JUDGMENT D.S. Bajpai, J. - This is a defendant's second appeal against the judgment and decree dated 3.9.81 passed by the II Additional District Judge, Sitapur in Civil Appeal No. 177 of 1930 by which he affirmed the judgment and decree dated 5.8.80 passed by the II Additional Munsif, Sitapur in Regular Suit No. 117 of 1977 decreeing the plaintiff's suit declaring him to be the owner of the disputed house no. 338/578, situated in Mohalla Gadiyana Alamnagar. Sitapur and further directing eviction of the defendantappellant from the said house after granting him two month's time to vacate the1 premises and to hand over the possession of the said premises to the plaintiff failing which the plaintiff was entitled to get a decree for eviction executed through the process of the court. 2. Facts giving rise to this appeal briefly were that the plaintiffrespondent, Chhotey Lal, filed suit no. 117 of 1977 in the trial court for declaration that he was the owner of the house in dispute, for recovery of Rs. 165 as arrears of rent and damages and for ejectment of the defendantappellant from the said house. The undisputed facts were that the house in suit originally belonged to Mohd. Hafiz, Mohd. Nazir, Ali Mohammad, Mohd. Sayeed and Mohd. Shahir sons of one Abdul Karim, residents of village Umaria, Pargana Mahmudabad, Tahsil Sidhauli, district Sitapur, and they sold the house to Sidh Sarju Prasad son of Nand Ram, Hardwari son of Ajodhia Prasad and Nijai son of Mooley. Out of the three vendees, Sidh Sarju Prasad died heirless. Hardwari sold the house in dispute claiming to be sole owner of the house.to the plaintiffrespondent, Chhotey Lal, on 3.6.75. Chhotey Lal filed the suit on the allegation that Nijai mentioned as a vendee in the saledeed executed by Mohd. Hafiz and his brothers was only a benamidar and, therefore, after the death of Sidh Sarju Prasad, Hardwari alone was the sole owner of the house in dispute and he having sold the house to the plaintiffrespondent on. 3.6.75 he became the owner of the same. It was alleged that the defendant appellant was only a tenant in the house on a monthly rent of Rs. 15 and he not having paid rent from 3.5.75 to 3.5.76 the amount of arrears came to Rs. 3.6.75 he became the owner of the same. It was alleged that the defendant appellant was only a tenant in the house on a monthly rent of Rs. 15 and he not having paid rent from 3.5.75 to 3.5.76 the amount of arrears came to Rs. 165 and the plaintiff having served a combined notice of demand and termination of tenancy on the defendant on 22.10.75 which was served on him and he not having complied with the terms of the notice was under obligation to pay damages for use and occupation at the same rate from 4.5.75 onwards. In the written statement the defendant denied the title of the plaintiff to the house in dispute and stated that since he was living in the house since the time of his father for well over 40 years and, in fact, he having purchased the houses from Mohd. Hafiz and having paid the entire sale consideration and the saledeed having been executed benami in the name of Sidh Sarju Prasad and others, the defendant himself was the owner of the house and no right or title had accrued in the plaintiff. Alternatively, he pleaded that he had matured his rights over the house by adverse possession. After framing the issues, the trial court accepted the plaintcase and the defendant's case did not find favour with it. It was held that the rent of the house was only Rs. 5 per month and it, therefore, decreed the suit declaring the plaintiff to be the owner of the house and directing the defendant to pay Rs. 55 as arrears of rent at the rate of Rs. 5 per month and also damages for use and occupation at the same rate. The defendant went up in appeal and the lower appellate court affirmed the judgment and decree of the trial court and dismissed the appeal with costs. 3. Aggrieved by the judgment of the courts below, the defendantappellant has come up in second appeal before this Court. 4. I have heard the learned counsel for the parties and perused the record. 5. 3. Aggrieved by the judgment of the courts below, the defendantappellant has come up in second appeal before this Court. 4. I have heard the learned counsel for the parties and perused the record. 5. The two points on which this appeal has been admitted are to the effect as to whether the defendant who along with his brother formed joint tenancy could be evicted from the house in suit without termination; of his brother's tenancy and even without impleading him as party and, secondly, whether the courts below could decree the suit in the absence of the heirs of Nijai. The learned counsel for the appellant contended that in view of the provisions of Article 296 of the Constitution which is as under: '296. Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as Bona vacant/a for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union. Provided that any property which at the date when it would have so accrued to His Majesty or to the Ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or of a State, vest in the Union of in that State. Explanation In this article, the expression Ruler and Indian State have the same meanings as in article 363. the property vested by escheat in the State and as such there was no question about the suit having been decreed in favour of the plaintiff. The learned counsel relied on a case of this Court reported in AIR 1978 Allahabad 88 (Budh Sen v. Sheet Chandra Agarwal) in which it has been held that the tenancy rights are heritable and devolve on all the heirs of the deceased tenant irrespective of the question as to whether some of them are in occupation of the demised premises or not. It was further held therein that the mere fact that some of the heirs are not in actual occupation of the leased premises would not put an end to the tenancy rights to which they had succeeded as a result of the demise of their predecessorininterest and that on the death of a tenant his heirs succeeded to his right not as joint tenants but as tenants in common. The proposition of law is indisputable but it does not apply to the facts of the case in hand since the ejectment of the defendant has been sought not as a tenant but as a trespasser because the defendant denied his tenancy and set up a title unto himself. The question, therefore, that the suit was bad for nonimpleadment of the defendant's brother is devoid of force and cannot be upheld. 6. The next submission of the learned counsel for the appellant on which he laid great stress was that the suit was bad in the absence of the heirs of Nijai, but this has to be considered in the light of the fact as to whether Nijai was one of the owners of the house in suit or was only a benamidar. The court was required to decide the controversy between the parties and any decision recorded in the suit would not be binding on the State and it is always open to the State to vindicate its rights. The courts below having returned a concurrent finding of fact to the effect that Nijai was only a benamidar, the effect of nonimpleadment of Nijai's heirs would not, in any way, affect the rights of the parties being adjudicated. Even otherwise, even though no case of escheat having been taken before the trial court, the principles underlying Article 296 of the Constitution will apply only if there had been no coowner and Nijai was the only person who owned the property and had expired since the principle is well settled that a coowner has a right to file a suit against a trespasser all by himself. 7. As discussed hereinabove, the substantial questions of law on which the appeal has been admitted do not have any force on a careful examination of the contentions of the learned counsel for the appellant and the pleadings of the parties. 8. 7. As discussed hereinabove, the substantial questions of law on which the appeal has been admitted do not have any force on a careful examination of the contentions of the learned counsel for the appellant and the pleadings of the parties. 8. The appeal is devoid of force and must fail and is dismissed with costs. The judgments and decrees of the courts below are confirmed. (Appeal dismissed)