JUDGMENT & ORDER : SURYA PRAKASH KESARWANI, J. 1. Heard Sri Prateek Sinha, learned counsel for the petitioner and Sri Vinod Sinha, learned counsel who has put in appearance today on behalf of respondent No.2. 2. Briefly stated facts of the present case are that there is a House No.15/51, Civil Lines, Kanpur Nagar. The petitioner is claiming one third share in the said house by means of a registered sale deed dated 29.01.1992. Respondent No.2 also claims to be co-owner of 1/3rd portion of the said house by way of registered sale deed dated 14.06.1999 obtained from Ms. Maya Shah. Her husband Mehdi Hasan is claiming to be co-owner of one third portion on the strength of another registered sale deed. Thus, the petitioner, the respondent No.2 and her husband, namely Sri Mehdi Hasan, all are claiming to be co-owners of one third shares each in the aforesaid House No.15/51, Civil Lines, Kanpur. 3. Initially, some accommodation on the first floor of the house in question was allotted by the Rent Control and Eviction Officer, Kanpur Nagar to one Smt. Asha Gupta. An application dated 06.02.1992 was filed jointly for allotment on the allegation that tenant Smt. Asha Gupta is likely to vacate the premises. The allotment was made by order of the City Magistrate/Rent Control and Eviction Officer, Kanpur Nagar dated 08.08.1994 jointly in favour of one Sri Javed Ilahi and Sri Zahirul Hasan. Subsequently, the aforesaid Mehdi Hasan filed a Case No.90 of 1998 under Section 16(1)(b) of the U.P. Act No.13 of 1972 before the Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar for release of the portion in occupation of tenant-Sri Javed Ilahi pursuant to the vacancy declared by order dated 14.12.1998. The aforesaid Javed Ilahi surrendered the possession in favour of the Mehdi Hasan. Consequently, the aforesaid Case No.90 of 1998 was allowed by order dated 10.12.1998 releasing the portion in occupation of the aforesaid tenant Javed Ilahi in favour of the aforesaid co-owner Mehdi Hasan. 4. It appears that a Writ Petition No.4437 of 1995 was also filed challenging the joint allotment order dated 08.08.1994 in favour of Zahirul Hasan and Javed Ilahi passed under Section 16(1)(a) of U.P. Act No.13 of 1972 and the order dated 18.01.1995 passed by the Revisional Court. 4. It appears that a Writ Petition No.4437 of 1995 was also filed challenging the joint allotment order dated 08.08.1994 in favour of Zahirul Hasan and Javed Ilahi passed under Section 16(1)(a) of U.P. Act No.13 of 1972 and the order dated 18.01.1995 passed by the Revisional Court. This Court vide order dated 27.04.2006 in Writ Petition No.4437 of 1995 (Mohammad Shafiq & another vs. III Additional District Judge, Kanpur Nagar & others) quashed the aforesaid orders dated 08.08.1994 and 18.01.1995 and remanded the matter to the Rent Control and Eviction Officer/ City Magistrate, Kanpur Nagar to decide afresh in accordance with law, which is reproduced below:- "Heard learned counsel for the parties. The dispute relates to first floor portion of house no. 15/51, Civil Lines, Kanpur. The petitioners claim to be purchaser of 1/3rd share by means of registered sale deed dated 29.1.1992 which included the disputed first floor accommodation in which one Smt. Asha Gupta was tenant. An application 6.2.1992 was filed by respondent no.3 for allotment on the allegation that tenant-Smt. Asha Gupta is likely to vacate the premises. The Rent Control & Eviction Officer asked for a report from the Inspector. The Inspector submitted a report dated 13.4.1992 to the effect that the tenant Smt. Asha Gupta has given a statement before him that she is likely to vacate the tenanted portion. The Rent Control & Eviction Officer vide order dated 15.5.1992 declared vacancy. On the same day, the petitioner moved an application under Section 16 of U.P. Act No. XIII of 1972 (for short ''the Act') for release. The said application was objected to by the prospective allottee respondent no.3. However, the Rent Control & Eviction Officer vide order dated 21.10.1993 dismissed the objection and held that the release application was fully maintainable. Respondent no.3 challenged the order by filing the revision. The revisional court also dismissed the revision and held that the release application to be maintainable. Thereafter, the Rent Control & Eviction Officer vide order dated 8.8.1994 dismissed the release application and by the same order allotted the premises in dispute in favour of respondent no.3. Feeling aggrieved, the petitioner filed a revision which has also been dismissed. The revisional court also dismissed the revision and held that the release application to be maintainable. Thereafter, the