JUDGMENT 1. THIS is an appeal against a judgment of affirmance. The plaintiff respondent instituted the suit on January 21,1973 for recovery of possession of two rooms on the ground floor of premises No. 37a, Cantopher Lane, P.S. Beniapukur, Calcutta, which the defendant appellant hold as a monthly tenant under the plaintiff at a monthly rent of Rs. 20/- according to the English calendar month. The plaintiff's case pleaded in the plaint as amended is that the defendant is a defaulter and the suit premises are reasonably required for himself and his family members detailed in the plaint. It was further stated that- "the plaintiff is in occupation of only one room at 37, Cantopher lane which is insufficient to accommodate his family members. Plaintiff has "got no other accommodation available to the use and occupation of his family member." The tenancy was terminated by registered notice of ejectment dated november 21, 1972 with the expiry of december, 1972 which was however, refused by the defendant. The plaintiff prayed for recovery of possession of the suit premises on eviction of the defendant there from. 2. THE defendant filed a written statement and also an additional written statement to the amendments to the plaint, denying the allegations made therein. It was stated inter alia that the plaintiff was not the sole landlord and the notice of ejectment was invalid and never tendered to him at all. In the additional written statement it was stated, while denying the plaintiff's case of reasonable requirement, that he had sufficient accommodation for himself and his family members. It was further stated : "....that it is not a fact that the plaintiff is in occupation of one and only one room in premises No. 37, cantopher Lane. The defendant categorically denies the same. The premises No. 37, Cantopher Lane is a big house consisting of 9 rooms out of which the plaintiff and his family members are together in occupation of 3 (three) rooms which are sufficient for their occupation. . . . Moreover, there still lies a vacant rooms by the side of that of the defendant's in premises No. 37 Cantopher Lane. " The learned Munsif framed the following issues for trial : 1. Is the suit maintainable? 2. Is there any relationship of landlord and tenant between the parties? 3. Is the notice to quit legal, valid and sufficient ? Moreover, there still lies a vacant rooms by the side of that of the defendant's in premises No. 37 Cantopher Lane. " The learned Munsif framed the following issues for trial : 1. Is the suit maintainable? 2. Is there any relationship of landlord and tenant between the parties? 3. Is the notice to quit legal, valid and sufficient ? Was it duly served ? 4. Is the defendant a defaulter. 5. Does the plaintiff require the suit premises for own occupation and for members of the family ? 6. Is the plaintiff entitled to get a decree for ejectement as prayed for? 7. To what relief if any is the plaintiff entitled ? During trial at the instance of the plaintiff a commission for local inspection was issued and the Commissioner held inspection in respect of the accommodation of the plaintiff at premises no. 37 and 37a, Cantopher Lane. The commissioner examined the accommodation of the two rooms under the occupation of the defendant at 37a, Cantopher Lane and at that time he was requested by the defendant's lawyer to measure certain other rooms of the said [premises which according to the defendant were in the plaintiff's occupation. The Commissioner declined to inspect such rooms as it was not, according to him, within the scope of the Commission and on that the defendant's lawyer left the locale. The Commissioner noted these facts in his report (Ext. 1) and also of the family members for whose accommodation also the suit premises, according to the plaintiff, were necessary. In the report, the Commissioner reported that the accommodation available to the plaintiff was insufficient. 3. THE learned Munsif held that the plaintiff could not establish that he was the sole owner of the land of premises No. 37a, Cantopher Lane. It was however indisputed that his father was the owner thereof and on his death, the land devolved on the plaintiff and other legal heirs of the deceased so that the plaintiff was a co-owner of the land. The decision in Sriram pasricha v. Jagannath, AIR 1976 S.C. 2335 was referred to where it was held that a co-owner is as much owner of the entire property as any sole owner thereof. Further the thika tenancy interest in the land with structures was sold by the thika tenant Hamidan Bibi to the plaintiff and two others on february 29, 1968 (Ext. 5). Further the thika tenancy interest in the land with structures was sold by the thika tenant Hamidan Bibi to the plaintiff and two others on february 29, 1968 (Ext. 5). Thereafter on partition by registered deed dated july 31, 1971 (Ext. 4), the thika tenancy interest with structures was allotted exclusively to the plaintiff. It was accordingly held that the plaintiff was the owner of the premises No. 37a, cantopher Lane where in the suit premises were situated. The lenrned munsif held that there was relationship of landlord and tenant between the parties. The learned Munsif also held that the reasonable requirement of the suit premises by the plaintiff and his family members was established by evidence. The notice to quit was also held to be valid and was duly served. In view of the above findings it was held that the plaintiff was entitled to a decree and the suit was accordingly decreed. 