Debangsu Basak, J.

This revisional application at the instance of the plaintiff was directed against Order No. 37 dated March 4, 2003 passed by the Court of the 1st Additional District Judge at Alipore. The plaintiff filed a suit against Dulari Devi, since deceased and the opposite party Nos. 3 and 4 for ejectment of licensee and damages before the learned 3rd Additional Civil Judge (Junior Division) at Alipore. Such suit was registered as Title Suit No. 84 of 2001.

Dulari Devi, since deceased entered appearance and filed written statement. The suit was dismissed on July 31, 2007. An appeal was preferred which was pending. In such appeal an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 was filed.

Dulari Devi, since deceased during her lifetime filed a suit being Title Suit No. 222 of 1998 on June 2, 1998 against the predecessor-in-interest of the plaintiff before the learned 2nd Civil Judge (Senior Division) at Alipore praying for declaration of tenancy right on the ground that, the predecessor-in-interest of the plaintiff did not have any right, title and interest in respect of the suit property.

Dulari Devi died on February 24, 2010. The Opposite Party No. 1 filed an application for substitution in Title Suit No. 222 of 1998. Such application was rejected by an Order dated 27, 2010. An application for review was made. The review application was allowed by an Order dated July 31, 2010. Consequently substitution was also allowed. Being aggrieved by and dissatisfied with such order a revisional application was moved which was disposed of by an Order dated May 16, 2011 by holding that the application under section 151 of the Code of Civil Procedure, 1908 was not maintainable. A review application under Order 47 Rule 1 of the Code was filed with regard to the Order dated May 27, 2010. Such review application was rejected on August 31, 2012. An application under section 151 of the Code was filed in respect of the Order dated August 31, 2012. Such application was pending.

The petitioner made an application under Order 22 rule 4A of the Code in the Court below. The Opposite Party No. 1 filed an application under Order 1 Rule 10 in Title Appeal No. 272 of 2007. By the impugned Order dated March 4, 2013 such application was allowed.

Learned Advocate for the petitioner submitted that, the opposite party was not entitled to be substituted and that the application was visited by the principles of res judicata. The Opposite Party No. 1 could not get himself substituted in Title Suit No. 222 of 1998. Similar contentions as raised in the instant proceedings were raised in Title Suit No. 22 of 1998 and were negated against the Opposite Party No. 1. The two proceedings were between same parties in Courts competent to try such proceedings and raised similar issues with the parties claiming same title. It was further contended that, the petition was not maintainable since a tenancy cannot be bequeathed by way of a Will. In support of such contention, he relied on 2004 Volume 1 Calcutta Law Times page 600 (Kartic Das v. Kamal Ghosh) and 2011 Volume 2 Calcutta Law Journal page 115 (Banwarilal Jalan v. Pramod Kumar Jalan). He submitted that Order 22 Rule 4A of the Code of Civil Procedure, 1908 was not attracted inasmuch as the tenancy could not form part of the estate of the deceased. He relied on the definition of tenant under the new Act.

On behalf of the opposite parties it was submitted that, the opposite parties were entitled to be added as parties under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 and that the learned Judge rightly passed the impugned order.

I have considered the rival contentions of the parties and the materials on record. By the impugned order, the learned Judge allowed a beneficiary under a Will to be substituted in place and stead of the deceased in respect of claim of tenancy. In Banwarilal Jalan (Supra) it was held that, the right of tenancy could not be bequeathed by way of a Wil