K.C. Agarwal, J.

1. This revision is directed against the judgment of V Additional District Judge, Saharanpur dated 9th January, 1976 dismissing the revision of the Petitioners filed under Section 25 of the Provincial Small Causes Court Act.

2. The facts briefly stated are these:

The property in suit belonged to one Ganga Prasad. It was in the tenancy of Ilahi Bux alias Kala on the monthly rent of Rs. 20. Ganga Prasad sold the same to Akbar Ali, the Plaintiff-opposite party by a sale deed on 22-6-1971. It, however, appears that Ilahi Bux died in the meantime. After the death of Ilahi Bux, Akbar Ali purchased the arrears of rent which were due to Ganga Prasad from the latter under a sale deed executed on 18-7-1972. Akbar Ali thereafter sent a combined notice of termination of tenancy as well as that of demand to the sons and the wife of deceased Ilahi Bux. The notice was addressed to all the Defendants - the three sons and the widow of deceased Ilahi Bux and was served on Masita and Smt. Rahiman on 26-7-1972. According to the case of the Plaintiff as the Defendants did not send the rent to the Plaintiff within thirty days of the receipt of the notice, therefore, the Defendants were the defaulters and were liable to eviction. The Plaintiff also alleged that a portion of the house in the tenancy of the aforesaid Defendants had been let out unauthorisably and without permission of the landlord to Siddiq Defendant No. 5, therefore, the aforesaid Defendants were liable to eviction on the ground of illegal subletting as well.

3. The suit was contested by the Defendants who denied the allegations of the Plaintiff and alleged that the suit was bad for the defect of misdescription of the disputed property, that no notice under Section 106 of the Transfer of Property Act was ever served on the Defendants, that only two months rent was due, that Rs. 240 as arrears of rent was sent to the Plaintiff by money order on 26-8-1972, that the Defendants had not sublet the premises to Siddiq inasmuch as he was living in the house as a member of the family.

4. On the pleadings of the parties the trial Court framed a number of issues. It held that the Defendants were defaulters having not paid the rent to the Plaintiff within thirty days of the receipt of the notice and that as a portion of the premises had been illegally sublet, therefore, the Defendants were liable to eviction. Aggrieved by the aforesaid judgment of the trial Court the Defendants preferred a revision under Section 25 of the Provincial Small Causes Court Act. In revision the decree and judgment of the trial Court was maintained and the suit of the Plaintiff stood decreed. Feeling aggrieved the Defendants have come to this Court.

5. The first question raised by the learned Counsel was that as Ilahi Bux died not only leaving behind the three sons viz. Bundoo, Masita and Allah Band but also a daughter Smt. Boondi, therefore, the suit filed by the Plaintiff for ejectment without impleading Smt. Boondi was not maintainable and that the same was liable to be dismissed on this ground. As a matter of fact this plea had been raised by the Defendants in the written statement as well and the following issue had been framed by the trial Court on this controversy. The issue was "whether the suit is bad for non-joinder of Smt. Boondi as alleged by the Defendants".

6. However, before dealing with this question I wish to mention that during the pendency of the suit in the trial Court Smt. Rahiman the widow of deceased Ilahi Bux was dead and thereupon Smt. Boondi was brought on record as her heir and legal representative. The fact that she was subsequently brought on the record was, however, immaterial for the purposes of deciding the controversy raised by the Defendants in the suit.

7. Smt. Boondi admittedly was married and was living with her husband, She did not claim any right of precedence in the property in dispute. It further appears from the evidence brought on the record that after the death of Ilahi Bux an application under Section 3 or the U.P. Control of Rent and Eviction Act for permission to bring a suit for ejectment against the Defendants was brought by the landlord. In reply to that application the three sons of deceased Ilahi Bux and their mother had claimed that they were the tenants of the premises in suit and that they were living in the same. Taking this fact into consideration and other circumstances existing on the record the trial Court as well as the learned Judge in the revision found that Smt. Boondi must have surrendered tenancy rights inherited from her deceased father in favour of other co-tenants, namely, Defendants Nos. 1 to 4 who alone remained in occupation of the property as co-tenants after the death of Ilahi Bux. The learned Counsel appearing for the applicants, however, challenged the aforesaid finding of surrender given by the two Courts below and urged that the question of surrender could arise only when Smt. Boondi had yielded up her rights in favour of the landlord and as no evidence to that effect had been brought on the record the finding of surrender was incorrect.

