ORDER Satish Chandra, J. - The Petitioner is the owner of a house in Mohalla Golaganj, Chandausi, district Moradabad. He applied for its release. The Rent Control and Eviction Officer dismissed the application for release and allotted it to Smt. Yashoda Devi, Respondent No. 2. The Petitioner filed a representation to the State Government u/s 7-F of the UP (Temp.) Control of Rent and Eviction Act which has been dismissed by the State Government on 30-7-1968. 2. The impugned orders dismissing the application for release and allotting the accommodation in favour of Smt. Yashoda Devi have been challenged principally on the ground that the accommodation was in law not vacant and the Respondents had no jurisdiction to make an order of allotment. 3. Previously the house belonged to the family of one Ganesh. Ganesh, his wife Smt. Makkoo and his son Ram Kishore (Respondent No. 1) on 26-10-1947, mortgaged this house in favour of the Petitioner. The mortgagors not having paid the mortgage money, the Petitioner filed a suit for sale of the house (Suit No. 233 of 1959). A preliminary decree was passed on 30-4-1960, in it and a final decree of sale was given on 3-9-1962. The decree was put in execution and the house was sold. It was purchased by the Petitioner on 6-7-1965. The sale was confirmed on 16-8-1965. 4. The erstwhile mortgagor filed successive suits through his sons and wife challenging the decree for sale but they were dismissed. On 7-11-1967, the Petitioner obtained possession over the house in execution of the mortgage decree. The same day Smt. Yashoda Devi, who was the wife of the mortgagor judgment-debtor Ram Kishore, made an application for allotment of the house to the RC and EO. On 13-11-1967 the RC and EO allotted the accommodation to Smt. Yashoda Devi. When the Petitioner came to know of it, he applied for the setting aside of this order of allotment. Subsequently he made an application for release of the accommodation to himself. These applications were decided against the landlord on the ground that his need was not genuine. 5. The question of law that arises on these admitted facts is whether the accommodation was vacant or was about to fall vacant within the meaning of Section 7(2) to entitle the Respondents to pass an order of allotment. In Babu Lal Vs. These applications were decided against the landlord on the ground that his need was not genuine. 5. The question of law that arises on these admitted facts is whether the accommodation was vacant or was about to fall vacant within the meaning of Section 7(2) to entitle the Respondents to pass an order of allotment. In Babu Lal Vs. Sheonath Das, AIR 1967 SC 1329 the Supreme Court has held that the question of vacancy was a question of jurisdiction. The existence of the vacancy was a condition precedent to the exercise of the power of allotment. If there was no vacancy an allotment order would be without jurisdiction. In the present case the admitted position is that the house belonged to the family of Ram Kishore. They mortgaged it to the Petitioner. Ultimately their title vested in the Petitioner by virtue of the decree for sale. The Petitioner acquired title to the house from the erstwhile owners through a decree of the Court. In Lachman Das v. Rent Control and Eviction Officer 1953 AWR 125 a Division Bench of this Court held that where a person purchased the rights of ownership and gets into possession of the accommodation from the previous owner, who was in fact occupying the accommodation for his own purposes, it cannot be said that at any point of time the accommodation had fallen vacant. In that case the Bench emphasised that before the accommodation actually fell vacant the accommodation was transferred and in the circumstances the RC and EO had no jurisdiction to make the allotment. These observations are applicable to the present case. Here also the Petitioner had purchased the title. In pursuance of that title, he had obtained possession from the erstwhile owner who was in actual possession for his own purposes. In such a situation, the accommodation could not be deemed to be vacant within the meaning of Section 7(2). The accommodation, therefore, could not be the subject matter of an order of allotment. 6. Learned Counsel for the Respondents urged that the Petitioner had not taken this plea specifically either before the RC and EO or before the State Government. Even so, when the facts are admitted and thereon a question of jurisdiction squarely arises, a petition cannot, in my opinion, be thrown out merely because the point was not taken before the authorities below. Even so, when the facts are admitted and thereon a question of jurisdiction squarely arises, a petition cannot, in my opinion, be thrown out merely because the point was not taken before the authorities below. A question of jurisdiction can be raised before this Court for the first time. 7. The petition, therefore, succeeds and is allowed. The impugned order of allotment is quashed. The parties will, however, bear their own costs. If the Respondents have taken possession in pursuance of the order of allotment they will restore it back to the Petitioner.