JUDGMENT S.D. AGANVALA, J. 1. THIS is a petition under Article 226 of the Constitution of India arising out of proceedings under Section 21 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act). 2. THE property in dispute is house No. 196, Bakshi Bazar, Allahabad. Mirazuddin, respondent no. 1, is the landlord of the said premises. One Abdul Ghafoor was a tenant of the said premises. He died on 10th August, 1966, and, thereafter, the tenancy rights vests in his sons and daughters. The landlord filed an application under section 21 of the Act on the,, ground that the property is bona fide required by him for his use and occupation. In this application for release, he impleaded only Abdul Rauf and Farooq, both sons of Abdul Ghafoor, as respondents treating them to be the tenants of the premises after the death of Abdul Ghafoor. In the application under section 21 of the Act, the respondent had set up his personal need. 3. ABDUL Rauf, who is the petitioner no. 1 in the present petition, filed a written statement contesting the allegations made in the application under Section 21 of the Act against him. He further contested the allegations made in regard to the need of the landlord. In paragraph 7 of the written statement, it was specifically averred that after the death of ABDUL Ghafoor, the property devolved on the two petitioners, ABDUL Rashid, who is the youngest son of ABDUL Ghafoor, and Smt. Aisha Begum and Smt. Rabia Begum, who are the daughters of ABDUL Ghafoor. It was further stated that they are necessary parties to the application under section 21 of the Act and since in the application under section 21 of the Act, necessary parties have not been impleaded, the application is liable to be dismissed. 4. BEFORE the Prescribed Authority, the question whether Abdul Rashid was a necessary party or not was specifically raised. The Prescribed Authority considered this question and held that since after the death of Abdul Ghafoor, the property also devolved upon Abdul Rashid, it was necessary that Abdul Rashid should have been made a party to the release application and, in his absence, the release application was not maintainable. The Prescribed Authority considered this question and held that since after the death of Abdul Ghafoor, the property also devolved upon Abdul Rashid, it was necessary that Abdul Rashid should have been made a party to the release application and, in his absence, the release application was not maintainable. The Prescribed Authority also considered the case on merits and came to the conclusion that the need of the landlord respondent was not genuine. The application was, ultimately, dismissed by the Prescribed Authority by an order dated 5th November, 1981. Aggrieved by the decision of the Prescribed Authority dated 5th November, 1981, Mirazuddin, the landlord, filed a Rent Control Appeal No. 80 of 1981 in the court of the District Judge, Allahabad. This appeal came up for hearing before the 4th Additional District Judge, Allahabad. The 4th Additional District Judge, Allahabad, allowed the appeal by judgment dated 18th August, 1982, and allowed the release application. In this judgment, the first question, which was considered by the appellate court, was whether Abdul Rashid, Smt. Aisha Begum and Smt. Rabia Begum were also the co-tenants along with the petitioners. In the judgment, it has been stated that the petitioners did not press the co-tenancy in regard to Smt. Aisha Begum and Smt. Rabia Begum, but they only pressed in regard to the co-tenancy of Abdul Rashid. The appellate court relying on Section 3 (a) (1) of the Act wherein it has been laid down that on the tenant's death in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death are the heirs for the purpose of this Act, held that Abdul Rashid was not a co tenant alongwith the petitioners in the house in dispute. Aggrieved by the decision of the appellate court dated 18th August, 1982, the petitioners have challenged the same by means of the present petition. 5. I have heard the learned counsel for the parties. 6. LEARNED counsel for the petitioner has contended that Abdul Rashid was a necessary party in the release application, as he was a tenant-in-common after the death of Abdul Ghafoor and since no release application has been filed against Abdul Rashid, the application made by the landlord respondent is not maintainable in law. 6. LEARNED counsel for the petitioner has contended that Abdul Rashid was a necessary party in the release application, as he was a tenant-in-common after the death of Abdul Ghafoor and since no release application has been filed against Abdul Rashid, the application made by the landlord respondent is not maintainable in law. Learned counsel for the petitioners has also challenged the finding recorded by the lower appellate court, that the need of the landlord respondent is genuine and bona fide. He has also challenged the finding recorded by the lower appellate court that greater hardship would be caused to the landlord respondent in case the release application is rejected. Learned counsel has also challenged the finding recorded by the lower appellate court, that Abdul Rashid was normally not residing with Abdul Ghafoor at the time of his death and that Abdul Rashid is not residing in the property in dispute. His submission is that certain material documents have not been considered by the lower appellate court at all before reversing the finding recorded by the Prescribed Authority. 7. IT is not necessary for me to consider the second, third and the fourth submissions made by the learned counsel for the petitioner, as, I am of the opinion, that the petition is likely to succeed on the basis of the first contention raised by the learned counsel for the petitioner. 8. IT is not disputed that Abdul Ghafoor died on 10th August, 1966. The Act came into force on 15th July, 1972. Abdul Ghafoor had died prior to the commencement of the Act. Therefore, the question as to who are the heirs of Abdul Ghafoor has not to be determined on the basis of the provisions of this Act. Section 3 (a) (1) and (2) would apply only to cases where the tenant dies after the commencement of the Act. The question, therefore, whether a particular heir normally resided with the tenant in a building or not is wholly irrelevant to determine the right of an heir in case of a death having taken place earlier than 15 the July, 1972. The lower appellate court while considering the question as to whether Abdul Rashid was a necessary party or not has applied Section 3 (a) (1) of the Act, which, in fact, does not apply to the facts of the present case. The lower appellate court while considering the question as to whether Abdul Rashid was a necessary party or not has applied Section 3 (a) (1) of the Act, which, in fact, does not apply to the facts of the present case. The lower appellate court has, consequently, erred in going into the question as to whether Abdul Rashid normally resides with Abdul Ghafoor at the time of his death. The entire approach of the lower appellate court is erroneous in law. In Budh Sen v. Sheel Chandra Agarwal, 1977 AWC 553 a Division Bench of this Court has considered the question as to who are the heirs of a deceased tenant in great detail. It has been held in this case that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the demised premises or not. It has been further held that the mere fact that some of the heirs are not in actual occupation of the leased premises cannot operate to put an end to tenancy rights to which they have succeeded as a result of the demise of their predecessor-in-interest. On the death of a tenant, his heirs succeed to his rights not as joint tenants, but as tenants in common. 