ORDER 1. Defendants have filed this appeal against the judgment and decree dated 10.1.2005 passed by VIII Additional District Judge, Gwa1ior in Civil Appeal No.40-A/2004 affirming the judgment and decree dated 30.4.2004 passed by IX Civil Judge, Class I, Gwalior in Civil Suit No.62-A/2002. 2. The appeal has been admitted vide order dated 8.9.2005 for hearing on the following substantial questions of law: "(1) Whether the suit filed by the plaintiff for ejectment against the defendants is not maintainable in view of the fact that partnership firm to whom accommodation was let is not joined as party? (2) Whether the Courts below have erred in passing the decree under section 12(1)(f) of the M.P. Accommodation Control Act, when plaintiff has failed to prove his need to the suit accommodation objectively? (3) Whether the finding of the Courts below about the bona fide need of the plaintiff is vitiated for non-consideration of the facts i.e. age of the plaintiff, his past experience, failure to file a suit within six years of his retirement etc. are material consideration for determining his bona fide need?" 3. During the pendency of the second appeal the respondent filed a cross-objection which has also been admitted on 19.10.2005 for hearing on the following substantial question of law: "Whether the first appellate Court has erred in refusing to pass a decree on the ground of section 12(1)(a) when the rent is not deposited in accordance with section 13(1) and the delay is not condoned by the first appellate Court?" 4. Facts of the case are -- plaintiff, Ram Prakash Sharma filed a suit for eviction and recovery of rent against defendant, Babulal Birla. Plaintiff pleaded that he is the owner of a shop situated at Patankar Bazar, Lashkar, Gwalior. The shop was let out by his father, late Shri Matadeen Sharma on 23.6.1947 on a written rent-deed. Father of the plaintiff died on 26.6.1971. After death of the father defendant, Babulal Birla became tenant of the plaintiff and the tenancy is oral. It had been agreed between the parties to pay monthly rent of Rs.125/- per month. The defendant did not pay rent. The shop is needed for bona fide need of the plaintiff because the plaintiff wants to start business of restaurant. He had sufficient fund for the aforesaid purpose. It had been agreed between the parties to pay monthly rent of Rs.125/- per month. The defendant did not pay rent. The shop is needed for bona fide need of the plaintiff because the plaintiff wants to start business of restaurant. He had sufficient fund for the aforesaid purpose. The defendant in the written statement admitted the fact that the shop was rented out on 23.6.1947. It has further been pleaded by the defendant that he had been paying rent regularly. The defendant denied the bona fide need of the plaintiff and stated that wife of the plaintiff had been working as Teacher at Gajra Raja Girls School, Gorkhi, Gwalior. His son, Arvind Sharma was in Air Force and younger son, after obtaining B.E. Degree, was also posted at Maruti Udyog Ltd. Gudgaon. The written statement was amended further and the defendant stated that in the year 1994 the plaintiff got possession of two times larger space in comparison to the suit shop, which is adjacent to the shop in dispute. The defendant also raised a plea that on 1.4.1976 the partnership firm of defendant came into existence and an information had been given to this effect to the plaintiff. The plaintiff agreed to transfer the tenancy of the shop in favour of the partnership firm and also received rent from the partnership firm, named as 'firm Birla Machinery Company' and issued rent-receipts in favour of the partnership firm. Inspite of this the partnership firm has not been impleaded as a party, neither partners of the firm have been impleaded as parties, hence the suit is not maintainable on the ground of non-joinder of necessary parties. In view of special pleadings and amendment in the written statement, which was allowed by the Court, the plaintiff also amended the plaint. He pleaded that no notice of existence of partnership firm had been given to him. The defendant illegally handed over possession of the suit premises to the partnership firm. There is a sub-letting on the part of the defendant and on this ground also the plaintiff is entitled to receive decree of eviction. 5. During pendency of the suit an application under Order 1 rule 10 CPC has been filed before the Court on 13.2.2001 by Birla Machinery Co. through Radheshyam Birla and Harish Birla, as partners. They pleaded that partnership came into existence on 1.4.1976. 5. During pendency of the suit an application under Order 1 rule 10 CPC has been filed before the Court on 13.2.2001 by Birla Machinery Co. through Radheshyam Birla and Harish Birla, as partners. They pleaded that partnership came into existence on 1.4.1976. There is a registered deed of partnership. The plaintiff treated partnership firm as tenant, hence the partnership firm and its partners, Radheshyam Birla and Harish Birla are the necessary parties. Hence, they be added as defendants. Plaintiff objected the application and pleaded that defendant, Babulal Birla had been given the premises on rent, hence the partners and partnership firm are not the necessary parties. The aforesaid application has been rejected by the trial Court vide order dated 8.3.2001 by holding that documents filed by the defendants can be filed during trial and the decree of eviction can be passed without adding the aforesaid parties to the suit. A review application was filed against the aforesaid order. That has also been rejected vide order dated 17.8.2001. 