1. The appellants herein are owners of the premises which was leased out to one Raj Kumar Choudhury, who died in the year 1969. The defendant respondent is one of the sons of Raj Kumar Choudhury. On 2-12-1970, the landlord executed a fresh second lease in favour of respondent Ranjit Kumar Choudhury, for a period of one year. In the year 1984, the landlord filed a suit for eviction of the respondent tenant on the grounds of his bona fide requirement of the premises as well as on default in payment of rent in respect of the premises in dispute. In the suit, relief for recovery of arrears of rent was also claimed. The trial court substantially dismissed the suit filed by the landlord. However, learned Munsif decreed the suit for recovery of arrears of rent of Rs 245. Aggrieved, the landlord preferred an appeal before the Assistant District Judge. The lower appellate court, having found that the need set up by the landlord was bona fide and, further, the tenant has committed default in payment of rent, decreed the suit after setting aside the trial courts judgment. The tenant thereafter filed a revision against the lower appellate courts order. The High Court, in revision, set aside the order and judgment of the lower appellate court on the ground that since all the heirs of the original tenant, namely, Raj Kumar Choudhury were not impleaded in the suit, the suit was bad for non joinder of the necessary parties. Consequently, the revision was allowed and the suit filed by the landlord stood dismissed. It is against this judgment the appellants are in appeal before us.

2. Learned counsel appearing for the appellants raised three submissions before us. The first submission is that, assuming after the death of Raj Kumar Choudhury all his heirs inherited tenancy rights, in such a case all the heirs became joint tenants of the premises in dispute and impleadment of one of the tenants was sufficient to represent the interest of the remaining joint tenants. Therefore, the suit could not have been dismissed on this ground.

3. The second submission of learned counsel for the appellants is that in any event of the matter, after the lease was executed on 2-12-1970, the tenancy rights of the other heirs impliedly stood surrendered in favour of the landlord and, therefore, the view taken by the High Court that the suit filed by the landlord was bad for non joinder of the necessary parties suffers from legal infirmity.

4. The third submission is that the parties in the suit having gone on trial before the trial court on the basis of the second lease, namely, the lease dated 2-12-1970 and led evidence to that effect, it was not open to the High Court to have dismissed the suit on the basis of the original lease.

5. After we heard the matter, we feel that we need not go into the first and second submissions of learned counsel for the appellants. We are of the view that this appeal can be disposed of on the third submission of learned counsel for the appellants. So far as the third submission is concerned, a perusal of the pleading in the plaint shows that the suit filed by the landlord was on the basis of the second lease dated 2-12-1970, although it was not specifically referred to in the plaint. In the written statement the tenant admitted that the plaintiff is a landlord and he is a tenant. It was also admitted therein that there existed a relationship of landlord and tenant between him and the plaintiff, and further he has been paying rent to the plaintiff. It was very well understood before the trial court that the parties were litigating on the basis of the second lease deed, namely, lease deed dated 2-12-1970. It is no doubt true that one of the preliminary objections taken by the tenant in his written statement was that the suit was bad for non joinder of the other legal heirs of the original tenant and also an issue was struck to that effect. But the mere objection or framing of an issue in that respect was not sufficient, as no factual foundation was laid in that regard in the written statement and, therefore, there was no occasion for the Court to embark upon the said inquiry. There having been no factual foundation about the said plea, the High Court was not justified in entering into that question.

6. We, therefore, find that the judgment of the High Court is not sustainable in law and, therefore, it deserves to be quashed. Accordingly, the judgment and order of the High Court under challenge is set aside and the case is sent back to the High Court for deciding the revision filed by the tenant in accordance with law. The appeal is allowed. There shall be no order as to costs.