JUDGMENT R.N. Gurtu, J. - 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: 1. Whether the allotment order in favour of Defendant No. 3 is illegal and ultra vires for reasons given in the plaint ? 2. Whether the suit is maintainable ? 3. 2. The learned Munsif framed the following issues: 1. Whether the allotment order in favour of Defendant No. 3 is illegal and ultra vires for reasons given in the plaint ? 2. Whether the suit is maintainable ? 3. Whether the suit is barred by Section 42 of the Specific Relief Act ? 3. The learned Munsif held that the allotment order was invalid. He also held that the suit was maintainable and it was not barred by Section 42 of the Specific Relief Act and was also not banned by Section 16 of the UP Rent Control and Eviction Act. Accordingly, the suit was decreed and the declaration prayed for was granted in favour of the Plaintiff. 4. There were two appeals-one by the landlord and the other by the allottee- which were both dismissed. The declaration granted by the trial court was slightly altered by the Court below and the Plaintiff Kunj Behari Lal was held entitled to a declaration that he had and has now an immediate right to possession and the Appellants have no right in any manner to obstruct him or to resistant possession. 5. As stated, this is an appeal by the allottee. It was contended before me, that as there had been a surrender of tenancy on 20-1-1948 and a vacancy had occurred and the Rent Control Officer was entitled to call upon the owner Radhey Shyam to allot the premises to Defendant No. 3 u/s 7 of the Rent Control Act and that Defendant No. (3) was properly a tenant of the shop and that the Plaintiff had no subsisting right. 6. There is no doubt in this case that there was a surrender of tenancy by the tenant-in-chief, but the surrender was during the subsistence of a sub-tenancy. 6. There is no doubt in this case that there was a surrender of tenancy by the tenant-in-chief, but the surrender was during the subsistence of a sub-tenancy. u/s 115 of the Transfer of Property Act the effect of surrender and forfeiture on under-leases is said to be as follows: The surrender, express or implied, of a lease of immovable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by and the contracts binding on the under-lessee shall be respectively payable to and enforceable by the lessor. The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted u/s 114. 7. It is thus clear that the lessee by surrender cannot destroy the rights which he has himself created in favour of the under-lessee. See Suleman Haji v. Darabshaw 41 Bom. LR 123. In different words, the lessee can only give title to his lessor by a surrender to the same extent as he could give by way of an assignment. See Walter v. Yalden (1902) 2 KB 304. When the lessee surrenders to the lessor, the sub-lessee become a lessee of the lessor on the terms of the sub-lease. See Mulla Transfer of Property Act, 1949 Edition, p. 734. The rights given by the Decree to Kunj Behari Lal, Plaintiff, continued to subsist and upon surrender he became the lessee of the lessor and the shop could not be considered as vacant and in consequence there could be no valid allotment order u/s 7 of the Rent Control and Eviction Act (Act III of 1947) for before an allotment could be made there had to be a vacancy. 8. Accordingly, the judgment and decree of the Court below is correct. I dismiss this appeal with costs.