4. THE first appellate court on appeal affirmed the findings of the trial court. The contention of the defendant before the court was that the plaintiff was in occupation of other rooms at premises No. 37, and also of another room at premises No. 37a. The said contention was not accepted as it was held to be an after thought and no evidence in support was produced nor was any suggestion made to the Commissioner. It was held that the plaintiff was as much the absolute owner as a sole owner of the land and the exclusive owner of the structures and was entitled to a decree as his reasonable requirement had been established: As a result the appeal was dismissed. This appeal, as already stated, is against this decision. Mr. Mukherjee, learned Advocate for the appellant submitted that both Courts have overlooked the defendant's case that the plaintiff had other rooms in his possession in the two premises. Such accommodation should have been taken into consideration before passing the decree in view of the mandatory provisions of law. The Commissioner failed to act on the requisition of the defendant to inspect such rooms at the time of inspection, causing not only a miscarriage of justice but also a violation of the provisions of law which under clause (ff) of Section 13, subsection (1) requires that the plaintiff must also establish, that he is in occupation of no other suitable accommodation. This contention have been disputed by Mr. Lahiri appearing for the plaintiff respondent. 5. THE Commission was issued on the plaintiff's application for local inspection of the accommodation of the parties according to the plaint case, The commissioner was; justified in ignoring the defendant's request made to him to inspect other accommodation, as he was not entitled to travel beyond his writ of appointment in terms of the plaintiff's application. If the defendant seriously intended an inspection of other rooms in support of his case he should have moved the Court in proper time for appropriate direction's on the commissioner, No such steps were taken at the appropriate stage and accordingly the defendant cannot be heard to complain about the same at the time of hearing of the suit or at the appellate stage or even before this court. The evidence adduced by the defendant through himself and another witness of his making bare assertions in this respect was not accepted by the subordinate Courts and being findings on fact cannot be interfered, with in this appeal. 6. MR. Mukherjee's formidable contention is that in absence of any issue as to whether the plaintiff is not in possession of any reasonably suitable accommodation and a finding thereon the decree under appeal is not sustainable in law. He referred to the Bench decision of this Court in Provash chandra v. Chandra Mohan, AIR 1978 calcutta 224 wherein the Court observed even when the parties proceeded on the footing that apart from the rented accommodation the plaintiff is not in possession of any reasonably suitable accommodation, as follows :- "although the parties may have proceeded on that basis, it cannot be said that the court can pass a decree without recording a finding as required under the latter part of clause (ff) of Sub-section (1) of section 13 of the West Bengal premises Tenancy Act that the plaintiff is not in possession of any reasonably suitable accommodation, which necessarily means that even apart from the present rented accommodation of the plaintiff he is not in possession of any reasonably suitable accommodation elsewhere. In fact, in the present suit no, issue was framed on this point and the learned Judge has not also recorded any finding on this point. The suit must therefore go back to the trial court for a finding on this point." Mr. In fact, in the present suit no, issue was framed on this point and the learned Judge has not also recorded any finding on this point. The suit must therefore go back to the trial court for a finding on this point." Mr. Mukherjee strongly relied on this decision, contending further that the said requirement being essential to sustain a decree, the onus lay on the plaintiff to prove the same and the defendant had no further obligation to disprove the plaintiff's possible defects in the claim for a decree. Reliance was placed on the decision in jagdish Narain v. Nawab Said Ahmed (1945-46) 50 C.W.N. 477 (P.C.) in which the Judicial Committee observed as follows : - "the plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiff's title which might manifest themselves when the title was disposed. It was sufficient that in the Written statements the defendants denied the plaintiff's title and under this plea they could avail themselves of any defect which such title disclosed. " Under Sub section (1) of Section 13, no court shall pass a decree for recovery of possession in favour of the landlord against the tenant except on one or more of the grounds mentioned in the several clauses to the said subsection. The plaintiff accordingly will be entitled to a decree if only he could establish that he is not in possession of any reasonably suitable accommodation