6. The plaintiff in his deposition stated that he is the owner of the suit shop. The shop was rented out by his father on 23.6.1947 to the defendant, Babulal Birla on a written tenancy at the rate of Rs.60/- per month, the agreement has been filed as Ex.P-3. The tenancy has been continued after death of his father. The shop was needed bona fide to the plaintiff for starting of business of hotel/restaurant. He admitted in his cross-examination that he received possession of an area of 1150 sq.ft., which is adjacent to the shop and the area of shop is 460 sq.ft., however, that area is not sufficient to start business of plaintiff. He further admitted that he signed documents Exs. D-1 and D-2, rent receipts on bahalf of 'Birla Machinery Company'. He further admitted that there is a board on the shop of Birla Machinery Company and both sons of the defendants had been doing business at the shop. He further admitted that he received rent from Babulal and some times from his sons. On behalf of the plaintiff two other witnesses, Naresh Kumar (PW2) and Satya Narayan (PW3) have been examined. PW2 Naresh Kumar in his statement stated that Birla Machinery Company had been doing business of machines in the shop. Plaintiff had experience of hotel and restaurant. The shop is sufficient for business of hotel and restaurant. On behalf of the plaintiff two other witnesses, Naresh Kumar (PW2) and Satya Narayan (PW3) have been examined. PW2 Naresh Kumar in his statement stated that Birla Machinery Company had been doing business of machines in the shop. Plaintiff had experience of hotel and restaurant. The shop is sufficient for business of hotel and restaurant. Another witness of the plaintiff Satya Narayan (PW3) in his statement stated that Ram Prakash had been doing the business in the shop. The shop is sufficient for the business of restaurant. He admitted in his cross-examination that the plaintiff got possession of a portion from another tenant. 7. The defendant in his statement stated that the shop was rented out by the father of the plaintiff to him on 23.6.1947. The plaintiff demanded 'Pagree' from him. The plaintiff also got possession of 1150 sq.ft. plot, which is adjacent to the shop. He had been doing business in the shop in the name of 'Birla Machinery Company'. The rent receipts, Exs. D-1 and D-2 are also from the plaintiff in the name of 'Birla Machinery Company'. In the year 1976 there a partnership firm has been created in the name of 'Birla Machinery Company' and other partners of the firm are his sons, Radheshyam and Harish. On 13.7.1996 the plaintiff had given a letter to Andhra Bank, Gwalior mentioning the fact that the tenant of the shop is 'Birla Machinery Company', a partnership firm, copy of the letter and certificate from the Bank have been filed as Exs.D-37 and D-38 and registration of partnership firm has been filed as EX.D-39. The defendant denied the need of the plaintiff. In his cross-examination he stated that his two sons had been doing the business in the shop. 8. On behalf of defendants Mr. Radheshyam Birla and Mr. Harish Birla have been examined as DW2 and DW3. Another witness, Saroj Bindal has also been examined. Son of the defendant, Radheshyam Birla has stated that he had been doing business in the shop in the name of partnership firm since 1976. His brother and father are the partners of the firm. The registration of the firm is Ex.D-39. The plaintiff received rent from the firm and also informed Andhra Bank that the firm is the tenant. He further stated that there was no bona fide need of the plaintiff and the plaintiff got possession of near about 1200 sq.ft. His brother and father are the partners of the firm. The registration of the firm is Ex.D-39. The plaintiff received rent from the firm and also informed Andhra Bank that the firm is the tenant. He further stated that there was no bona fide need of the plaintiff and the plaintiff got possession of near about 1200 sq.ft. Same facts have been stated by Mr. Harish Birla, who is the son of the defendant and who has been examined as DW3. He admitted that there are restaurants and sweets shops adjacent to the suit shop. Another witness Saroj Bindal stated that plaintiff had no experience of restaurant business and he also received possession of the premises of an area of 1150 sq.ft., which is adjacent to the shop. Mr. Vijay Sengar, who has been examined as witness on behalf of defendant denied the fact that had experience of restaurant business. 