JUDGMENT S.P. Khare, J. This is defendant's second appeal u/s 100 Code of Civil Procedure. The following substantial questions of law were formulated by order dated 13-5-1998 at the time of admission of this appeal:-- i. Whether in view of the pleadings in paragraph 17-A and 18 of the plaint, the Court below could have considered the question of partition between the parties as they are inconsistent pleadings on this point? ii. Whether the lower Appellate Court was right in holding that in the facts and circumstances of the case the appellant was not entitled to challenge the oral partition between the respondent and his brother whereby the suit property was given to the respondent? iii. Whether the lower Appellate Court failed to see that the question of partition was germane for decreeing the suit of the respondent in view of the fact that the appellant denied that she was the tenant of the respondent in individual capacity? iv. Whether the lower Appellate Court, in paragraph 9 and 10 of its judgment, could have reversed the finding of the trial Court, on the question of partition, without meeting the conclusion of the trial Court that there was no partition between the parties? v. Whether in view of the pleading of the respondent, in paragraph 3-B of the Written Statement, the burden of proof was upon the appellant to plead and prove that the rent note executed by her was for and on behalf of herself and her three sons and three daughters? There is a concurrent finding of fact of the trial Court and the first Appellate Court that the suit accommodation had been let out for nonresidential purpose and it is required bona fide by the plaintiff for carrying on his cloth business and he has no other reasonably suitable nonresidential accommodation of his own in his occupation for this purpose in the city. The suit has been decreed u/s 12(1)(f) of the M. P. Accommodation Control Act, 1961. The suit accommodation was let out by the plaintiffs father Chotelal to Gurdasmal, the husband of defendant Mohni Bai. The original lessor and lessee both have died. Chotelal has left behind two sons Kundanlal Jain and Devendra Jain. The suit has been decreed u/s 12(1)(f) of the M. P. Accommodation Control Act, 1961. The suit accommodation was let out by the plaintiffs father Chotelal to Gurdasmal, the husband of defendant Mohni Bai. The original lessor and lessee both have died. Chotelal has left behind two sons Kundanlal Jain and Devendra Jain. The first Appellate Court reversing the finding of the trial Court has held that there has been a partition between them on 30-11-1982 and the suit accommodation has been allotted to the share of Kundanlal Jain who is plaintiff in this case. There is another shop which has fallen to the share of Devendra Jain and he has let out the same to Prakash Kumar Pahuja during the pendency of this suit. According to the defendant the partition is sham and bogus in order to show that the alternative shop which has been let out during the pendency of the suit does not belong to the plaintiff but to his brother. It is also pleaded by the defendant that after the death of the original tenant the tenancy has been inherited by his three sons and three daughters also and therefore the suit for eviction against defendant Mohnibai, the widow of the original tenant, alone is not maintainable. It is on these pleas that five questions referred above have been framed. Questions No. (i) to (iv) There is no inconsistency in the pleadings in para 17-A and 18 of the plaint. There are only two shops in the house. According to the plaint allegations the suit shop has been allotted to the plaintiff in the partition and the other shop has gone to the share of the plaintiffs brother. The trial Court had held that the plaintiff can file the suit for eviction even if he is only a co-owner of the suit accommodation. The first Appellate Court has given the finding on the basis of evidence of plaintiff Kundanlal Jain (P.W. 1) and his brother Devendra Jain (P.W. 2) that there has been actual partition between the two brothers in which the suit shop has been allotted to the plaintiff. There is no document to establish the partition but there can be oral partition also. The view taken by the first Appellate Court is reasonable and plausible and it cannot be said to be perverse. There can be no interference with such finding in second appeal. There is no document to establish the partition but there can be oral partition also. The view taken by the first Appellate Court is reasonable and plausible and it cannot be said to be perverse. There can be no interference with such finding in second appeal. The question of partition has assumed some significance because during pendency of the suit the other shop has been let out by the plaintiffs brother and it could be treated as 'alternative accommodation' available with the plaintiff to satisfy his own need if there had been no partition between the two brothers. The finding that there has been a partition is a pure finding of fact and the evidence is consistent with the pleadings. The finding on this point recorded by the first Appellate Court which is a final Court of fact must be accepted. The scope for challenging the partition between the co-owners by the tenant is very limited. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it amongst themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of the Rent Control Laws which protect eviction of the tenants except on specified grounds set out in the statute. This is the law laid down by the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, , which approves the view taken by this Court in Santosh Kumar Jain Vs. Shambhulal Krishna Kumar Suhane, , on which reliance has been placed by the first Appellate Court. The questions No. (i) to (iv) are answered accordingly. The first Appellate Court could consider the question of partition. The finding that there has been actual partition between the two brothers in which one shop has been given to the plaintiff and the other to his brother is correct. The tenant cannot challenge the partition as it cannot be said to be sham or bogus. Question No. (v). It is well settled that the statutory tenancy is heritable. The finding that there has been actual partition between the two brothers in which one shop has been given to the plaintiff and the other to his brother is correct. The tenant cannot challenge the partition as it cannot be said to be sham or bogus. Question No. (v). It is well settled that the statutory tenancy is heritable. The heirs of the deceased tenant will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant Gian Devi Anand Vs. Jeevan Kumar and Others, and Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. and others, . But in the present case after the death of the original tenant his widow executed a fresh agreement in favour of the plaintiff. That was within the knowledge of the other heirs of the original tenant. Thus there was a new tenancy with defendant Mohnibai. She alone is paying the rent of the suit accommodation at the rate of Rs. 440/- per month. The other heirs have impliedly surrendered the original tenancy and a new tenancy has been created in favour of the defendant. That is permissible u/s 111 (e) and (f) of the Transfer of Property Act Kamlabai and Others Vs. Mangilal Dulichand Mantri, . There is an illustration appended to clause (f) of section 111 of the Transfer of Property Act to the effect that "A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon." The creation of fresh tenancy implies surrender of the old tenancy P.M.C. Kunhiraman Nair Vs. C.R. Naganatha Iyer and others, . The view taken by the first Appellate Court on this point is also unassailable. In the result this appeal is dismissed. Final Result : Dismissed