Rent Control & Eviction Officer vide order dated 8.8.1994 dismissed the release application and by the same order allotted the premises in dispute in favour of respondent no.3. Feeling aggrieved, the petitioner filed a revision which has also been dismissed. It has been urged by learned counsel for the petitioner that the Rent Control & Eviction Officer as well as revisional court has committed a manifest illegality in as much as release application of the petitioner ought to have been decided first before proceeding to consider the allotment application of respondent no.3. There appears to be force in the argument advanced by learned counsel for the petitioners. The release of the disputed accommodation was sought by the landlord on the ground that there are eighteen members in his family and they are living in a very small tenanted accommodation. It was also stated that sons and daughters are of growing age and are students and they require separate accommodation for their studies. The Rent Control & Eviction Officer instead of deciding the release application filed by the petitioners on its merit proceeded to compare the need of the prospective allottee with the petitioners and after recording a finding that the need of the prospective allottee was more genuine rejected the release application and allotted it in favour of respondent no.3. The approach of the Rent Control & Eviction Officer was patently illegal. It is well settled that the release application filed by the landlord has to be considered first on its own merits and it is only after the same is rejected the authority can proceed to consider the allotment. In the present case instead of deciding the release application filed by the petitioners the Rent Control & Eviction Officer wrongly and illegally proceeded to compare the need of the landlord and the prospective allottee and finding the need of the prospective allottee to be more allotted it in his favour. The same mistake has been committed by the revisional court. There also appears to be some dispute with regard to the fact whether the accommodation in dispute falls within 1/3rd share which was purchased by the petitioner or not. The same mistake has been committed by the revisional court. There also appears to be some dispute with regard to the fact whether the accommodation in dispute falls within 1/3rd share which was purchased by the petitioner or not. Though some arguments have been raised in this regard but the dispute being question of fact cannot be effectively gone into in writ jurisdiction. The said dispute can be easily resolved by the authorities below on the basis of sale deed and other evidence. An application for impleadment has been moved by one Mehedi Hasan on the ground that the first floor of the accommodation in dispute has been purchased by him and the same has been released in his favour by the Rent Control & Eviction Officer vide order dated 10.12.1998 in case no. 90 of 1998. Though the petitioners have denied the allegation made in the impleadment application but again these are disputed question of fact which can be better ascertained and adjudicated by the Rent Control & Eviction Officer on the basis of evidence. Considering the facts and circumstances, the order dated 8.8.1994 and 18.1.1995 passed by respondent no.2 and 1 respectively are hereby quashed. The case is remanded back to the Rent Control & Eviction Officer/City Magistrate, Kanpur Nagar to decide it afresh in accordance with law and in the light of the observation made hereinabove. In the result, the writ petition stands allowed. Sri Mehedi Hasan who has sought impleadment in the present writ petition is permitted to move an application in the proceedings before the Rent Control & Eviction Officer and to lead evidence of his claim of having purchased the accommodation in dispute and the same having been released in his favour as alleged by him. In case any such application is made the same shall be considered by the Rent Control & Eviction Officer in accordance with law." 5. It is jointly stated by learned counsel for the parties that pursuant to the afore-quoted order dated 27.04.2006, the Case No.35 of 1994 is still pending before the Rent Control and Eviction Officer/City Magistrate, Kanpur Nagar. 6. It is further stated by learned counsels for the parties that a Partition Suit No.153 of 2006 (Sahida Bano vs. Shafiq Qureshi and other) is also pending in the court of Civil Judge (S.D.), Kanpur Nagar. 7. 6. It is further stated by learned counsels for the parties that a Partition Suit No.153 of 2006 (Sahida Bano vs. Shafiq Qureshi and other) is also pending in the court of Civil Judge (S.D.), Kanpur Nagar. 