8. Section 111 of the Transfer of Property Act lays down amongst the other that a tenant can surrender his or her rights expressly or impliedly. An implied surrender as set up by Woodfall in his book on Landlord and Tenant, 27th Edition page 862 could be also by the conduct of both the parties. The observations made by him are to the effect that:

The term "surrender by operation of Law" or "implied surrender" (there being no distinction) is the expression used to describe all those cases where the law implies surrender from unequivocal conduct of both parties which is inconsistent with the continuance of the existing tenancy.

9. In this connection the acceptance of a new lease also was found by Wood-fall as operating as a surrender.

10. In the instant case it would be seen that the Defendants Nos. 1 to 4 claimed themselves as the tenants of the property in dispute on the death of Ilahi Bux and the Plaintiff also accepted the said position by making a claim of rent from those persons. In view of the above it is not possible for me to uphold the contention of the learned Counsel for the Petitioners that Smt. Boondi was also one of heirs and legal representatives of deceased Ilahi Bux and since she had not been impleaded as a party in the suit the same was liable to be dismissed. As a matter of fact a finding given on the question of fact which has to be recorded on the basis of evidence adduced by the parties and as such a finding has been given by the two Courts concurrently, it does not lie within the jurisdiction of this Court while dealing with the revision to set the same aside. Even if it is conceded, as urged by the learned Counsel for the Petitioners, that the Court below committed an error of law in recording that finding, it will not be possible for me to correct the same as the High Court does not have jurisdiction under Section 115 Code of Civil Procedure to correct such a mistake.

11. It was, however, pointed out by the learned Counsel for the Petitioners that the Courts below committed an error in applying the provisions of U.P. Act No. 13 of 1972 and in holding on the basis of the definition of word tenant now given in the said Act that only a person living or residing with the deceased tenant at the time of his or her death alone can be treated as a tenant and not those who were not living with him or her. It is true that the reference has been made to the said definition by both the Courts below in their judgment while holding that Smt. Boondi was not a necessary party but as the finding is not only and exclusively based on the said ground it is not possible to reverse the same on this basis. It may further be worthy of being mentioned that even if it was true that at the time when Ilahi Bux died Smt. Boondi being a daughter may have inherited the tenancy rights but due to her surrender the rights and never claiming herself to be a tenant she was not a necessary party required to be impleaded in the suit.

12. The second submission made by the learned Counsel was that the finding of subletting having been made by the Defendants 1 to 4 in favour of Siddiq was incorrect and thus the decree for eviction granted was liable to be set aside. Nothing could be pointed out by the learned Counsel in support of this contention. It has been found as a fact by the two courts below that a part of the premises bad been let out to Siddiq on payment of rent and that the latter was in exclusive possession of the same for his own benefit. Realising that the said finding was a finding of fact the learned Counsel for the applicants urged that as Ganga Prasad, the previous landlord, did not take any steps to evict either Ilahi Bux or his sons and the widow on the ground of illegal subletting, therefore, the Courts below should have held that the landlord had waived the right and, therefore, could not make it a ground for eviction in the present suit. This plea is liable to be rejected on the grounds more than one. Firstly the applicants never took up this plea of wiaver in the written statement neither any issue was struck on this nor was any evidence adduced. It is too late a stage to permit the applicants to raise this controversy in the revision. This would prejudice the Plaintiff and as the material is not sufficient it will not be possible for this Court to record any finding thereon. Moreover, Section 25 of the Act No. 13 of 1972 now clearly provides that subletting would be illegal. Consequently an act which is illegal cannot be rectified by the conduct of a party and will not clothe it with the sanction of law. It remains to be invalid hence the plea is liable to fail on this ground as well.

13. As the two Courts below found concurrently that the Defendants had illegally sublet the premises to Siddiq they were liable to be evicted from the premises in question. The decree of the trial Court was, however, also based on the finding that the Defendants had committed default in making the payment of rent within a period of thirty days from the date of the receipt of the notice This was, however, assailed by the learned Counsel for the Petitioners on the ground that as some of the co-tenants had been served with a notice on the 3rd August, 1972 and the rent had been remitted on their behalf as well as on behalf of others on 26th August, 1972, the Courts below should have held that the Defendants were not the defaulters. It is to be noted that this plea was not raised by the Defendants in the suit. The learned Counsel however, invited my attention to the affidavit filed in the High Court showing that the said point has been pressed on behalf of the applicants before the learned Judge in revision but was not decided. Be that as it may, as I am upholding the decree of ejectment of the Courts below on the ground of subletting I do not consider it necessary to deal with this matter any further.

14. In the result, the revision fails and is dismissed with costs. The applicants are granted four months time to vacate the permises in question.