SEN, J. ( 1 ) THIS is an appeal from an Appellate Decree. It arises out of a suit for declaration of title and injunction, which has been concurrently decreed by the two courts below. The appeal has been preferred by the contesting defendants. ( 2 ) THE property involved is a valuable property, being part of premises No. 16 and part of premises No. 20, Munshipara Lane, Police station Manicktala, District 24-Parganas. Having heard the learned Advocates for the parties we are of the view that this appeal must succeed and the suit must be remanded for rehearing since the two courts below have failed to consider and decide the real issue involved in the suit. We now proceed to give our reasons for taking such a view. ( 3 ) IT is not in dispute that late Motilal Mustafi, the father of the two plaintiffs (respondent Nos. 1 and 2 before us) held two tenancies comprising the suit premises on a monthly rental of Rs. 100/- each under the defendant Nos. 1 and 2 (appellants before us ). There is some dispute between the parties as to the nature of the tenancy but it originated in or about the year 1951. Motilal died on August 1, 1958, leaving behind a widow, Tapati Mustafi (defendant No. 7) and two sons, the plaintiffs, who were them minors. After the death of Motilal his heirs fell into arrears and defendant Nos. 1 and 2 instituted Title Suit No. 371 of 1960 for eviction from that part of premises No. 20, Munshipar lane, which constituted one of the tenancies. This suit was instituted against the present plaintiffs represented by their mother, Tapati, who herself was a party defendant along with two of her husband's brothers. That suit was filed on April 28, 1960. The plaint of that suit (Ext. B) clearly shows that such a suit was instituted under the provisions of the West Bengal Premises Tenancy Act, the tenancy being a premises tenancy and not a thika tenancy. ( 4 ) IN that background and pending the said Title Suit No. 371 of 1960 a fresh lease for 15 years was obtained by Tapati, the mother, from the defendant Nos. 1 and 2 consolidating the properties covered by the two tenancies earlier held by Motilal. This is a registered lease executed between the defendant Nos. ( 4 ) IN that background and pending the said Title Suit No. 371 of 1960 a fresh lease for 15 years was obtained by Tapati, the mother, from the defendant Nos. 1 and 2 consolidating the properties covered by the two tenancies earlier held by Motilal. This is a registered lease executed between the defendant Nos. 1 and 2 and the two witnesses to this deed and Bimalendu Nath Mukherji, the father of Tapati and Pannalal Mustafi, husband's brother of Tapati. This deed in its material part recites:"whereas since after the demise of the said Motilal Mustafi a considerable amount of rents having fallen in default the lessors have filed a suit for ejectment being title suit No. 371 of 1960 in the court of the 2nd. Munsif at Sealdah in respect of the tenanted part of premises No. 20, Munshipara Lane against the lessee for self and as natural guardian of her minor sons as heirs of the said Motilal Mustafi making party defendants his brothers, Pannalal Mustafi and Nandalal Mustafi who were joint in mess and commensal with the said Motilal Mustafi and whereas the lessors contemplating also to start ejectment proceedings in respect of the other tenanted part of the said premises No. 16, Munshipara Lane and whereas the lessee for self and on behalf of her minor sons approached the lessors and proposed a fresh settlement of tenancy in terms hereinafter stared in respect of the portions of the said premises Nos. 16 and 20, Munshipara Lane in her personal capacity after confession of judgment in favour of the lessors in Ejectment Suit referred to hereinbefore and also on acknowledgement of the extinction of the tenancy in respect of the non-suit part of premises No. 16, Munshipara Lane and whereas the lessors at the request and the intervention of the said Pannalal Mustafi and Bimalendu Nath Mukherji, father of the lessee having agreed to the proposed terms and conditions of fresh settlement of tenancy??do hereby grant to the lessee all that part and parcel of premises Nos. 16 and 20, Munshipara Lane, measuring more or less 37 cottahs in area with tin shed, structures, out houses on the northern side of the said premises and marked with letters noted in them as annexed herewith??. " ( 5 ) IT is also not in dispute that after a few years the defendant Nos. 16 and 20, Munshipara Lane, measuring more or less 37 cottahs in area with tin shed, structures, out houses on the northern side of the said premises and marked with letters noted in them as annexed herewith??. " ( 5 ) IT is also not in dispute that after a few years the defendant Nos. 1 and 2 instituted a fresh suit for eviction against Tapati being Title Suit No. 26 of 1967 on the ground that she had wrongfully subjected and or assigned the leasehold property in favour of one prasanta Bose. This suit was disposed of on compromise wherein prasanta was acknowledge3d to be merely a licensee and Tapati undertook to quit, vacate and deliver peaceful possession of the lease-hold