JUDGMENT Deoki Nandan, J. - This is a plaintiffs second Appeal in a suit for ejectment and recovery of arrears of rent amounting to Rs. 92/-, Bhumi Bhawan Kar amounting to Rs. 81/-, damages for use and occupation amounting to Rs. 94/-, and Rs. 15/- as cost of notice, together with pendente lite and future damages at the rate of Rs. 2/- per day. The accommodation in suit is described as Block No. 19 in the central Kothi of property No. 69 (old), Mahatma Gandhi Road, Agra. It was alleged that the defendant was a tenant on payment of Rs. 60/- per month as rent, and the plaintiff being in need of the accommodation, she applied for and was granted permission under S. 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, for filing a suit for the defendants ejectment, by an order dated the 1st June, 1968, of the Rent Control and Eviction Officer, Agra, which had become final on the dismissal of the revision against it, by the Commissioner, Agra, and the State Government. Four months' time was allowed to the defendant to vacate the accommodation by the State Government's final order dated the 25th Nov., 1969, which had expired before the suit was instituted. A notice under S. 106 of the Transfer of Property Act dated the 12th April, 1969 was also served personally on the defendant on the 16th April, 1969, terminating her tenancy, but she did not vacate the accommodation, hence the suit. In the first para of her written statement, the defendant pleaded that paragraph of the plaint, as stated is not admitted "excepting that this defendant occupies the accommodation in dispute as tenant on behalf of the plaintiff at an agreed monthly rent of Rs. 60/- only plus electricity charges." But by an amendment of the written statement, it was pleaded in paragraphs 1-A, 1-B and 1-C that Sri D.B. Sabarwal originally came in as a tenant in the year 1960, and, on his death in July, 1961, the tenancy devolved on his legal heirs as co-tenants who were, besides the defendant Smt. Swaroj Rani, his widow, (1) Smt. Durga Devi his mother, (2) Sudhir Chandra and (3) Sri Ravi Kumar his sons, and (4) Smt. Narendra Mohni, (5) Km. Rajni Bala, (6) Km. Shakti Bala and (7) Km. Rajni Bala, (6) Km. Shakti Bala and (7) Km. Shushma, his daughters; and the suit was bad for non-joinder of the said heirs of the deceased tenant Sri D. B. Sabarwal. It was further pleaded in para 10A, that the tenancy of the said heirs had also not been terminated by any valid notice, and the notice in suit was bad "as a matter of fact and in law". The permission was alleged to have been obtained' by fraud and misrepresentation, inasmuch as, it was said that the plaintiff had no need of the accommodation. It was added by amendment of the written statement that the permission had been obtained by misrepresentation amounting to fraud by asserting that the property was purchased by Dr. K. N. Gour and belonged to him; that the property was dilapidated and needed to be demolished. The permission was also alleged to be unauthorised and illegal on certain grounds raised by amendments of the written statement. But it is material to notice that, it was not alleged by anything said in the written statement that the permission was invalid or that a proper suit for the ejectment of the tenant of the accommodation could not be instituted on its basis, inasmuch as it was not obtained against the tenant, or in other words, the entire body of the co-heirs of Sri D. B. Sabarwal, who was originally the tenant of the accommodation, and from whom the tenancy was inherited by the defendant along with the other co-heirs. I say so because the only grounds, on which the suit for ejectment has been dismissed by the lower appellate Court, are that the notice under S. 106 of the T. P. Act was invalid for not having been served on all the co-heirs of the late Sri D. B. Sabarwal who constituted the entire body of tenants after his death, and that the suit was bad for nonjoinder of the co-heirs of the defendant who were her co-tenants and were, therefore, necessary parties. The decree for recovery of Rs. 186/- as rent and Rs. 81/- as Bhumi Bhawan Kar total Rs. 267/- was, however, passed by the lower appellate Court against the defendant in spite of the non-joinder of her co-heirs or co-tenants. 2. The decree for recovery of Rs. 186/- as rent and Rs. 81/- as Bhumi Bhawan Kar total Rs. 267/- was, however, passed by the lower appellate Court against the defendant in spite of the non-joinder of her co-heirs or co-tenants. 2. The trial Court held on issue No. 1, that the permission was not illegal, ultra vires or without jurisdiction; on issue No. 2, that the suit was not barred by O. 2, R. 4 of the Civil P. C. on issue No. 3, that the notice to quit was legally valid; on issues Nos. 5 and 6, that the heirs of late Sri Sabarwal, other than the defendant, were not necessary parties to the suit, and that the suit was not bad for non-joinder of necessary parties, on issue No. 7, that since the permission was not irregular or illegal, it could not be challenged before that Court; and holding on issue No. 4, that the plaintiff was entitled to the reliefs claimed, it decreed the suit for ejectment, recovery of Rs. 282/- up to the date of the suit with pendente lite and future interest at 6 per cent per annum, and pendente lite future damages at Rs. 2/- per day up to the date of delivery of possession, and costs. 