- (1.) S. U. Khan, J. In order to retain/obtain possession of a house petitioner and respondent No. 3 who are real brothers initiated and contested proceedings before R. C. and E. O. However, landlord is nowhere in the picture. Even in the writ petition landlord has not been made a party. Before R. C. and E. O. and the lower Revision Court also the landlord was not a party. R. C. and E. O. in one of his orders has observed in passing that notice was served upon landlord (notice tamili hai ). However, there is nothing on the record to suggest that notice was even issued and sent. This is a peculiar situation.
(2.) NOW coming to the fact of the case, Late Kanhaiya Lal was tenant of House No. D-32, Khapra Mohal, Kanpur Nagar. Petitioner as well respondent No. 3 both are sons of Kanhaiya Lal. The first order passed by R. C. and E. O. /addl. City Magistrate-IV, Kanpur Nagar was stated 20-7-1998 through which vacancy was declared (Annexure-1 to the writ petition ). According to the said order proceedings were initiated on the application of Ganga Prasad, respondent No. 3 for allotment. Rent Control Inspector reported that the tenancy was continuing in the name of Kanhaiya Lal (it is not clear on what basis the said fact was reported by Rent Control Inspector) and that rent was being paid by Ganga Prasad S/o Late Kanhaiya Lal and Jamuna Prasad was residing unauthorizedly. In the said report it was mentioned that heirs of Late Smt. Natthi Bai were owner of the house in dispute. However, the name of heirs/owners is not mentioned. In the said order, it is also mentioned that service upon Jamuna Prasad was sufficient as notice was affixed on the door of the house. It appears that a person by the name of Pali had given some statement in writing to the Rent Control Inspector. By the order dated 20-7-1998, Rent Control and Eviction Officer declared vacancy on the basis of report of Inspector and statement of aforesaid Pali. Thereafter petitioner Jamuna Prasad filed objections praying for allotment of house. Rent Control and Eviction Officer by order dated 28-9- 1990 (Annexure-2 to the writ petition) found that Ganga Prasad, respondent No. 3 was better claimant for allotment, hence he allotted the house in dispute to Ganga Prasad. In the order it was mentioned that at that time the house was in occupation of Jamuna Prasad. Against the said order revision was filed by the petitioner which was dismissed on 26-2-1999. The said judgment has not been annexed alongwith writ petition. Thereafter, petitioner filed the writ petition before this Court being Writ Petition No. 10446 of 1999. The said writ petition was disposed of on 26-7- 2000 with the direction to the petitioner to file review application before R. C. and E. O. under Section 16 (5) of U. P. Act No. 13 of 1972. Thereafter petitioner filed review application which has been rejected by order dated 23-1-2001 which is challenged in the instant writ petition alongwith orders dated 20-7- 1998, 28-9-1998 and 26-2-1999. In last paragraph of the order, which is the only relevant paragraph containing the decision, it is mentioned that, "heard both the parties (petitioner and respondent No. 3 ). From the perusal of the record it is clear that Jamuna Prasad (petitioner) was provided due opportunity of hearing and it was only thereafter that orders were passed hence there is no ground for review. The case of the respondent No. 3 as is evident from para 4 of the counter-affidavit is that he as well as petitioner who is his real brother were residing alongwith their father late Sri Kanhaiya Lal till 1993. Thereafter, petitioner left the house and did not reside with the father late Sri Kanhaiya Lal. Thereafter Sri Kanhaiya Lal died and after his death petitioner forcibly entered into the house in dispute and occupied it illegally and without any authority or order in his favour. A person claiming to be legal representative of tenant and residing with him at the time of his death becomes a tenant by virtue of the definition of tenant given in Section 3 (a) of U. P. Act 13 of 1972. It is incongruous that a tenant applies for allotment and accommodation is allotted to him. Builders are allotted to perspective tenant and not to existing valid tenants. Even if the version of respondent No. 3 to the effect that at the time of death of Late Kanhaiya Lal, petitioner was not residing with him and he occupied the house after the death of Kanhaiya Lal is taken to be correct, it is very doubtful that in such situation petitioner can be termed as unauthorized occupant and his occupation may amount to deemed vacancy. In any case R. C. and E. O. has not recorded any findings with regard to aforesaid assertion of the respondent No. 3. It is not clear as to how without recording any such findings R. C. and E. O. declared the house to be vacant even though report of the Inspector itself indicated that the house was in occupation of one of the sons of deceased tenant. It is a dispute between two brothers who are sons of deceased tenant. The forum of R. C. and E. O. chosen by respondent No. 3 is not at all meant for resolving such dispute. The very application for allotment by respondent No. 3 on the basis that he had been ejected by the petitioner, or was not being permitted by the petitioner to occupy the house was not maintainable. The allegation of respondent No. 3 at best may mean that petitioner was trespasser. For ejecting trespasser remedy does not lie by way of allotment before R. C. and E. O. Accordingly writ petition is allowed. Order dated 20-7-1998, 28-9-1998, 23-1-2001 passed by R. C. and E. O. and the order of the learned Addl. District Judge dated 26-2-1999 are quashed. Respondent No. 3 is at liberty to file suit or pursue such remedy as may be available to him under law. Petition allowed. .;