Sibghat Ullah Khan, J. - (1.) AT the time of hearing neither respondent No. 5 allottee nor the landlord who was impleaded on the direction of the Court appeared. Only arguments of learned Counsel for petitioner/tenant were heard. Property in dispute is a small shop situate in Kanpur of which newly impleaded respondent i.e. Shri Radha Madhoji Virajman Mandir, through its Sarvarakar Rameshwar Prasad son of Ram Ratan Gupta resident of 7/188 Swarup Nagar, Kanpur Nagar is landlord. Respondent No. 5 filed an application for allotment on the ground that the previous tenant had sub let the shop in dispute to the petitioner hence it was legally/deemed vacant R.C.I. filed his report on 12.2.1976. Vacancy was declared/notified by two line order by R.C. and EO Kanpur on 1.3.1976. Number of the property in dispute is 102/184 Colonelganj Kanpur. Later on by order dated 2.7.1976 shop in dispute was allotted to respondent No. 5. Thereafter the petitioner filed application for review under section 16(5) of U.P. Act No. 13/72 on 5.7.1976. R.C. and E.O/A.D.M. (CS) Kanpur by order dated 12.12.1978 rejected the review petition. Thereafter the petitioner filed Rent Revision No. 11/79 against order dated 12.12.1978. IX A.D.J., Kanpur dismissed the revision on 15.11.1980 hence this writ petition.
(2.) THE monthly rent of the shop in dispute is Rs. 250/ - even though learned Counsel for the petitioner stated that the said rent was -later on enhanced and at present petitioner is paying Rs. 30/ - per month rent, however, there was no evidence on record in respect of enhancement of rent. Even in the supplementary affidavit sworn on 16.4.2005 and filed on 20.4.2005 when arguments were heard and judgment was reserved no such assertion has been made. In the year 1975 Abdul Rehman and Shafi Mohd. had filed the suit against the petitioner in respect of property in dispute being suit No. 976/75 on the file of J.S.C.C., Kanpur claiming therein that they were chief tenants and petitioner was their sub tenant. Initially the said suit appears to have been decreed ex -parte on 26.10.1976. However, it appears that later on the said ex -parte judgment and decree was set aside and thereafter suit was dismissed in default on 23.11.1982. The said order has been annexed alongwith the supplementary affidavit filed on 20.4.2005. R.C. and E.O. as well as learned A.D.J. held that as in O.S. No. 976/75 Abdul Rehman and Mohd. Shafi had stated that petitioner was their sub tenant hence the said fact stood proved. The aforesaid two persons did not file any affidavit etc. before R.C. and E.O. to substantiate the said claim. The allegations made in O.S. No. 976/75 were denied by the petitioner in the written statement, which he filed in the said suit. The said suit was dismissed in default. The allegation in the plaint of the said suit are therefore, neither binding upon the petitioner nor they can be taken to be an evidence in case giving rise to the instant writ petition. In case J.S.C.C. had recorded some finding in the said suit then those findings would have operated as res judicata. Neither landlord nor Abdul Rehman and Mohd. Shafi filed any affidavit or other evidence before R.C. and E.O. in respect of the allegation that the petitioner was sub -tenant of the aforesaid Abdul Rehman and Mohd. Shafi.
(3.) IN view of the above I am of the view that finding of sub tenancy recorded by the R.C. and E.O. and confirmed by the A.D.J., are based upon inadmissible evidence. In the instant writ petition landlord has not come forward inspite of sufficient service.;