All the heirs and legal representatives of a deceased tenant are necessary parties to a suit for eviction under the West Bengal Premises Tenancy Act, 1956, as they have the right to defend the suit by claiming that there had been no valid determination of the lease and that their right to continue in occupation as lessees still subsists.

1. THIS appeal from appellate decree at the instance of two of the substituted heirs and legal representatives of the sole deceased defendant tenant arises out of a suit for eviction admittedly governed by the provisions of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as the said Act. The tenant defendant having died pending the suit, the plaintiff landlord brought on record by substitution well within the time prescribed by law, such of his heirs and legal representatives as were ordinarily residing with the tenant defendant at the time of his death. The plaintiff landlord however left out two of the sons and two of the daughters of the deceased tenant defendant not so residing with him at the time of his death. The heirs and legal representatives so substituted made all attempts to delay the proceeding in various manners and on the expiry of 90 days from the date of death of the tenant defendant raised an objection that some of the heirs and legal representatives of the deceased tenant defendant having been left out and the time for substituting them having expired, the suit has abated not only against them but as a whole. The objection so raised prevailed with the learned Subordinate judge in the trial court who by his order dated October 3, 1972, disposed of the suit by recording abatement of the suit as a whole.

2. THE plaintiff landlord preferred an appeal. The learned Judge in the court of appeal below on March 14, 1973, set aside the decision of the trial court in terms of the judgment delivered by him and remanded the suit for trial. He held that on the provisions of the said Act such of the heirs and legal representatives of the tenant defendant as were not ordinarily residing with the tenant defendant at the time of his death and as such were left out from substitution, are not necessary parties to the suit and were not required to be brought on record by substitution at all. So he held that the suit had not abated and the substitution as effected by the plaintiff landlord is sufficient and is in accordance with law. The learned judge held as such in view of the amended definition of the tenant as in section 2 (h) of the said Act on its 1965 amendment.

Two of the substituted heirs and legal representatives have now preferred the above second appeal to this court disputing the correctness of the decision of the lower appellate court.

3. MR. Ganguly, learned counsel appearing in support of this appeal has raised two points. In the first place he has contended that the trial court having only recorded the factum of abatement on the plaintiffs failure to bring on record in time all the heirs and legal representatives of the deceased tenant defendant and when such a result follows as a matter of course in law under the provisions of Order 22 Rule 4 of the Code of Civil Procedure, no appeal lay before the lower appellate court so that the appellate decision is wholly without jurisdiction. Secondly on merits Mr. Ganguly has contended that in a suit for eviction on the death of the tenant defendant all his heirs and legal representatives are required to be brought on record by substitution in as much as the lease in favour of the tenant created an interest in the property which is heritable by all the heirs and legal representatives in case the tenant dies intestate as in the present case. According to Mr. Ganguly, provisions of the said Act do not alter the position in this respect in any way. Hence, accordingly to Mr. Ganguly, the lower appellate court was in error in law in holding that the suit for eviction can still proceed even when some of the heirs and legal representatives who do not ordinarily reside with the tenant at the time of his death had not been substituted.

4. THE point so raised by Mr. Ganguly have been contested by Mr. Mukherjee learned counsel appearing for the plaintiffs-respondents. According to Mr. Mookerjee, the order recording abatement of the suit as a whole really a