HARI SWARUP, J. :- These two appeals have been referred to us as they raised certain questions of law on which there is a difference of opinion in different judgments of this court as well as of other High Courts. The relevant facts giving rise to these appeals in the two cases are the following:-

The appellant in either case was defendant in the suit. The suit was filed for his ejectment and for arrears of rent and damages for use and occupation. The plaintiff claimed that the defendant was the tenant and his tenancy had been terminated by a notice to quit given under Section 106 of the Transfer of Property Act and there was a valid permission from the District Magistrate to institute the suit under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. The defendant in either case denied the validity of the notice terminating the tenancy end also the permission granted under Section 3 of the Act. According to the defendant the tenancy had come down from the ancestors. In the case giving rise to Second Appeal No. 64 of 1966 the tenancy was created at the time of the defendants grandfather while in the case of Second Appeal No. 106 of 1966 it was created at the time of his father. After the death of the original tenant the tenancy rights it was urged were inherited by their heirs including the defendant in either case. It was further urged that the notice terminating the tenancy alleging it to be the tenancy of the defendant alone and asking him alone to vacate, was not sufficient to terminate the tenancy because notice should have been given to all the persons who were tenants-in-common with the defendant. An regards the permission under Section 3 of the Act the case of the defendant was that it was invalid because it had been granted in review order by the District Magistrate and that the District Magistrate had no power to review his order refusing permission.

2-3. The trial court held that the tenancy had been validly terminated as the defendant alone was the tenant and that the permission was also validly granted and that it could not be challenged in the present suit. The first appellate court confirmed the findings of the trial court.

4. The learned counsel for the appellant has first challenged the finding of fact recorded by the Court below that the defendant alone was the tenant. Ordinarily, a finding of fact has to be accepted as final in second appeal, but in the present case we find that the finding has not been recorded by the first appellate court on a consideration of evidence but on the basis of a view of law which, in our opinion, is not correct. The learned District Judge held that on the death of a tenant all the heirs do not become automatically the tenants but the tenancy has to be accepted by them to acquire right. He found that as no evidence was given on behalf of the defendant to show that all the heirs had chosen to become tenants of the accommodation in place of the deceased tenant they could not be deemed to be tenants. Such a view is not warranted by law. Tenancy rights being property rights are heritable and the question of choice does not arise. The nature of tenancy can of course be changed by a fresh lease. Unless the original tenancy is terminated the question again of a fresh lease does not arise. As the evidence was not considered in the first appellate Courts judgment we ourselves looked into the evidence and we find that there is no evidence led by the plaintiff to the effect that the original tenancy had at any stage been terminated or that there was any agreement between the plaintiff and the defendant in regard to the tenancy in dispute. The evidence, on the other hand, of the defendant is that the tenancy had continued and all the heirs were tenants. There is not even a pleading that a fresh tenancy had been created between the plaintiff and the defendant. The plaintiff had purchased the property and stepped into the shoes of the lessor. The earlier lease t