P C. Verma, J.
This writ petition has been filed seeking writ of certiorari to quash the order dated 14.2.2001 and 16.3.2001, passed by the District Supply Officer/Prescribed Authority/Rent Control, Nainital in Case No. 39 of 1990, by which tenancy was declared vacant. According to the petitioner, he is son of the brother of the wife of original tenant and is taking education living with her and he became major during his life time and after his death, he continued to remain there.
2. Learned counsel for the respondent has disputed this factual position but did not dispute the occupation of the petitioner. He submits that the petitioner is unauthorised occupant. Therefore, the vacancy has rightly been declared under Section 12 of U. P. Act No. XIII of 1972.
3. Section 12 of U. P Act No. XIII of 1972 reads as under
"12. Deemed vacancy of building in certain cases.-(1) A landlord or tenant of a building............."
4. From perusal of aforesaid section, it is clear that the words `landlord' and `tenant' used in the aforesaid section, clearly indicate that the section is applicable only in case of a landlord and tenant, who are landlord and tenant as defined under this Act. The definitions of landlord and tenant has been defined under the Act.
5. The definitions of landlord and tenant read as under:
"Landlord", in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g), the agent or attorney, or such person.
"Tenant", in relation to a building means a person by whom its rent is payable, and on the tenant's death: (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death. (2) in the case of a non-residential building, his heirs."
6. In the present case, the petitioner is an unauthorised occupant and does not fall within the definition of tenant as defined above in view of the fact that though the petitioner is paying rent, but he is neither an allottee under the U. P Act No. XIII of 1972, nor he is a tenant otherwise under the Act as under the Act rent is not payable by him. Therefore, Section 12 of U. P Act No. XIII of 1972 is not attracted in the present case.
7. Learned counsel for the respondents further submitted that the petitioner has claimed to be tenant on the basis of Will deed, which has been disputed by the learned counsel for the petitioner. However, even if it is assumed for the sake of argument that the petitioner claimed tenancy on the basis of Will, the U. P. Act No. XIII of 1972 does not recognise any such succession of tenancy by Will but only real successor succeeds to inherit the tenancy. Therefore, in this view also petitioner became unauthorised occupant and Section 12 of U. P Act No. XIII of 1972 is not attracted.
8. In view of law laid down in the case of Nutan Kumar v. IIIrd Additional District Judge, Banda and Others, 1993 (2) ARC 204 (FB), the applicant/landlord can get the petitioner/tenant evicted by filing a civil suit. However, if any suit is pending between the parties, the same shall be decided within three months from the date of production of certified copy of this order.
9. The writ petition is disposed of accordingly.