SANKARI PRASAD DAS GHOSH, J. ( 1 ) - The defendant no. 1 is the appellant in this appeal preferred against the judgment and decree passed by the learned Judge, Sixth Bench, City Civil Court, in Title Suit No. 524 of 1960. ( 2 ) ONE Munshi Syed Hafijuddin was a tenant in respect of two properties at premises no. 157-B, Dharmatala Street, Calcutta, under one Bhupendra Krishna Ghosh from about 1926. There were three sheds, being sheds nos. 6, 7 and 8 on one of these plots, whose rent was Rs. 160/- per month. There were three other sheds, being sheds nos. 9, 10 and 11 in the other plot, measuring about 6 cottahs 9 chittaks, whose rental was Rs. 102/- per month. The defendants Nos. 1, 2, 3 and 4 (the Appellant and the Respondents Nos. 4, 5 and 6) are the heirs of Bhupendra Krishna Ghosh. Hafijuddin died on 2. 10. 47, leaving his wife, Nazirannessa Bibi, one son, Munshi Syed Basiruddin and daughter, Nekjanessa Bibi. Nazirannessa Bibi died in 1949. The landlords, being the appellants and respondents nos. 4, 5 and 6, filed two ejectment sutis, being Ejectment Suits Nos. 1189 of 1958 and 1190 of 1958, against Basiruddin and Nekjanessa for their eviction from the aforesaid two premises at 157-B, Dharmatalla Street on the ground of default in payment of rent on alleging that they were monthly tenants of the two premises at 157-B, Dharmatala Street under them. Both these Ejectment Suits ended in decrees in 1959. There were two appeals, being F. A. 30 of 1960 and 31 of 1960 in this Court against the judgment and decree passed in the two Ejectment Suits. ( 3 ) DURING the pendency of the aforesaid two appeals in this Court, Syed Chand Ali, claiming to be another son of the original tenant Hafijiddin, filed Title Suit being No, 524 of 1960 in the City Civil Court, Calcutta, for declaration that he had undivided 7/20th share in these two properties at 157-B, Dharmatalla Street and a further declaration that the two decrees passed in the two Ejectment Suits Nos. 1189 and 1190 of 1958 were void in law and not binding on him. There was a prayer in the suit for passing a decree of permanent injunction for restraining the defendant 1 to 4 (the appellant and the respondent nos. 1189 and 1190 of 1958 were void in law and not binding on him. There was a prayer in the suit for passing a decree of permanent injunction for restraining the defendant 1 to 4 (the appellant and the respondent nos. 4, 5 and 6) from executing the two ejectment decrees. The case of the plaintiff-respondent no. 1 was that Syed Hafijiddinhad two wives, Nazirannessa and Rahiman Bibi and that he was the son of Hafijiddin by Rahiman Bibi, who died in 1945. It was alleged that as Hafijiddin was governed by Sunni School of Mohamedan Law, his share in the two suit-properties was to the extent of 7/20. It was alleged that Hafijiddin was a thika tenant in respect of the two plots, one of the plots measuring 10 cottahs 6 chittaks at a rental of Rs. 160/- per month and the other plot measuring 6 Cottahs 9 chittaks at a rental of Rs. 120/- per month and that his father constructed the structures over these two plots, which were vacant at the time of being leased out by Bhupendra Krishna Ghosh to his father. It was further alleged that the respondents nos. 2 and 3, Basiruddin and Nekjannessa, caused the defendants nos. 1 to 4 to file the two Ejectment Suits against them for depriving him from his legitimate share in the two suit properties. As he was not made a party in the two Ejectment Suits, the respondent no. 1 prayed for a declaration of his 7/20 share in the two suit-properties and for permanent injunction on declaration that the two Ejectment decrees were not binding on him. ( 4 ) THE defence of the appellant and the respondents nos. 4 to 6 was that Hafijuddin was a monthly tenant and not a thika tenant in respect of the suit-properties and that the respondent no. 1 was not the son of Hafijiddin. The alleged collusion of the respondents nos. 2 and 3 with the appellant and the respondents no. 4 to 6 in filling the two Ejectment Suit for depriving the respondent no. 1 from his share in the suit properties was denied. ( 5 ) THE plaintiff-respondent no. 1 examined four witnesses including himself as P. W. 2 and Nekjannessa (PW 4), who was examined himself as D. W. 1. 4 to 6 in filling the two Ejectment Suit for depriving the respondent no. 1 from his share in the suit properties was denied. ( 5 ) THE plaintiff-respondent no. 1 examined four witnesses including himself as P. W. 2 and Nekjannessa (PW 4), who was examined himself as D. W. 1. On a consideration of the evidences of these witnesses and the materials on record, the learned Judge held that Hafijiddin was a tenant in respect of the premises and was not a tenant in respect of only bare land and that the structures standing on the land had not been constructed by Hafijuddin, who was a tenant in respect of the premises under the provisions of the West Bengal Premises Tenancy Act, 1956. He was, however, pleased to decree the suit on contest with costs on finding that the plaintiff-respondent no. 1 was the son of Hafijuddin by Rahiman Bibi and that