premises on expiry of the lease on October 31, 1975. ( 6 ) WHEN the lease was nearing its expiry and the defendant Nos. 1 and 2 served a notice upon Tapati demanding possession of the lease-hold premises on the expiry of the lease, the plaintiffs brought the suit. Being Title Suit No. 55 of 1975, out of which the present second appeal arises. ( 7 ) ACCORDING to the two plaintiffs their father Motilal was a thika tenant in respect of the suit premises on a monthly rental of RS. 200/- and it was he who had raised several structures thereon for running a business in the name and style of Commercial Trading Agency. Motilal, however, died prematurely leaving behind a widow, Tapati and the two minor sons, the plaintiffs, who inherited the tenancies in equal shares. The two plaintiffs attained their majority in the years 1973 and 1974 respectively and after attaining majority they came to learn that defendant Nos. 1 and 2 taking advantage of the helpless position of their mother got a deed of lease executed by her on November 1, 1960, converting the thika tenancy into a premises tenancy and raising the rent from Rs. 200/- to Rs. 300/ -. When such a deed was executed by the plaintiffs' mother she had no independent advice and in doing so she never understood the contents and import of the deed which was very much against the interest both of herself as well as her minor sons, the plaintiffs. 200/- to Rs. 300/ -. When such a deed was executed by the plaintiffs' mother she had no independent advice and in doing so she never understood the contents and import of the deed which was very much against the interest both of herself as well as her minor sons, the plaintiffs. The plaintiffs further pleaded that after attaining majority they further came to learn about the Title suit No. 26 of 1967 brought against their mother and a compromise decree passed therein but such a compromise also was not to the interests of the minor plaintiffs or their mother and when ultimately on April 21, 1975, the plaintiffs came to learn that the defendant Nos. 1 to 6 are going to file an Ejectment Suit they filed the instant suit for declaration of their right, title and interest in the suit premises and the same not being affected either by the lease dated November 1, 1960, nor by the compromise decree passed in the Title Suit No. 26 of 1967 and for permanent in junction retraining the defendants from interfering with the plaintiffs' peaceful possession in the suit property. ( 8 ) THE suit was contested by defendant Nos. 1 and 2. Defendant Nos. 3 to 6 filed a written statement supporting the defendant Nos. 1 and 2. The defendant Nos. 3 to 6 filed a written statement supporting the defendant Nos. 1 and 2. The defendant Nos. 1 and 2 strongly disputed the claim that Motilal was a thika tenant. They claimed on the other hand reciting a long history behind the settlement that what was let out to Motilal was not land but structures along with land appertaining thereto, they further pleaded that the said tenancies in favour of Motilal came to an end after the death of Motilal by surrender and extinguishment when the heirs and legal representatives of Motilal fell into arrears and were unable to rent therefore. In that background a fresh lease was obtained by Motilal's widow being duly advised and assisted by her father and her husband's brothers with whom she was living in joint mess. That was a bona fide lease obtained for the benefit of the parties and was acknowledged further in the compromise recorded in the Title Suit No. 26 of 1967. The present suit, according to the defendant Nos. That was a bona fide lease obtained for the benefit of the parties and was acknowledged further in the compromise recorded in the Title Suit No. 26 of 1967. The present suit, according to the defendant Nos. 1 and 2, was instituted only to frustrate the obligation under the lease and the compromise decree passed in the Title Suit No. 26 of 1967 to deliver possession of the suit property to the defendants by the lessee. ( 9 ) TAPATI Mustafi who was made a party-defendant to this suit did not file any written statement but she gave evidence to support the case of the plaintiffs. ( 10 ) ON the pleadings of the parties, several issues were framed by learned Trial Judge but it appears to us that the most material issue which should have been raised on the pleadings was neither raised nor decided. Upon the pleadings when the two plaintiffs were claming right, title and interested in tenancies inherited from their father, Motilal, and when the defendant Nos. 1 and 2 were taking a positive defence that the said tenancies came to an end by surrender and extinguishment it was necessary for the Court to consider whether the original tenancies of Motilal did really come to an end either by surrender or by extinguishment and whether such surrender or extinguishment is binding upon the plaintiffs. ( 11 ) ON the evidence both oral and documentary led by the parties the learned Judge in the trial court held that the suit as framed is maintainable, that Motilal was a thika tenant, that the lease dated November 1, 1960 (Ext. C) and the compromise