SARJOO PRASAD Vs. KUNJ BEHARI LAL AND ORS

JUDGEMENT

(1.) This is an appeal by Sarjoo Prasad, Defendant No. 3, who is an allottee under the UP Rent Control and Eviction Act (Act 3 of 1947). The suit was filed by Kunj Behari Lal, Plaintiff. Kunj Behari Lal's case was that the shop in question was owned by Radhey Shyam, that he had created a tenancy in favour of Sitaram Defendant, that Sitaram in his turn had created a sub-tenancy in his favour, that Radhey Shyam, the owner had wished to repair the shop and had, therefore, asked him (Kunj Behari Lal) to temporarily vacate the shop so that the repairs could be carried out, that after the repairs had been carried out Radhey Shyam refused to permit Kunj Behari Lal to re-enter the shop and took possession of it, that in consequence he (Kunj Behari Lal) filed a suit against Radhey Shyam impleading therein Sitaram, his tenant in-chief, that in this suit it was held that Kunj Behari Lal was entitled to possession of the premises as the tenancy in favour of the tenant-in-chief had not been terminated and he (Kunj Behari Lal) had been lawfully let in as a subtenant. The case of Kunj Behiri Lal was that when he tried to obtain possession of the shop under his decree by execution, he was obstructed by Sarjoo Prasad, Defendant No. (3) who claimed possession over the shop under an allotment order issued in his favour. The execution Court upheld Sarjoo Prasad's claim. Hence the suit, Kunj Behari Lal's case is that the said allotment order is invalid and inoperative and he has filed this suit for a declaration that he is entitled to possession of the shop. The Defendant No. (3) Sarjoo Prasad has resisted the suit and claimed that the allotment order was valid, that the tenant-in-chief Sita Ram had surrendered the tenancy on 20-1-1948 and that the landlord had on 31-1-1948 taken possession, that the allotment order was subsequent to the surrender of tenancy and the Rent Control Officer was entitled to allot the shop because there had been a vacancy.

(2.) The learned Munsif framed the following issues:

(3.) Whether the suit is barred by Section 42 of the Specific Relief Act