9. IN the case of Budh Sen v. Sheel Chandra Agarwal (Supra), the Bench further considered the basic distinction between ' joint tenants ' and ' tenants in common ' and it was held that in the case of joint tenant, there is unity of title and possession while in the case of tenants in common, there is unity of possession, but there is no unity of title. It further held that a notice served under Sec. 106 of the Transfer of Property Act only on one of the joint tenants is effective to terminate the tenancy of all the joint tenants, but this would not follow if the notice is served only on one of the tenants in common, since there is no unity of title between them. 10. ABDUL Rashid is the son of ABDUL Ghafoor. ABDUL Ghafoor, admittedly, died on 10th August, 1966. The tenancy was heritable and, as such, on the death of ABDUL Ghafoor, ABDUL Rashid inherited the tenancy rights and became one of the tenants in common with his other brothers. 10. ABDUL Rashid is the son of ABDUL Ghafoor. ABDUL Ghafoor, admittedly, died on 10th August, 1966. The tenancy was heritable and, as such, on the death of ABDUL Ghafoor, ABDUL Rashid inherited the tenancy rights and became one of the tenants in common with his other brothers. He, consequently, had full tenancy rights in the property in dispute. In the case of tenants in common where there is no demarcation of the actual occupation of a particular part of the property by any one tenant in common, in my opinion, an application under section 21 of the Act cannot possibly be maintainable unless the release is filed against all the tenants in common. There is no dispute that after the death of ABDUL Ghafoor, his heirs are jointly living in the premises in dispute. There is no specific demarcation among them. In view of these circumstances, the Prescribed Authority was right in holding that the application under Section 21 of the Act is not maintainable in absence of ABDUL Rashid and that ABDUL Rashid was a necessary party to the release application. Learned counsel for the respondent, however, has vehemently urged that in view of the Explanation to Section 21 (1) of the Act, even if Abdul Rashid is not a party to the release application, the release application cannot be dismissed. The Explanation is quoted below: "Explanation.- In the case of a residential building. (1) Where the tenant or any member of his family who has been normally residing with or is wholly dependent on him has built or has otherwise acquired in a vacant state or has got vacated after acquisition, a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained:- 11. THE above Explanation provides that where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition, a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. THE above Explanation provides that where the tenant or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition, a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this sub-section shall be entertained. THE argument of the learned counsel for the petitioner is that Abdul Rashid has acquired another building in a vacant state in Allahabad and, as such, he could not raise any objection and, therefore, it was not necessary to make him a party. In my opinion, this argument is wholly fallacious. THE question of filing an objection to an application for release can only arise when a particular person is made a party to the said release application. If a tenant is not made a party to a release application, the question of his not being permitted to file an objection does not arise. It is only when a tenant is made a party then he can be debarred from filing an objection and that too when the Prescribed Authority after giving him an opportunity records a finding that the tenant or any member of his family has built or has otherwise acquired in a vacant state a residential building in the same city and not otherwise. No person can be condemned without being heard. THE Explanation would only apply to a case where a tenant is a party to the particular release application and not otherwise. In the circumstances, the argument raised in this connection by the learned counsel for the petitioners, in my opinion, does not have substance. 12. THE other provision on which the learned counsel for the petitioners has relied upon is Section 23, which is in the following terms:- 131-Rep.-1987 "23 (1). THE Prescribed Authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under Section 21 or on appeal under Section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession. THE Prescribed Authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under Section 21 or on appeal under Section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession. (2) Every order of the Prescribed Authority in proceedings under this section shall be final." Learned counsel for the petitioners has, on the basis of the above section, urged that when the release order is enforced under section 23 of the Act, Abdul Rashid can file an objection urging his rights and the Court can consider the said objection of Abdul Rashid at that stage. Section 23 of the Act gives a right to the Prescribed Authority to enforce a release order against a tenant or against any other person found in actual occupation of the building in dispute. In the case of a tenant against whom no release order has at all been issued, I do not see how the Prescribed Authority has a right to enforce the release order against him. Even if for the sake of arguments, it is taken that a tenant who had not initially been made a party to the release application can object the enforcement of the release order under this sections in my opinion, it cannot be said that the release application would become maintainable merely because a tenant, who has not been made a party, has a right to object the enforcement of the release order at the stage of section 23 of the Act. I do not agree with the submission made by the learned counsel for the petitioners in this regard also. 13. SINCE I have held that the application for release made by the landlord respondent was not maintainable since Abdul Rashid was not made a party to the release application, the release application is liable to be dismissed. The Prescribed Authority, in my opinion, was right in holding that the release application was not maintainable. 14. IN the result, the petition is allowed. The order of the appellate authority dated 18th August, 1982, is quashed and that of the Prescribed Authority dated 5th November, 1981, is restored. Parties will bear their own costs.