Basiruddin could not represent the interest of the plaintiff-respondent no. 1 in respect of the tenanted premises. Being aggrieved by the judgment and decree passed by the learned Judge, the present appeal has been filed. ( 6 ) MR. Mitra, appearing for the appellant, has submitted that the learned Judge was not justified in decreeing the suit without properly considering the question of representation of the tenancy of Hafijuddin by Basiruddin and Nekjannessa, the son and daughter of Hafijuddin by Nazirunnessa. To lend support to his contention that the tenancy of Hafijuddin should be deemed to be properly represented by Basiruddin and Nekjannessa, Mr. Mitra drew to our attention to the case reported in AIR 1966 SC 792 (Md. Sulaiman -vs- Md. Ismail), 23 Calwn 590 (Prafulla Kumar Sen -vs- Nawab Sir Salimulla Bahadur), AIR 1965 SC 1049 (Dayaram -vs- Syamsundari) and AIR 1971 SC 742 (Mahabir Prosad -vs- Jage Ram ). ( 7 ) MR. Dutta, appealing for the plaintiff-respondent no. 1, has submitted that the learned Judge was justified in decreeing the suit on holding that the tenancy of Hafijuddin was not properly represented. To bring home is argument on the point he has referred to the case of Krishnadhone Pramanik -vs- Ram Palat 1980 (1) CLJ 346 and the case of Asha Gupta and Another -vs- Sipra Dutta and Others (80 Calwn 187 ). To bring home is argument on the point he has referred to the case of Krishnadhone Pramanik -vs- Ram Palat 1980 (1) CLJ 346 and the case of Asha Gupta and Another -vs- Sipra Dutta and Others (80 Calwn 187 ). He has also challenged the finding of the learned Judge that Hafijuddin was a monthly tenant and not a thika tenant in respect of the disputed properties. ( 8 ) AFTER carefully considering the evidences on record, we find nothing to interfere with the finding of the learned Judge that Hafijiddin was a monthly tenant in respect of the suit-properties and was governed by the West Bengal Premises Tenancy Act and that Hafijudin was not a thika tenant in respect of those properties. We also find nothing to interfere with the finding of the learned Judge that the plaintiff-respondent no. 1 was another son of Hafijuddin by Rahiman Bibi. The most question involved in this appeal is thus whether the tenancy of Hafijuddin was represented by joinder of only Basiruddin and Nekjannessa as defendants in the two Ejectment Suits Nos. 1189 and 1190 of 1958 brought by the appellant and the respondents nos. 4, 5 and 6 for evicting Basiruddin and Nekjannessa from the suit properties. The cases reported in 1980 (1) CLJ 346 and 80 Calwn 187 do not lend support to the contention that the tenancy of Hafijuddin was not properly represented by joinder of only respondents nos. 2 and 3 in the two Ejectment Suits as party defendants. In the case of Krishna Dhone ( 1980 (1) CLJ 346 ), the plaintiff had filed a suit against a defendant for khas possession. The father of the defendant was the original tenant in respect of the property. He died leaving the defendant and two daughters, Kamala Devi and Ramrati Devi as his heirs and legal representatives to inherit the tenancy of the suit-premises of that suit. The defendant of that suit contended in the trial court that as his two sisters had not been joined as parties in the suit was not maintainable. The trial court dismissed the suit on accepting the plea of non-joinder of parties. This decree of the trial court was upheld by this Court by dismissing the appeal preferred against the decree passed by the trial court. The trial court dismissed the suit on accepting the plea of non-joinder of parties. This decree of the trial court was upheld by this Court by dismissing the appeal preferred against the decree passed by the trial court. In that suit the defendant in his written statement had given out the names of Kamala Devi and Ramrati Devi as his two sisters and had raised a plea that the suit was bad for their non-joinder. No defence was, however, taken by the respondents nos. 2 and 3 in the written statement filed in the two Ejectment Suits Nos. 1189 and 1190 of 1958 that all the heirs of Hafijuddin were not brought on record. This is evident from the judgment delivered by this Court on 4. 4. 62 in F. A. Nos. 30 and 31 of 1960, Ext. B. It is stated in the judgment delivered by this Court in those two appeals that the plea that the heirs of Hafijuddin have not been brought on record was not taken in the written statement. Moreover, the plea that all the heirs of Hafijuddin were not brought on record was taken faintly, as transpiring from the judgment delivered by this court in those two appeals. The fact that the respondents nos. 2 and 3 failed to take any plea in their written statement in the two Ejectment Suits about non-joinder of the plaintiff-respondent no. 1 as one of the heirs of Hafijuddin distinguishes the present suit no. 524 of 1960 from the case of Krishna Dhone ( 1980 (1) CLJ 346 ) in which there is also reference to the case of Asha Gupta (80 C. W. N. 187 ). In fact, if such plea would have been taken by respondent nos. 2 and 3 even before the final hearing of the two appeals, being F. A. Nos. 30 and 31 of 1960, this court would have considered the question of joinder of any other heir of Hafijuddin, as decided by the Supreme Court in the case reported in A. I. R. 1965 S. C. 1049. 