decree passed in the Title Suit No. 26 of 1967 are not binding on the plaintiffs since they were not parties thereto, that the lease dated November 1, 1960, was not to the benefit of the minors or the mother since one of the tenancies, namely, the tenancy in respect of part of premises No. 16. Munshipara Lane was not the subject-matter of Title Suit No. 371 of 1960. The learned Trial Judge further held that the plaintiffs inherited the tenancies from their father and, as such, they are entitled to the reliefs claimed. Munshipara Lane was not the subject-matter of Title Suit No. 371 of 1960. The learned Trial Judge further held that the plaintiffs inherited the tenancies from their father and, as such, they are entitled to the reliefs claimed. There was no finding that when Tapati executed the lease, she did so without proper understanding or without proper advice nor did the Trial Judge consider the question whether the earlier tenancies were brought to an end by a decree or surrender when the heirs of Motilal were unable to pay the arrears. ( 12 ) ON an appeal the learned Judge of lower Appellant Court affirmed the findings of the learned Trial Judge. He found Motilal to be a thika tenant in respect of the suit premises and he further held that the minor plaintiffs not being parties to the lease or Title Suit No. 26 of 1967 are not bound by them. He further found that the lease was not to the benefit of the minors because the minors were not parties to the Title Suit No. 371 of 1960 and also because on the terms thereof the nature of the tenancy was changed, rent was enhanced and premises No. 16, Munshipara Lane was included though the same was not the subject of Title Suit No. 371 of 1960. ( 13 ) WE have already indicated that the question as to whether Motilal held thika tenancies or not would arise only if such tenancies are still in subsistence. Upon the pleadings of the parties and the evidence on record, particularly on the recitals made in the lease dated November 1, 1960 (Ext. C) it is quite apparent that a suit for eviction was instituted against all the heirs of Motilal including the plaintiffs for eviction from the tenanted portion of 20, Munshipara Lane. The learned Judge in the Court of Appeal below was proceeding upon an erroneous idea that plaintiffs were not parties to that suit. Ext. C clearly recites that Tapati for self and as the guardian of her minor sons, the plaintiffs, conceded judgment therein. If that was so, then one of the tenancies was terminated by a decree and unless that decree is set aside the present claim of the plaintiffs to that extent cannot be sustained. Ext. C clearly recites that Tapati for self and as the guardian of her minor sons, the plaintiffs, conceded judgment therein. If that was so, then one of the tenancies was terminated by a decree and unless that decree is set aside the present claim of the plaintiffs to that extent cannot be sustained. It was, therefore, very much necessary to consider how said suit ended and whether the plaintiffs can still claim their tenancy rights by inheritance from Motilal after judgment was conceded on their behalf in that suit. Again, the pleadings and the evidence on record clearly indicate that Tapati for self and as the guardian of her minor sons surrendered the tenancy in respect of the other tenancy, namely, part of premises No. 16, Mushipara Lane. It was so surrendered as is the clear admission because she and the minors were not in a position to pay the considerable amount of rent in arrears which had accrued since after the death of Motilal. It was, therefore, necessary for the Court to consider and decide whether and how far the plaintiffs can avoid the surrender and whether such surrender was to the benefit of the minors in the facts and circumstances in which the mother had to make the surrender. It would not be sufficient for the Court to hold that the minors were not parties to the lease dated November 1, 1960, which was obtained after such surrender or that the said lease was not to the benefit of the minors. Since such lease followed only on the extinguishment of the earlier two tenancies either by a decree or by a surrender on behalf of the minors it was necessary for the two courts below to consider how the said tenancies were extinguished and how far such extinction is binding upon the plaintiffs. This material issue not having been raised and/or gone into and decided the decrees as passed by the two courts below though concurrent cannot be sustained as one passed in accordance with law. ( 14 ) WE therefore, set aside the judgments and decrees of two courts below and remand the suit to the trial court retrial in the light of the direction incorporated in this judgment with liberty to amend the pleadings by either of the parties and adducing further evidence by them. Parties are directed to bear their costs in this appeal. Parties are directed to bear their costs in this appeal. Preparation of a formal decree is dispensed with. Let this remand order be communicated to the Court below forthwith along the records. Sanyal, J. : I agree. Case sent back on remand for retrial.