irrespective of, it was contended, any objection on the part of the defendant. In this case, no issue was framed nor the plaintiff established by evidence that he was not in possession of reasonably suitable accommodation. It was accordingly submitted that an issue should be framed on this question and the case be sent back for a trial on evidence as otherwise no decree for recovery of possession is sustainable in law. 7. WE may at this stage refer to the decision in Ferozi Lal Jain v. Man mal AIR, 1970 S.C. 794 where the court passed a decree for recovery of possession on compromise. Under the delhi and Ajmer Rent Control Act 1952 such decree can be passed by any court only if that court is satisfied that one or more of the grounds mentioned in section 13 (1) are established. Under the delhi and Ajmer Rent Control Act 1952 such decree can be passed by any court only if that court is satisfied that one or more of the grounds mentioned in section 13 (1) are established. The supreme Court held that, without such a satisfaction the court is incompetent to pass a decree for possession. In ether words the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds; mentioned in section 13 (1) have been proved. In the case under consideration the Court was never called upon to apply its mind to the question whether alleged sub-letting (which is a ground for eviction) was true or not and there was thus no satisfaction of the "court that sub-letting had taken place as the Court proceeded solely on the basis of the compromise arrived at between the parties. It was held that the decree was a nullity as the court was not competent to pass the impugned, decree which was thus in contravention of the statute. 8. IN Kaushalya Debi v. K.L. bansal, AIR 1970 S.C. 838 , the Court held, following the above decision, that a decree for recovery of possession passed on an award in contravention of section 13 (1) of the Delhi and Ajmer rent Act, 1952 without satisfying that the ground of eviction existed, was a nullity and could not be executed. On the above authorities it is contended that the court must satisfy itself about the existence of conditions requisite for a decree for recovery of possession. This can only be done on basis of the pleadings in the plaint, issues framed on such requisite conditions and evidence adduced thereon by the parties and findings arrived on such issues. When the Court does not apply its mind or arrive at its satisfactions on such issues, the decree if passed for recovery of possession, even if by consent will be one in contravention of the provisions of the statute and hence a nullity. When the Court does not apply its mind or arrive at its satisfactions on such issues, the decree if passed for recovery of possession, even if by consent will be one in contravention of the provisions of the statute and hence a nullity. It will therefore be appropriate for the Court in present case, where no issue has been framed nor finding is recorded on the point of any other reasonably suitable accommodation being available to the plaintiff which is a requisite for a decree for possession, to frame an issue thereon and decide such issue on materials to be adduced by the Court. 9. IN K.K. Chari v. K.M. Seshadri, AIR 1973 S.C. 1311 , the supreme Court considered the above two decisions and observed : "the true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. that existence of one or more of the conditions mentioned in section 10 (of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960) were shown to have existed when the Court made the order satisfaction of the Court which is no doubt a prerequisite for the order of eviction, need not be by the manifestation borne out by a judicial finding if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory ground mentioned in the Act it is open to the Court to act on that admission and make an order for possession without further enquiry. " The Court noted that each case will have to be decided on its own facts to justify an inference that an admission, express or implied, has been made by the tenant about the existence of one or more statutory grounds. 10. IN Nagindas Ramdas v. Dalpatram, AIR 1974 S.C. 471 , the court held that a consent decree is not necessarily a nullity. When there is an admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under the Bombay Rents hotel and Lodging House Rates Control act, 1947 it will be presumed that the court was satisfied about the existence of such statutory ground and decree for eviction apparently based on compromise will be valid. Such material way take the shape of evidence recorded or produced or partly or wholly be in the shape of admission. It will thus be seen, on the authority of the latter decisions, that the court's satisfaction about existence of statutory ground for eviction may be presumed, apart from a consideration of the pleadings and evidence of the caes, also on admission or on materials produced in court. The framing of a specific issue and the findings of the court expressing its satisfaction on the existence of the statutory ground for eviction is not always considered necessary. 