S. U. KHAN, J. ( 1 ) AT the time of hearing no one appeared for respondents hence only the arguments of learned Counsel for petitioner were heard. ( 2 ) THIS is landlords writ petition. ( 3 ) PETITIONER landlord filed S. C. C. Suit No. 106 of 1995 against the respondents nos. 1 to 3 for eviction and recovery of arrears of rent before J. S. C. C. Jhansi. It was alleged in the plaint of the suit that initially Dansa Nai (barber) was the tenant of the shop in dispute rent of which is Rs. 15/- per month, that after death of Dansa Nai his son Bishan Sen defendant-respondent no. 1 became tenant, it was further alleged that shop had been sub let to defendant respondent Nos. 2 and 3 who are father and son. The defendant respondent no. 2, Nand Kishore is father and defendant respondent No. 3 rakkhu Sen is son of Nand Kishore. Defendant respondent No. 2 Nand Kishore contested the suit and stated that since before the death of Dansa Nai his son bishan Sen had separated from him and Nand Kishore being sisters son of dansa Nai was doing business from shop in dispute alongwith Dansa Nai during his life time and independently after his death. ( 4 ) IN this manner subletting was virtually admitted. Sisters son is not included in the definition of family member. J. S. C. C. Jhansi decreed the suit on 22. 10. 1997 for eviction as well as for recovery of arrears of rent. Against the said judgment and decree Nand Kishore filed S. C. C. Revision No. 95 of 1997. District Judge Jhansi allowed the revision on 12. 10. 1995 set aside the judgment and decree passed by the Trail Court and remanded the matter to the Trial court for fresh decision. The said judgment and order has been challenged by the landlord through this writ petition. ( 5 ) ACCORDING to para 20 of the written statement, Dansa Nai died in the year 1988. However, according to allegation made in the plaint Dansa Nai died about two years before filing of the suit, but, concealing the said fact for the said period of two years the rent receipts were obtained from the landlord in the name of Dansa Nai. However, according to allegation made in the plaint Dansa Nai died about two years before filing of the suit, but, concealing the said fact for the said period of two years the rent receipts were obtained from the landlord in the name of Dansa Nai. Nand Kishore respondent No. 2 pleaded in para 24 of his written statement that after the death of Dansa Nai he became the tenant of the shop in dispute and Bishan Singh son of original tenant had got no concern with the shop in dispute. Sri Bishan Singh in his reply to notice (paper no. 14-C) had stated that he had no concern with the shop and the same was never in his tenancy. ( 6 ) NAND Kishore also set up some will executed by original tenant in his favour. However, Revisional Court rightly held that tenancy could not be bequeathed. ( 7 ) HOWEVER, Revisional Court took a very strange view of the matter. It held that Bishan Sen was not claiming any right in the tenancy after the death of his father which amounted to his express relinquishment of tenancy right, hence tenancy would devolve upon the next heir of the original tenant i. e. his sisters son. Matter was remanded to consider this aspect. ( 8 ) IN my opinion, the view taken by Lower Revisional Court is patently erroneous in law. Question of devolution of the property upon second degree heirs arises only when there is no first degree heir in existence or living. If first degree heir is living and he relinquishes his right, property does not devolve upon second degree heirs particularly tenancy rights. ( 9 ) THE judgment of Lower Revisional Court is, therefore, liable to be set aside. ( 10 ) SUB tenancy was virtually admitted by Nand Kishore. Accordingly there is absolutely no error factual or legal in the judgment of the Trial Court. ( 11 ) WRIT petition is, therefore allowed, judgment and order passed by the revisional Court is set aside and judgment and decree passed by the Trial Court is restored. From today till actual eviction through execution, respondent Nos. 2 and 3 shall be liable to pay rent/damages for use and occupation @ Rs. 750 per month. Petition Allowed. .