SUDHIR NARAIN, J.

This writ peti tion is directed against the order dated 27-1-1981 declaring the disputed accom modation as vacant by Rent Control and Eviction Officer and thereafter allotting it to Respondent No. 4 on 18-9- 1981 and the order of the revisional court affirming the said order.

2. The facts, in brief, are that the tenancy was in the name of M/s. Sangamlal Gopal Das since 1-4-1955 of which Respondent No. 3 is the landlord. Respon dent No. 4 filed an application for allot ment of the premises in question on the allegation that Petitioner Nos. 2 and 3 who were alleged to be the partners of the firm have constructed their own houses. On this application the Rent Control and Eviction Officer got an inspection made. Smt. Kaushalya Devi, mother of Petitioner Nos. 2 and 3, filed objection supported with an affidavit contending that there was no vacancy. The Rent Control and Evic tion Officer declared the accommodation in question as vacant by order dated 27th January, 1981. The petitioners filed an ap plication for review of the said order but it was rejected on the ground that no review application was maintainable against the order declaring vacancy. The application of the landlord for release of the disputed premises was rejected but it was allotted to Respondent No. 4 by his order dated 18-9-1981. The petitioners preferred a revision against this order which was dismissed on 2-8- 1985.

3. I have heard Sri Janardan Sahai, learned Counsel for the petitioners, and Sri S. S. Pandey, learned Counsel for the contesting Respondent.

The core question is as to whether on the facts and circumstances of the present case the order of the Rent Control and Eviction Officer dated 27-1-1981 declar ing the premises in question as vacant is legally justified. The case of the petitioners

was that the landlord-Respondent No. 3 had let out the premises in question in the year 1955 to M/s Sangamlal Gopal Das, a registered partnership Firm, and such partners are carrying on the business. The Rent Control and Eviction Officer finding that the premises in question was let out to the firm M/s. Saigamlal Gopal Das but it was being used for residential purposes. The firm had two partners, namely, San gamlal Agarwal and Radhey Govind Agarwal. The petitioners failed to prove that Smt. Kaushalya Devi was also one of the partner of the firm as they failed to produce the copy of the partnership deed of the firm. The Rent Control and Eviction Officer held that they had permitted Lalji Agarwal and his wife Ram Kumari to reside in the premises in question, the accommodation (shall be treated as vacant in view of Section 12 (l) (b) of U. P. Urban Buildings (Regulation of Letting, Rent, and Eviction) Act, 1972, (In short the Act) which provides! that if a landlord and tenant of a building has allowed it to be occupied by any person who is not member to the family, the building shall be deemed as vacant. The contention of the petitioners is that in the registered partnership Smt. Kaushalya Devi is also recorded as a partner and in any case, being the mother of Sangamlal Agarwal and Radhey Govind Agarwal, she comes within the definition of family as defined under Section (3) (g) of the Act who was residing with them and, therefore, her oc cupation with the partners will not make her position unauthorised as to come under the mischief of Section 12 (l) (b) of the Act. i

4. The Rent Control and Eviction Officer observe! that Lalji Agarwal with his wife Ram Kumari was in its occupation who were not members of the family of the petitioners. It s not denied that Ram Kumari is real sister of petitioners No. 2 and 3 and daughter of Kaushalya Devi, their mother. Lalji Agarwal is husband of Ram Kumari. Kaushalya Devi filed an af fidavit dated 13- 3-1980. In paragraph 7 of the affidavit it w as stated that she is living separately and her daughter and son-in-laws sometimes stay with her to provide her assistance as she is aged about 95 years. Her daughter Ram Kumari and the son- in-law Lalji Agarwal have no right, title and interest in the premises in question but they come and stay with her with a view to provide her assistance and took after her.

5. Before the Rent Control and Evic tion Officer the contesting Respondent filed an electoral roll in respect of the disputed premises No. 968, Muthiganj wherein they were recorded as voters. The petitioners filed electoral roll for the year 1975 in respect of premises No. 10, Mahajani Tola wherein Lalji Agarwal and his wife Ram Kumari were recorded as voters. The Rent Control and Eviction Officer relied upon the voters list in rela tion to the premises in dispute but did not consider the affidavit filed by Smt. Kaushalya Devi. He also did not assign the reason as to why he has preferred the voters list submitted by the contesting Respondents in respect of Premises No. 968, Muthiganj. The Rent Control and Eviction Officer further recorded a finding that all the partners of the firm had trans ferred the possession to Ramji Agarwal and their sister.

