Kumar had purchased the house in a vacant possession. 11. From paragraph 8 of the written statement filed by the petitioner, it is clear that the house purchased by Naresh Kumar was not in a vacant position and there was two tenants, namely, Rajan Singh and Gopal Das, living in it, from before the purchase of the house by the petitioner. Therefore, in my considered opinion, the provisions of Section 12(3) of the Act would not apply in the facts and circumstances of the case. 12. The cases cited by the petitioners as well as the respondents are not applicable to the facts and circumstances of this case for the reasons that in the case of Mohd. Azim (supra) the house purchased was in a vacant condition by one of the tenants, whereas this is not the position in the present case. However, the ratio that each of the joint tenant has individual right is to be taken into consideration as has been held in the aforesaid case. 13. In view of the reasons stated above, the writ petition is allowed. The order dated 27.11.1998, passed by the Rent Control & Eviction Officer, Ghaziabad, is quashed. 14. No order as to cost. Petition Allowed