JUDGMENT :

(Soumen Sen, J.) :

1. The appeal is arising out of the judgment and decree both dated 31st August, 2009 passed by the learned Judge 11th Bench, City Civil Court at Calcutta in Title Suit no. 869 of 1986.

2. The plaintiff filed a suit for recovery of vacant possession upon expiry of lease by efflux of time and mesne profits assessed at Rs.10912.

3. Briefly stated, one Motilal Boral executed a registered deed of lease dated 30th September, 1963 in favour of one Md. Allauddin Rangrez the original defendant for a period of 21 years with effect from 21st October, 1963 at a monthly rent of Rs.250/-which was mutually increased to Rs.300/-per month payable according to the English calendar month. By virtue of the said deed the original defendant became a lessee in respect of the suit premises namely premises no. 22, Ratu Sarkar Lane, situated in the city of Calcutta. The suit property was conveyed and transferred jointly in favour of Hazi Ali Mohammad Razuka (hereinafter referred to as ‘Hazi’ the original plaintiff no.1 and his wife Hajaan Lachmi Bibi (hereinafter referred to as ‘Lachmi’) by a registered deed of conveyance dated 23rd April, 1975 executed by Motilal Boral for valuable consideration. Consequent upon the aforesaid sale Motilal served a letter of attornment to the original defendant intimating him of the change of ownership and asked him to attorn the lease in favour of the vendors. The original defendant accordingly attorned the said lease in favour of the original plaintiff no.1 and his wife and paid rent to them. The wife of the original plaintiff no.1 died on 5th February, 1979 leaving behind the original plaintiff no.1 and her two sons, the plaintiff nos. 2 and 3 sons as her legal heirs and representatives. They inherited the interest of the deceased in the property. The original defendant was informed about the death of Lachmi whereupon the rents were being paid to the original plaintiff no. 1 and his sons by the defendant. The rent receipts were being issued jointly by the plaintiffs. The original defendant became a tenant under the plaintiffs. The lease expired by efflux of time on 30th September, 1984. In spite of expiry of the said lease the original defendant failed to deliver the vacant and peaceful possession of the suit premises to the plaintiffs. The plaintiffs alleged that the original defendant failed and neglected to pay the rent in respect of the suit premises for the period from February, 1983 to September, 1984 aggregating a sum of Rs.6000/-. On the ground of expiry of the lease and default in paying the rents the plaintiffs filed a suit for recovery of possession, mesne profits and other reliefs.

4. The original defendant contested the suit by filing written statements. The original defendant in his written statement has stated that upon the death of the plaintiff no.1 his legal heirs was not substituted and accordingly the suit has abated. The wife of the plaintiff no.1 has predeceased the plaintiff no.1. The plaintiff no.1 had no son or daughter and as such under the Mohammedan Law his younger brother Din Mohammad being his only heirs was required to be brought on record. In absence of Din Mohammad Razuka the suit has abated. The original defendant has also stated that Lachmi, the predeceased wife of plaintiff no.1 is survived by her younger sister Musammat Mangi Bibi has inherited her estate according to the share under the Mohamedan Law governing Sunni Sk of Muslims. It was alleged that the plaintiff no 2 and 3 was interested to disinherit Mangi Bibi by wrongly describing themselves as the sons of the plaintiff no.1. It was stated that Din Mohammad and Mangi Bibi are the only necessary parties to the suits and the plaintiffs have no cause of action to file the instant suit. The registered lease specifically states that the term lessor shall include only his heirs, executors, administrators and representatives. It was also specifically agreed and understood that the assignee of the said