6. If a tenant is residing along with his relations without parting with its posses sion or control over the possession, it can not be held that the accommodation has been occupied by a third person who is not the member of the family. In Ram Prakash V. Shambhoo Dayal Agrawal, AIR 1960 All 395 [LQ/AllHC/1959/210] , a question arose whether a relation starting to live with a tenant would amount to sub-letting of the accommodation and it was found that as he was living merely as relation there was no sub-letting. The Court observed that where the parties are close relations and one of them comes from Pakistan to seek shelter with other, there is no presumption that the sub tenancy is created merely because the host and his wife allow the refugee guest to live with them and then for the sake of enlarg ing the available accommodation shift to another house but leave a part of their family in the old house. There must be cogent evidence that a relationship of sub tenancy was created, and it must be provided that refugee guest was given ex clusive possession of the premises.

7. Section 105 of the Transfer of Property Act defined the lease. It is trans fer of right to enjoy such property. This transfer should be coupled with the ex clusive possession. The Supreme Court in associated Hotels of India Ltd. v. R. N. Kapoor, AIR 1959 SC1262, while pointing out distinction between the licence and lease, observed that a lease is a transfer of interest in the land. The interest trans ferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of lease, and it follows from it that the lessee gets that right to the exclusion of the lessor.

8. In Jagdish Prasad v. Smt Angoori Devi, 1984 (10) ALR 281 (SC), the Honble Supreme Court observed that merely from the presence of a person other than the tenant in the shop, sub-letting cannot be presumed. There may be several situations in which a person other than the tenant may be found sitting in the shop.

9. In Boon Nath Gargv. Sheo Prasad Tandon, 1990 (16) ALR 186, the Court on the finding that the real brother of the tenant was looking after the business, found that such possession does not amount to sub-letting in contravention of Section 12 (1) (b) read with Section 25 of the Act.

10. The Rent Control and Eviction Officer did not consider the affidavit filed by Kaushalya Devi nor gave in reason as to which of the voters list is to be given weight and thirdly, what was the intention of the parties and the circumstances under which the mother permitted her son-in-law to live with her in the disputed premises.

11. Learned Counsel for the petitioner has placed reliance on Paragraph 21 of the affidavit of Rajendra asad Dwivedi (C. A. 2) wherein it was stated that Lalji Agarwal and his family were residing at 10, Mahajani Tola before 1977 and he was evicted by the landlord in the year 1977 whereupon Sri Lalji Agarwal was also allowed to occupy the premises in question by the tenant in the year 1977. As noted above the Rent Control and Evic tion Officer has not considered the various aspects and recorded a categorical finding as to whether the tenant permitted the brother-in-law to occupy permanently and exclusively parting with their possession, the finding against the vacancy cannot be sustained. It requires reconsideration. It has to record specific finding taking into consideration various aspects as indicated above.

12. There is another contention of the learned Counsel for the petitioner. The Rent Control and Eviction Officer recorded a finding. That the disputed premises was let out to the Firm known as M/s. Sangamlal Gopal Das. The Firm is only a compendious names of partners. Section 4 of the Partnership Act provides that the persons who have entered into partnership with one another are called individually partners and collectively firm and the name under which their business is carried out is called the Firm Name. The partnership is the relation be tween the persons who have agreed to share the profit of business carried on by all or any of them acting for all. A partner ship is created to carry on the business. The petitioners have filed a copy of the judg ment in Revision No. 13 of 1993 between the petitioners and Respondent No. 3 wherein the finding was recorded that the accommodation was let out for non- residential purpose. It is contended that the petitioner has not admitted any person as new partner in the business, the accom modation cannot be treated as vacant under sub-section (2) of Section 12 of the Act. As the matter is being remanded, the Rent Control and Eviction Officer shall consider this aspect appeal also.

13. In view of the above the writ petition is allowed. The order dated 27-1-1981, declaring the accommodation in question as vacant, is hereby quashed. The matter shall be again decided by the Rent Control and Eviction Officer in accordance with law keeping in view the observations made above. The allotment order passed in favour of Respondent No. 4 on 18-9-1981 as affirmed by Respondent No. 1 by order dated 2-8-1983 shall be subject to the decision of Rent Control and Eviction Of ficer on the question of vacancy in regard to the premises in question.

Considering the facts and cir cumstances of the case the parties shall bear their own costs. Petition allowed.