JUDGMENT

S.D. Agarwal, J. - This is plaintiffs second appeal arising out of a suit filed by the plaintiff-appellants for ejectment of the respondent from the Khaprail in suit and for recovery of arrears of rent and damages for use and occupation amounting to Rs. 126/- and costs of the suit. The case of the appellants was that Jaedish Saran father of the plaintiff-appellants was the owner of the property in dispute, and after his death in July, 1967, they became the owners of the said property, It was alleged that the property in dispute was let out by Jagdish Saran to Kundan and that after the death of Kundan who died in February, 1969, the defendants-respondents Smt. Budhiya and Hari Ram, the widow and son of the deceased Kundan, continued to occupy the Khaprail in suit. It was further alleged that there was default on the part of the respondents in the payment of rent and as such the suit was filed for ejectment. The suit was contested by the respondents on the ground that they did not commit default in payment of rent, ft was further alleged that the suit was bad for non-joinder of necessary parties on the ground that Kundan had other sons and daughters besides the respondent No. 2 Hari Ram and as such the suit was liable to fail on this ground.

2. The trial court held that the respondents were defaulter in the eye of law. It was further held that the respondents alone resided in the Khaorail in suit and therefore, the suit is not bad for non-joinder of necessary parties. The judgment of the trial court is dated 8th May. 1972. Against the said judgment an appeal was filed by the defendant-respondents before the lower appellate court. The lower appellate court allowed the appeal in part and dismissed the suit for ejectment by its judgment dated 27th November, 1972. The lower appellate court was of the view that Hari Ram has five brothers and sisters more who inherited the tenancy right from the deceased Kundan and as such the suit for ejectment against the respondents alone was not maintainable.

3. The judgment dated 27th November, 1972 has been impugned in the present second appeal.

4. Learned counsel for the appellants has urged that the respondents Nos. 1 and 2 alone were tenants of the property in dispute after the death of Kundan. He further urged that the other heirs of Kundan never asserted their rights and as such they impliedly surrendered the tenancy right if any. In the circumstances, the argument is that the suit for s ejectment could not possibly have been dismissed.

5. Learned counsel for the respondents has however, in reply submitted that no plea in regard to surrender has been taken by the plaintiffs in the trial court as well as in the appellate court and as such this question cannot be permitted to be taken by the appellant In the second appeal. He has further urged that in view of the decision of this court in Ramesh Chand Bose Vs. Gopeshwar Pd. Sharma, AIR 1977 All 38 and Budh Sen Vs. Sheel Chandra Agarwal and Others, AIR 1978 All 88 since admittedly all the heirs of Kundan have not been made parties to the suit, for ejectment the suit could not be decreed.

6. In order to appreciate the respective contentions of the parties it is necessary to enumerate a few facts which are relevant for determining the present controversy.

7. Admittedly Kundan was the tenant of the property in dispute. Kundan died. Thereafter as has been found by the trial court only Smt. Budhiya, widow of Kundan and Hari Ram son of Kundan resided in the property in dispute. A statement was made on behalf of the respondents under Order X, Rule 2 C, P. C. to the following effect;

"It is pointed out that the application u/s 7-C of the U. P. Act 3 of 1947 of the defendant was allowed and that then rent in respect of the accommodation in dispute was deposited by the defendants alone admitting themselves as tenants."

8. Hari Ram respondent No. 2 appeared as D. W. 1. In the cross-examination he categorically stated as follows:--

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