JUDGMENT K.C. Agrawal, J.-House No. 14. situate in Mohalla Chahmir, Budaun, was in occupation of one Mohiuddin. He was murdered and, thereafter, the possession of the house was taken by the police. 2. During the period that the house was still in the custody of the police, an application for its allotment was filed by Smt. Usha Sachdeva, Respondent 2. Apart from respondent 2, some other persons had also filed applications for allotment. According to Smt. Noor Jahan Begam, petitioner 2, the house belonged to a waqf Alal Aulad, and the deceased Mohiuddin was its Mutwalli. She claimed that after his death, she became the Mutwalli of the Waqf property. She asserted that as Mohiuddin was in possession of the house in the capacity of Mutwalli, therefore, after the death of Mohiudin the right passed on to her, and the house was not available for allotment. One Sudesh Kumar also filed an application claiming that he was a lawful tenant having been admitted by Mohiuddin in respect of a part of the aforesaid house, and the portion which was let out to him was in him possession and was not allotable. He claimed himself to be the lawful occupant. 3. On 26-4-1975, the Rent Control and Eviction Officer, allotted the premises to Smt. Usha Sachdev, respondent 2. He however, did not pass any order either on the application of Noor Jahan Begam, petitioner 2, or on the application of Sudesh Kumar. Aggrieved by the aforesaid order of the Rent Control and Eviction Officer, two appeals were preferred before the District Judge ; one by the petitioner 2 and the other by Sudesh Kumar. Both these appeals were consolidated and were decided on 13-12-1975. The learned First Additional District Judge held that the allotment order in favour of Smt. Usha Sachdev was invalid inasmuch as the same could not be passed without deciding the applications filed by Smt. Noor Jehan Begam and Sudesh Kumar. In this view of the matter, he remanded the case to the Rent Control and Eviction Officer. 4. On remand, the Rent Control and Eviction Officer did not record any finding whether Smt. Noor Jehan Begam, petitioner 2, was the Mutwalli of the waqf. He held that as the possession of the property had been taken by the police consequent upon the murder of its owner Mohiuddin, therefore, the premises was liable to be declared vacant. 4. On remand, the Rent Control and Eviction Officer did not record any finding whether Smt. Noor Jehan Begam, petitioner 2, was the Mutwalli of the waqf. He held that as the possession of the property had been taken by the police consequent upon the murder of its owner Mohiuddin, therefore, the premises was liable to be declared vacant. By the said .order, the Rent Control Eviction Officer directed that the papers of the case be laid before him for making an appropriate order of allotment/release. Against this order, the present writ petition was filed. 5. The question that arises for determination is whether the order of the Rent Control and Eviction Officer dated 9-6-1976 can be interfered with at this stage. Normally, against an order declaring vacancy, a writ petition is not entertained. But, in this case, since the petitioner has also sought the quashing of the order of the learned Additional District Judge dated 13-12-1975, it has become necessary to examine the correctness of the order of the Rent Control and Eviction Officer dated 9-6-1976. 6. I have stated above that petitioner 2 was claiming herself to be the Mutwalli of the waqf. As the application filed by her before the Rent Control and Eviction Officer had not been decided, the Additional District Judge directed the Rent Control and Eviction Officer to decide the said application afresh. It had been held by the learned Additional District Judge that in case the Rent Control and Eviction Officer decided the said application in her favour, there would arise no question of allotment of the house to any one. The petitioner 2 was claiming herself to be the Mutwalli of the property in dispute. If she had been found to be the Mutwalli, the Rent Control and Eviction Officer would have not been required either to pass any release order or the allotment order inasmuch as on the death of Mohiuddin, the petitioner 2 Smt. Noor Jehan Begam would have been entitled to occupy the house as the Mutwalli of the house. The Rent Control and Eviction Officer, however, erroneously thought that the said question was not required to be gone into and wrongly observed that the said dispute had to be resolved by a competent court. The Rent Control and Eviction Officer, however, erroneously thought that the said question was not required to be gone into and wrongly observed that the said dispute had to be resolved by a competent court. For the purposes of deciding whether the premises was allotable or that it should have been released, the Rent Control and Eviction Officer was called upon to decide this controversy. He could not side-track the issue by observing that the question of title of petitioner 2 had to be decided by the civil court. 7. The Rent Control and Eviction Officer was further wrong in stating that since the house was in possession of police, the same could be deemed to be vacant. The possession of the house with the police was possession of the true owner. The police had attached the property and taken it into its possession after Mohiuddin had been murdered. The police was not claiming any right in the property. Accordingly, the possession of the police being the possession on behalf of truthful owner, the Rent Control and Eviction Officer was not right in holding that the premises was vacant. If the petitioner 2 had been found to be the Mutwalli of the property, she would be entitled to get the possession of the property from the police. It, therefore, appears to me that the impugned order of the Rent Control and Eviction Officer, dated 9-6-1976 is liable to be set aside. 8. Sri H.S. Joshi, counsel appearing for the petitioners, contended that as the allotment order made in favour of Smt. Usha Sachdev had been set aside, the learned Additional District Judge had no authority to direct that she would continue in possession of the property till the matter had been disposed of finally by the Rent Control and Eviction Officer. The contention of the petitioner's counsel appears to be well founded. The Additional District Judge having held that the allotment order was invalid, should not have directed that Smt. Usha Sachdev would continue in possession. But, since she is in possession of the property for the last several years, it does no appear appropriate to direct that the possession may be obtained from her, specially when the question of title of the petitioner 2 to get possession has still to be gone into. But, since she is in possession of the property for the last several years, it does no appear appropriate to direct that the possession may be obtained from her, specially when the question of title of the petitioner 2 to get possession has still to be gone into. If the Rent Control and Eviction Officer finds that the petitioner 2 is the Mutwalli of the property, she would be entitled to get possession of the property from Smt. Usha Sachdev. In that event, the Rent Control and Eviction Officer, would pass appropriate order that the possession of the property would be given to the petitioner 2 from Smt. Usha Sachdev. 9. For all these reasons, the writ petition succeeds in part and is partly allowed. The order of the Rent Control and Eviction Officer, dated 9-6-1976 is quashed, and he is directed to decide the matter of allotment release in respect of the disputed property afresh in the light of the observations made above. There shall be no order as to costs.