11. THE Code of Civil Procedure which provides for procedure in civil courts provided in Order XIV, Rule 1 (3) that each material proposition affirmed by one party and denied by the other shall form the subject matter of a distinct issue and issues are of fact and of law. When a material fact stated in the plaint is denied or is not admitted in the written statement, the Court must frame an issue on fact. When an issue of fact in such situation has not been framed what is the consequence of such omission? Mulla in his Code of civil Procedure observes- "if, though no issue is framed on the fact, the parties adduce evidence on the fact and discuss it before the Court, and the Court decides the point as if there was an issue framed on it, the decision will not be set aside on the ground merely that no issue was framed. The reason is that mere omission to frame an issue is not fatal to the trial of a suit. But if the point denied in the written statement is not tried at all, or if tried, is tried imperfectly so as to cause failure of justice, the case will in appeal be remanded for re-trial after framing the necessary issue. " Reliance was placed on the decision in Rewan v. Jankee (1866), 11 m. I. A. 25 Hiranmoy v. Provat 46 C.W.N. 289 and Mitna v. Syed Fuzl, (1870) 13 M. I. A. 573 in support of the above proposition. " Reliance was placed on the decision in Rewan v. Jankee (1866), 11 m. I. A. 25 Hiranmoy v. Provat 46 C.W.N. 289 and Mitna v. Syed Fuzl, (1870) 13 M. I. A. 573 in support of the above proposition. The Supreme court in Kameswaramma v. Subba rao, AIR 1963 S.C. 884 observed : - "no doubt no issue was framed, and the one which was framed could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in reputation of those of the other side, it cannot be said that absence of an issue was fatal to the case or that there was a mistrial which vitiates the proceedings." The same view was taken in Kunju kesavan v. M. M. Philip, AIR 1964 S.C. 164 where the court observed that the parties went to trial, fully understanding the central fact and absence of an issue accordingly did not leaf to mistrial sufficient to vitiate the decision. 12. IN the context of the authorities, the position is that no trial should be deemed as vitiated even when so issue is framed on a material question on fact or law disputed by the parties if the parties proceed with the trial with full knowledge of the rival case lead evidence in support of their contentions and in refutation of those of the other side and the court considers the same in coming to its decision. In such case there is no question of any prejudice being caused to the other party so as to vitiate the trial, so that objection for absence of an issue will be only a formal one not worth consideration when substantial justice has been rendered between the parties. Since however the satisfaction of the Court about the existence of a fact is a condition precedent for n decree, such fact must find a place in the plaint and there, should be evidence by the plaintiff in support thereof since the burden of proof lies on him unless there is admission in the written statement about the existence of such fact. If however such fact is denied and parties adduce evidence in support of their respective cases, omission to frame of an issue thereon will be immaterial. If however such fact is denied and parties adduce evidence in support of their respective cases, omission to frame of an issue thereon will be immaterial. Each case accordingly will have to be considered on its facts and there cannot be a broad proposition that in ail cases, an issue on the disputed material or essential question of fact or law must have to be framed and decided including cases where the parties have full comprehension on the point in controversy and adduce evidence in respect thereof in support of their case and in refutation of the case of the other party and the court comes to a decision on appreciation of such evidence. 13. IN the case before us, the plaintiff pleaded in para 7 of the plaint that apart from one room at premises no. 37, Cantopher Lane "he has got no other accommodation available to him". The written statement the defendant denied the said fact stating that the plaintiff had sufficient accommodation for himself and his family, further stating that he had in his posscssion three rooms at premises No. 37, cantopher Lane and one room at premises No. 37a, Cantopher Lane. The plaintiff reiterated the position in evidence while the defendant's evidence was what was stated in the written statement. The trial court as also the first appellate Court accepted the plaintiff's evidence in arriving at their respective findings. Thus though no issue as framed, the parties went to trial on full comprehension of the issue involved viz. whether the plaintiff was in possession of any reasonably suitable accommodation, adduced evidence in support of their respective case and in refutation of the case of the other side while the courts arrived at their conclusion on consideration of the pleadings and evidence. In the context of the decisions referred to above, there is no scope for holding that the decree under appeal is not sustainable in law and that remand for adjudication of a relevant issue omitted to be framed by the trial Court is reoessary. The appeal accordingly fails and is dismissed without any order as to costs in the circumstances. Appeal dismissed, no costs spaces in the balconies. In our view.