3. The lower appellate Court considered seriatim the points raised before it on behalf of the defendant. It first negatived the contention that the defendant was not permitted to fully cross-examine Lakhan Lal (PW 1), and that the suit was not tried properly. The next contention that the permission was invalid for having been obtained by fraud or misrepresentation or on the ground that the comparative need of the parties had not been judged, or that the Rent Control and Eviction Officer could not have reviewed his earlier order was also negatived by the lower appellate Court. The permission appeal's to have been challenged before it also on the ground that it was not obtained against all the co-heirs of late Sri Sabarwal, but was, obtained only against the defendant. The permission appeal's to have been challenged before it also on the ground that it was not obtained against all the co-heirs of late Sri Sabarwal, but was, obtained only against the defendant. The lower appellate Court reserved that point for consideration while considering the question about the validity of the notice to quit and the maintainability of the suit on the same ground, but before doing so, it negatived the further point raised on behalf of the defendant that the property in suit was not identifiable by holding that the description of the property given in the plaint was sufficient to identify it. 4. The lower appellate Court then held that it "cannot be disputed that monthly tenancy is also heritable" and, after referring to the case of Asha Devi v. Bharto, 1959 All L J 824; that "tenant includes his heirs also if they continue in possession after the death of the tenant". It then referred to the principles laid down in Shafiqa v. M. A. Khan, 1969 All L J 1116; that "such tenancy is heritable" and proceeded to hold; "therefore, under law on the death of Sri D. B. Sabarwal his heirs became tenants of the premises in suit." This is followed by a reference to the replication, wherein it was contended that a monthly tenancy is not heritable and being a creature of contract it could not be fastened upon an unwilling landlord. The lower appellate Court negatived the same and observed that "the matter would have been different if a separate agreement with the appellant had been pleaded or proved to show that after the death of Sri D. B. Sabarwal the appellant became tenant" which, according to the lower appellate Court, was "not the case here". About the averments in para 1-A of the replication that after the death of Sri D. B. Sabarwal, the defendant alone became the plaintiffs tenant, the lower appellate Court observed that no separate oral agreement with the defendant was pleaded and Lakhan Lal (PW 1) has stated that on the death of Sri D. B. Sabarwal, the defendant became tenant on a monthly rent of Rs. 60/-, but even there it was not alleged that there was any agreement between the plaintiff and the defendant to that effect; and that the plaintiff did not appear in the witness-box. 60/-, but even there it was not alleged that there was any agreement between the plaintiff and the defendant to that effect; and that the plaintiff did not appear in the witness-box. On being cross-examined, Lakhan Lal (PW 1) said that he did not remember whether any agreement of tenancy between the plaintiff and the defendant had taken place in his presence, and then that he had come in service in 1963, from which the lower appellate Court concluded that no talks of tenancy between the plaintiff and the defendant could have taken place in his presence. On the other hand, the lower appellate Court observed : "Sworaj Rani (DW 1) has clearly stated that no contract of tenancy had taken place between her and the plaintiff'. According to the lower appellate Court." Thus it is clear that after the death of Sri D. B. Sabarwal there was no separate contract of tenancy between the parties. Thus it is also clear that devolution of the interest of tenancy by operation of law was not disturbed by any agreement between the parties. Therefore, I am of the opinion that all the heirs of Sri D. B. Sabarwal became tenants under law". 5. Having arrived at this finding, the lower appellate Court held that the notice under S. 106 of the T. P. Act was bad in law as it was not given to all the co-heirs who were co-tenants and not joint tenants. 