7. In the meantime, the impugned order dated 18.12.2017 in Case No.18 of 2017 under Section 18(3) of the U.P. Act No.13 of 1972 has been passed with respect to the portion of the house in question in possession of Sri Zahirul Hasan. The aforesaid Zahirul Hasan has been directed to be evicted and for that purpose Form-gha has been directed to be issued. The consequence of this order would be that the illegal occupant, namely Sri Zahirul Hasan has been evicted but the possession shall come in the hands of the applicant namely Smt. Shaida Bano who is respondent No.2 herein. 8. The grievance of the petitioner is that although the Case No.35 of 1994 pursuant to the order of remand dated 27.04.2006 passed in Writ Petition No.4437 of 1995 and a Partition Suit No.153 of 2006 are pending and therefore it is not justified that the respondent No.2 may get possession of the disputed portion without there being a final decision in the aforesaid two cases. The petitioner is aggrieved only to this extent that his rights with respect to the possession over the disputed portion may be adversely affected by the impugned order dated 18.12.2017. 9. Considering the facts and circumstances, I do not find any good reason to interfere with the order dated 18.12.2017 to the extent the eviction of unauthorised occupant namely Sri Zahirul Hasan is concerned. However, interest of the petitioner and other co-owners needs to be protected. The dispute between co-owners with respect to the possession over the disputed portion of the house in question can be finally decided only by way of decision in the Partition Suit No.153 of 2006 and the decision n the afore-said Case No.35 of 1994 said to be pending before the Rent Control and Eviction Officer, / City Magistrate, Kanpur Nagar. 10. 10. To avoid multiplicity of litigation and further hardships to the parties, learned counsels for the petitioner and respondent No.2 respectively, on instruction of the petitioner and the respondent No.2 who are present in court, jointly state that in the interest of justice, this writ petition may be disposed of providing for expeditious and time bound disposal of Case No.35 of 1994 and Partition Suit No.153 of 2006 and the possession likely to be obtained by the respondent No.2 pursuant to the impugned order dated 18.12.2017 may be made subject to the result of the aforesaid two cases, namely Case No.35 of 1994 and Partition Suit No.153 of 2006. 11. As jointly agreed by learned counsels for the petitioner the respondent No.2 and also to meet the ends of justice, this writ petition is being disposed of with the following directions:- (i) The Rent Control and Eviction Officer/ City Magistrate, Kanpur Nagar shall decide the Case No.35 of 1994, strictly in accordance with law, expeditiously preferably within four months from the date of presentation of a certified copy of this order, without granting any unnecessary adjournment to either of the parties. (ii) The Partition Suit No.153 of 2006 (Shaida Bano vs. Shafiq Qureshi and others) shall be decided by the concerned court below in accordance with law, expeditiously preferably within one year from the date of presentation of a certified copy of this order without granting any unnecessary adjournment to either of the parties. (iii) If pursuant to the impugned order dated 18.12.2017 in Case No.18 of 2017 (Smt. Shaida Bano vs. Zahirul Hasan) passed by the City Magistrate/ Rent Control and Eviction Officer, Kanpur Nagar, the possession of the disputed portion of House No.15/51, Kanpur Nagar is obtained by the respondent No.2, the same shall be subject to decision in Case No.35 of 1994 and finally subject to decision in Partition Suit No.153 of 2006. (iv) Whosoever is found to be legally entitled for possession over the disputed portion of the house in question pursuant to the decision in Case No.35 of 1994 and finally in Partition Suit No.153 of 2006, the other co-owners shall not make any objection or shall not obstruct in delivery of possession and in the event any obstruction by the other co-owners against the right of the co-owner who is found to be legally entitled for possession over the disputed portion of the house in question, then such co-owner/ co-owners shall be liable to be proceeded in accordance with law including a proceeding for contempt. (v) None of the co-owners shall either alienate or transfer or create any third party interest or right in any manner whatsoever with respect to the disputed house in question till the decision in the aforesaid two cases, namely Case No.35 of 1994 and Partition Suit No.153 of 2006. With the aforesaid directions, this writ petition is disposed of.