2 and 3 even before the final hearing of the two appeals, being F. A. Nos. 30 and 31 of 1960, this court would have considered the question of joinder of any other heir of Hafijuddin, as decided by the Supreme Court in the case reported in A. I. R. 1965 S. C. 1049. It is because of the provisions in Order XLI Rule 4 of the Code of Civil Procedure that it was held by the Supreme Court in the case of Mahabir Prasad vs. Jage Ram (A. I. R. 1971 S. C. 742) that when a party respondent in an appeal dies and one of his legal representatives is already on record in another capacity, the appeal does not abate, even though no application is made to bring them on record. The contention raised by Mr. Dutta that even though the plaintiff-respondent no. 1 was not made a party in the two Ejectment Suits, he ought to have been impleaded as a respondent in the two appeals, being F. A. Nos. 30 and 31 of 1960 cannot be accepted in the absence of anything to show that actually the name of the plaintiff-respondent no. 1 was disclosed by respondents nos. 2 and 3 prior to the final hearing of those two appeals, or that any attempt was made by the respondents nos. 2 and 3, prior to the hearing of those two appeals, for impleading the plaintiff-respondent no. 1 as a party respondent in those two appeals. ( 9 ) THE question of representation of the estate of a person by some of his heirs joined in a suit was considered by the Supreme Court in the case of Mohd. Sulaiman vs. Md. Ismail (A. I. R. 1966 S. C. 792) relied on by the learned Advocate for the appellant. In that case some property was mortgaged by three muslims to one Narsimha Reddy. One of the mortgagors died. Narsimha, on finding that the two mortgagors and three widows and a daughter of another deceased mortgagor were in possession of the mortgaged property, obtained a decree on his mortgage against them and in execution thereof, purchased the property himself with the permission of the Court. It was found that Narsimha had made bonafide enquiry and had not come to know about the existence of any other heir, viz. Md. It was found that Narsimha had made bonafide enquiry and had not come to know about the existence of any other heir, viz. Md. N. K. Sulaiman who subsequently filed a Title Suit in the Court of the Subordinate Judge, Chitore on claiming that he was the son of the deceased mortgagor named Khader Miran. It was held by the Supreme Court that the principle of representation of the estate by the heirs who are joined as parties applied to the case and the decree was binding on persons who claimed to be the sons of the deceased mortgagor and sued for declaration that the mortgage decree was no binding on them. The principle of representation of an estate by some of the heirs was in such circumstances adopted by the Supreme Court in the case of Md. Sulaiman, wherein three exceptions were laid down for not applying this principle of representation. These exceptions are (a) where there has been fraud or collusion between the creditor and the heir or (b) where there are other circumstances which indicate that there has not been a fair or real trial or (c) where the absent heir had a special defence which was not and could not be tried in the earlier proceeding. None of these exceptions apply in the present case. Barring the fact that Hafijuddin was a thika tenant and that the plaintiff was one of the heirs of Hafijuddin, no other case was made out by the plaintiff-respondent no. 1 in the plaint of the Title Suit No. 524 of 1960. This case of thika tenancy was also alleged by the respondents nos. 2 and 3 in this Court in the appeals preferred against the judgment and decree passed in the two Ejectment Suits Nos. 1189 and 1190 of 1958 of this Court and was negatived by this Court, vide Ext. B. The plaintiff-respondent no. 1 has thus no special defence which could not be tried in the earlier Ejectment Suits. When the judgment and decree passed in the two Ejectment Suits were affirmed even by this Court in the two appeals, being F. A. Nos. 30 and 31 of 1960, it cannot be at all stated that there was no fair or real trial in the two Ejectment Suits. When the judgment and decree passed in the two Ejectment Suits were affirmed even by this Court in the two appeals, being F. A. Nos. 30 and 31 of 1960, it cannot be at all stated that there was no fair or real trial in the two Ejectment Suits. As for collusion or fraud alleged in paragraphs 9 and 10 of the plaint of the Title Suit No. 524 of 1960, it is to be stated that there was no iota of evidence that the defendants fraudulently and in collusion with each other got the rent receipts in respect of the two suit properties issued in the joint names of only the respondents nos. 2 and 3. There is also no iota of evidence that the respondents nos. 2 and 3 fraudulently caused the two Ejectment Suits to be filed against them at the instance of the appellant and the respondents