6. An argument appears to have been raised before the lower appellate Court that the defendant alone had been paying rent, sending money orders, and representing herself alone as the tenant, and she was, as such, estopped from raising the plea that she alone was not the tenant. The lower appellate Court negatived this plea by observing that it was not raised in the replication, nor was any issue raised on this point, and the plea being a plea of fact it should have been specifically raised in the pleadings; and, at any rate, there should have been an issue on the point; and in the absence of either, it could not be considered at the appellate stage. It further observed that since all the co-heirs became tenants by operation of law, there could be no estoppel, for there could not be estoppel against law. It further observed that since all the co-heirs became tenants by operation of law, there could be no estoppel, for there could not be estoppel against law. This is followed by the finding, without any further reasons being given by the lower appellate Court, that the suit filed against one of the tenants only is bad for non-joinder of necessary parties; but, on the question about the validity of permission on the ground that it was not obtained against all the co-heirs, the lower appellate Court refrained from considering the point on the ground that it had not been raised in the defendant's written statement even after amendment of the same. 6A. A sea-change of no mean dimensions overtook the law determinative of the points involved in this Second Appeal when the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal; AIR 1979 SC 1745 , declared that in order to get a decree or order for eviction of a tenant under any of the State Rent Control Acts in India, it is unnecessary to determine the tenancy by a notice under S. 106 of the T. P. Act, and that making out a case for eviction of the tenant under the Rent Act itself was sufficient. Disapproving a number of its earlier decisions wherein compliance with the requirements of the T. P. Act for determination of a tenancy had been insisted upon before a tenant could be evicted, the Supreme Court observed (at p. 1753); "Why this dual requirement? Even if the lease is determined by a forfeiture under the T. P. Act the tenant continues to be a tenant, that is to say, there is no forfeiture in the eye of law. The tenant becomes liable to be evicted and forfeiture comes into play only if he has incurred the liability to be evicted under the State Rent Act, not otherwise. In many State Statutes different provisions have been made as to the grounds on which a tenant can be evicted and in relation to his incurring the liability to be so evicted. Some provisions overlap those of the T. P. Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. Some provisions overlap those of the T. P. Act. Some are new which are mostly in favour of the tenants but some are in favour of the landlord also. That being so the dictum of this Court in Brij Raj case ( AIR 1951 SC 115 ) comes into play and one has to look to the provisions of law contained in the four corners of any State Rent Act to find out whether a tenant can be evicted or not. The theory of double protection or additional protection, it seems to us, has been stretched too far and without a proper and due consideration of all its ramifications". 7. The basis, on which the judgment of the lower appellate Court for refusing the relief of eviction to the plaintiff is founded, therefore, disappears. As to the effect of non-joinder of the other co-heirs of the late Sri D. B. Sabarwal, he has been found to have been the original tenant, and from whom the tenancy is said to have been inherited by the defendant, not alone, but as a co-tenant along with the other heirs. The suit, which has been brought against the defendant alone, could be dismissed only if relief could not be granted against herself alone. So far as the recovery of rent and Bhumi Bhawan Kar is concerned, even the lower appellate Court did not find any difficulty in decreeing the same against the defendant alone although she is, on the findings recorded by it, only one among the several co-tenants and could not, on that basis, be held liable to pay all the rent herself alone. According to the finding of the lower appellate Court, she had only a fractional share in the tenancy as one of the co-tenants and the tenancy having been held not to be a joint-tenancy, but a cotenancy, her rights and corresponding liabilities in the tenancy were distinct and separate from the other co-tenants. 8. The basic point, which emerges in view of the law declared by the Supreme Court in Dhanapal's case, ( AIR 1979 SC 1745 ) (supra), is that the rights and liabilities of the parties are determinable only under the provisions of U. P. Act No. Ill of 1947 and the tenant' did not enjoy any more protection from ejectment than that prescribed by the provisions of that Act. 9. 9. "Tenant" means, according to the definition contained in cl. (g) of S. 2 of U. P. Act No. Ill of 1947, "the person by whom rent is, or but for a contract express or implied would be, payable for any accommodation." The lower appellate Court has, in spite of all the discussion in the findings recorded by it about the coheirs of Sri D. B. Sabarwal being the co-tenants of the accommodation in suit, decreed the suit for recovery of the rent in full against the defendant alone. Surely, the lower appellate Court did not and could not have done so unless the entire rent was payable by her alone. It stands to reason that under the definition of a tenant quoted above, she must be taken to be the tenant, for the lower appellate Court has found that the entire rent is payable by her. The findings arrived at by the lower appellate