nos. 4 to 6 for depriving the plaintiff-respondent no. 1 from his legitimate share in the two suit properties. On the contrary, a scrutiny of evidence of P. W. 4, Nekjannessa tends to show collusion rather of Nekjannessa and Basiruddin in filing the present suit through the plaintiff-respondent no. 1 so that the two Ejectment decrees cannot be executed, as alleged by the appellant and the respondents nos. 4 to 6 in paragraph 18 of the written statement. Question No. 91 put to Nekjannessa was to the effect that after the dismissal of the two appeals by this Court against the decree passed in the two Ejectment Suits, they have falsely set up the plaintiff-respondent no. 1 and were making attempt to defeat the just and lawful claim of the landlords to whom they were indebted to the extent of nearly Rs. 1,000/ -. In answer to this question no. 91, which was in the form of a suggestion, P. W. 4 stated, "i do not know". A scrutiny of the evidence of P. W. 4 shows that P. W. 4 was born in Cuttack, was given in marriage in Cuttack, was joint in mess in Cuttack with Chand Ali, Basiruddin and her husband and that their dispute arose only before 3 years regarding the disputed premises. If that be the fact, it is not understood as to how P. W. 4 examined in June, 1964, could come in the company of the plaintiff-respondent no. If that be the fact, it is not understood as to how P. W. 4 examined in June, 1964, could come in the company of the plaintiff-respondent no. 1 as transpiring in answer to question no. 44 put to her or as to how their dispute could accrue since 1958 with the plaintiff-respondent no. 1, as alleged in paragraph 10 of the plaint of the Title Suit No. 524 of 1960. Considering the evidence on record we have no hesitation to say that far from there being any collusion of the respondents nos. 2 and 3 with the landlords for filing of the Ejectment Suits. There was rather collusion of Basiruddin and Nekjannessa with the plaintiff-respondent no. 1 for filing the present Title Suit No. 524 of 1960. The principles laid down by the Supreme Court in the case of Md. Sulaiman (A. I. R. 1966 S. C. 792) thus apply in the present case and we are to hold that the tenancy of Hafijuddin in the two suit-properties was represented by Basiruddin and Nekjannessa in the two Ejectment Suits, in the absence of any disclosure of the name of plaintiff-respondent no. 1, in the written statement filed by Basiruddin and Nekjannessa in the two Ejectment Suits, as being another heir of Hafijuddin. ( 10 ) THIS principle of representation was also accepted by this Court in the case of Prafulla Kumar Sen (23 Calwn 590) in which there was a decree for arrears of rent of a tenure against all the recorded tenants except one, who acquired title by purchase but who did not get his name registered in the landlord's sherista. It was held in that case that the entire tenure and not merely the interest of the recorded tenants passed by the sale in execution of the decree. There is nothing in the evidence to show or suggest that if it is because of any collusion of the landlords that the names of only Basiruddin and Nekjannessa were recorded as tenants in the landlords' sherista in respect of the disputed properties. On the contrary, the evidences of P. W. 4, examined on commission, if scrutinised, would go to show that they were joint in mess with the plaintiff-respondent no. 1. On the contrary, the evidences of P. W. 4, examined on commission, if scrutinised, would go to show that they were joint in mess with the plaintiff-respondent no. 1. It does not thus stand to reason to say that the landlords colluded with Basiruddin and Nekjannessa for only mutating their names in their sherista in respect of the suit-properties. In these circumstances, in the absence of any collusion or fraud on the part of the landlords in mutating the names of Basiruddin and Nekjannessa in respect of the suit properties, it cannot be at all stated that the tenancy of Hafijiddin was not represented by joinder of only Basiruddin and Nekjannessa in the two Ejectment Suits. One cannot also lose sight of the glaring fact that after the death of Hafijuddin on 2. 10. 47 and Nazirunnessa in 1949, the plaintiff-respondent no. 1 remained silent regarding his right in the suit-properties prior to the filing of the present Title Suit No. 524 of 1960 on 31. 10. 60. ( 11 ) CONSIDERING the aforesaid facts and circumstances and the evidences on record, we are of the opinion that the tenancy of Hafijuddin was properly represented by Basiruddin and Nekjannessa in the two Ejectment Suits Nos. 1189 and 1190 of 1958. ( 12 ) THE appeal is, accordingly, to be allowed. The appeal is allowed on contest against the respondent no. 1 and without contest against the rest. The judgment and decree passed by the learned Judge, Sixth Bench, City Civil Court, Calcutta, in Title Suit No. 524 of 1960 are set aside. The Title Suit No. 524 of 1960 is also dismissed. Parties to bear their own costs of this appeal. The Receiver is discharged. Prayer for stay of operation of this judgment is refused. G. N. Ray, J. : I agree. Appeal allowed.