Court about the heritability of the tenancy have all been arrived at in the light of the law as interpreted before the epoch making declaration of the law by the Supreme Court in Dhanpal's case (supra). Even so, it is noticable that none of the cases referred to by the lower appellate Court or by the learned counsel at the Bar of this Court go to the extent of holding that under U. P. Act No. Ill of 1947 all the heirs of a deceased tenant become the tenants automatically without any thing more, and even if they are not in possession of the accommodation at the death of the tenant. In Asha Devi v. Bharto, 1959 All L J 824; which is one of the cases relied upon by the lower appellate Court, it was held on an interpretation of the definition of a tenant under U. P. Act No. Ill of 1947 that "a tenant includes his heirs also if they continue in possession after the death of the tenant". Reason given was that under that Act, it is the possession which has been recognized, not agreement between the parties, for creating the liability for payment of rent and the creation of the relationship of landlord and tenant. This case was referred to in L. Prem Prakash v. Rent Control and Eviction Officer; 1967 All LJ 985; but not overruled. Reason given was that under that Act, it is the possession which has been recognized, not agreement between the parties, for creating the liability for payment of rent and the creation of the relationship of landlord and tenant. This case was referred to in L. Prem Prakash v. Rent Control and Eviction Officer; 1967 All LJ 985; but not overruled. The ultimate decision of the Division Bench in this case was; "To sum up, it is not correct to say that no allottee, on his death, leaves behind a heritable interest. It is also not correct to say that every allottee on his death, leaves behind a heritable interest. The question then is; when does an allottee leave behind a heritable interest on his death? Broadly speaking, our answer is when there is a subsisting contract of tenancy between him and the landlord at the time of his death. Such contract may be express or implied. Its formation and subsistence at death are questions of fact to be decided on the facts of each case. An implied contract may be spelt out from the conduct of the landlord and the allottee and other circumstances. For instance, where the landlord accepts rent from the allottee without any protest, or where the District magistrate allots the accommodation to his nominee under R. 4 or to the person suggested by him under Rr. 7 and 8, there should arise a contract of tenancy. These instances should not be supposed to be exhaustive; an implied contract of tenancy may arise in many other circumstances. If the tenancy arising out of an express'or implied contract has, however been determined for one reason or the other before the death of the allottee, he will not leave behind a heritable interest." 10. This decision shows that only a contractual tenancy is heritable. If the tenancy arising out of an express'or implied contract has, however been determined for one reason or the other before the death of the allottee, he will not leave behind a heritable interest." 10. This decision shows that only a contractual tenancy is heritable. The decision of a Division Bench of this Court in Budh Sen v. Sheel Chandra; AIR 1978 All 88 ; was cited before me on behalf of the respondent for the proposition that tenancy of an accommodation governed by U. P. Act No. Ill of 1947 was heritable; and that in a case like the present one where the heirs inherited the tenancy as co-tenants and not as a joint tenants, the suit for eviction must fail if notices are not served on all the heirs of the original tenant or all of them are not made defendants to the suit. This was undoubtedly the position of law before the declaration of what must now be regarded the true legal position by the Supreme Court in Dhanapal's case ( AIR 1979 SC 1745 ) (supra). 11. In the light of the cases discussed above, the true position under the U. P. Act No. Ill of 1947 appears to have been that a tenant must be a person in possession of the accommodation, for, unless he was in possession of the accommodation, rent could not be said to be payable by him unless the case was of a tenancy created by contract where a person could become liable to pay the rent of an accommodation even if he was himself not in possession thereof. 12. It has not been suggested that any of the heirs of the deceased husband of the defendant had ever entered into any contract of tenancy with the plaintiff, nor is it alleged or proved that the tenancy of Sri D. B. Sabarwal was contractual. All that has been alleged by the amendment in the written statement is that he came as a tenant in the year 1960. However, the more important aspect of the case lies in the fact that on the death of Sri D. B. Sabarwal in July, 1961, only his mother Smt. Durga Devi and his widow, who is the defendant-respondent, were adults; the sons and daughters of Sri D. B. Sabarwal being all minors. However, the more important aspect of the case lies in the fact that on the death of Sri D. B. Sabarwal in July, 1961, only his mother Smt. Durga Devi and his widow, who is the defendant-respondent, were adults; the sons and daughters of Sri D. B. Sabarwal being all minors. From the conduct of the defendant, it is apparent that, on the death of Sri D. B. Sabarwal in July, 1961, she alone took possession of the accommodation in the tenancy of her late husband and became, by reason of her possession, liable to pay the rent therefor, that is to say the person by whom rent was payable. Thus, the defendant alone became the tenant within the meaning of the definition of S. 2 (g) of U. P. Act No. Ill of 1947. This inference is borne out and supported by the fact that the defendant-respondent alone deposited the rent under S. 7-C as the tenant and she alone contested the proceedings under section 3, of U. P. Act No. Ill of 1947 for permission to file the present suit; and even admitted in the present suit in paragraph of the written statement that she alone was the tenant of the accommodation on behalf of the plaintiff at an agreed monthly rent of Rs. 60/- plus electricity charges. Even the lower appellate Court found her alone liable to pay the entire amount of rent which could mean that she alone was the tenant. 13. The most crucial aspect of the case, however, lies in the fact that in the proceedings for permission to file the suit under S. 3 of U. P. Act No. Ill of 1947, which were taken by the plaintiff-appellant against the defendant-respondent alone, no objection was taken at any stage that the application was not maintainable on the ground that permission had not been sought against the entire body of the co-heirs who were the co-tenants. If the suit for eviction was not maintainable against the defendant-respondent alone on the ground that she did not constitute the entire body of the co-tenants, she could justifiably plead before the Rent Control Authorities that grant of permission against her alone would be futile, for no suit could be filed against the other co-tenants without permission, and since they had not been impleaded as opposite-parties to the application under S. 3 of U. P. Act No. Ill of 1947 no permission could be granted against them. The objection if taken at the proper stage would have been fatal, if the other heirs of Sri D. B. Sabarwal were also the co-tenants along with the defendant-respondent. My attention was drawn to a judgment of Hon'ble S. J. Hyder, J. in Suresh Chand Sinha v. Jwala Devi, 1980 All W C 497 : (1980 All L J 880), wherein it was observed that a permission granted against some of the co-heirs could validly support a suit for eviction of all the co-tenants although one of them was not made a party to the proceedings for permission under S. 2 of U. P. Act No. Ill of 1947. It is undoubtedly true that a permission granted against a tenant could validly be used to support the suit filed against the heirs of the tenant if he died after the permission was obtained but before the suit could be filed. It is also true that the permission granted to one or more out of the body of co-owners who were the landlords could be availed of by filing a suit by all of them, but the principles on which these conclusions have been arrived at did not apply to the case where permission has not been obtained against any one of the co-tenants. If all the co-tenants are necessary parties to the suit, the permission must also be obtained against all of them and if that be so, it is essential that all of them must be made opposite parties to the application for permission. With respect I do not agree with the aforesaid opinion expressed by Hon'ble S. J. Hyder in Suresh Chand Singh v. Jwala Devi, but I am told that the judgment has been recalled on a review application made before him. However, the point does not directly arise in the present case. With respect I do not agree with the aforesaid opinion expressed by Hon'ble S. J. Hyder in Suresh Chand Singh v. Jwala Devi, but I am told that the judgment has been recalled on a review application made before him. However, the point does not directly arise in the present case. Suffice it to observe that the only protection available to a tenant against eviction from an accommodation governed by U. P. Act No. Ill of 1947 was that contained in S. 3. That protection disappeared with the grant of the permission. The accommodation being governed by the provisions of U. P. Act No. Ill of 1947, the provisions of the T. P. Act did not apply. The person against whom the permission was granted, namely, the defendant-respondent could not resist eviction on the suit filed on its basis under S. 3 of U. P. Act No. Ill of 1947. As observed above, the permission has been held to be valid. Those, who were not parties to the suit, never came forward to' P resist the suit. The defendant-respondent could not, in this situation, resist her eviction. It has already been observed that even according to the decree passed by the lower appellate Court, she has been made liable to pay the entire rent. 14. In the result, the appeal is allowed with costs. The judgment and decree of the P lower appellate Court are set aside. Instead, the decree of the trial Court is restored with costs throughout.