9. Apart from oral evidence plaintiff produced rent note, Ex.P-3, copy of the map of the suit shop and death certificate of his father, Ex.P-4. The defendants produced receipts of rent of Rs.1,500/- dated 31.3.1994 and 31.3.1990, Exs.D-1 and D-2, photographs of the place and letter Ex.D-37 written by the defendant to the Bank and certificate issued by the Bank as Ex.D-38, copy of registration of the firm as Ex.P-39 and partnership deed. 10. On the basis of the pleadings, documents and evidence on record the trial Court has held that the plaintiff is entitled to a decree of eviction on the ground of bona fide need under sections 12(1)(f), 12(1)(a) and also 12(1)(c) of M.P. Accommodation Control Act and decreed the suit. 11. The defendants filed an appeal. During pendency of the appeal Babulal Birla died and his legal representatives have been brought on record. The lower appellate Court affirmed the decree of eviction passed by the trial Court on the grounds under sections 12(1)(a) and 12(1)(f) of the M.P. Accommodation Control Act. Thereafter, appellants filed the present appeal and the respondents filed cross-objections against the rejection of the claim of the plaintiff under section 12(1)(c) of the Act for arrears of rent. The appeal has been admitted and cross-objections have also been admitted for hearing on the substantial questions of law mentioned above. 12. Thereafter, appellants filed the present appeal and the respondents filed cross-objections against the rejection of the claim of the plaintiff under section 12(1)(c) of the Act for arrears of rent. The appeal has been admitted and cross-objections have also been admitted for hearing on the substantial questions of law mentioned above. 12. Learned senior counsel for the appellants has submitted that the plaint filed by the plaintiff is not maintainable for non-joinder of necessary parties because the suit accommodation had been subsequently let out to the partnership firm and it has not been joined as a defendant inspite of application. Hence, the suit has to be dismissed. The learned counsel further submitted that there is no bona fide need to the plaintiff and the findings to this effect are vitiated looking to the age of the plaintiff and the fact that plaintiff got possession of another land of 1200 sq.ft. and he has not started any business over the land. In support of his contentions the learned counsel relied upon the following judgments : (1) Deena Nath v. Pooran Lal [ (2001)5 SCC 705 ]; (2) Ramesh v. A.B. Balreddy [1990(II) MPWN 71 (SC)]; (3) Chhotelal Ratanlal and another v. Rajmal Milapchand and others [AIR (38) 1951 Nagpur448]; (4) Mattulal v. Radhelal [1975 JLJ 1 (SC)]; (5) Kishan Chand v. Jagdish Pershad and others [ (2003)9 SCC 151 ]; (6) J.J. Lal Pvt. Ltd. and others v. M.R. Murali and another [ (2002)3 SCC 98 ]; (7) Indrasen Jain v. Rameshwardas [ AIR 2005 SC 578 ]; (8) Nagubal Ammal and others v. B. Sharma Rao and others [ AIR 1956 SC 593 ]; (9) Bhairab Chandra Nandan v. Ranadhir Chandra Dutta [ AIR 1988 SC 396 ]. 13. Contrary to this, learned senior counsel for the respondents-plaintiff submitted that the suit shop has never been let out to partnership firm. As per the agreement the tenancy was between the plaintiff and the defendant. No issue has been framed to this effect before the trial Court neither both the Courts below have recorded any finding on the aforesaid issue. Hence it cannot be raised for the first time in the second appeal. As per the agreement the tenancy was between the plaintiff and the defendant. No issue has been framed to this effect before the trial Court neither both the Courts below have recorded any finding on the aforesaid issue. Hence it cannot be raised for the first time in the second appeal. Learned senior counsel further submitted that both the Courts below have appreciated the evidence on record and found need of the plaintiff bona fide and the findings of both the Courts below to this effect are as per law. He further submitted that the cross-objection filed by the respondent is also liable to be allowed because there is a delay in depositing arrears of rent. In support of his contentions, learned counsel relied upon the following judgments : (1) Kanji Manjil v. The Trustees of the Port of Bombay [ AIR 1963 SC 468 ]; (2) Sheodhari Rai and others v. Suraj Prasad Singh and others [ AIR 1954 SC 758 ]; (3) N.M. Ponniah Nadar v. Smt. Kamalakshmi Ammal [ AIR 1989 SC 467 ]; (4) Tarabai livanlal Parekh v. Lala Padamchand [AIR 1950 Bombay 89]; (5) Keshoram v. Madhoprasad [1960 JLJ 170=1960 MPLJ SN 116]; (6) Unreported judgment in Rajendra Prasad v. Smt. Shanti Garg and others, Second Appeal No.542/07, decided on 29.10.2007 at Gwalior Bench. 14. As mentioned above in this judgment, initially the plaintiff filed a suit for eviction on the ground of recovery of arrears of rent and bona fide need. The defendant denied the need of the plaintiff and also denied the factum of arrears of rent. Subsequently, the defendant amended the written statement and pleaded that on 2.4.1976 a partnership firm was created and it has been doing business in the shop in dispute. The plaintiff informed about the partnership firm and he also consented to transfer the tenancy in favour of the partnership firm. He received rent from the partnership firm. The partnership firm is a registered firm and it had been doing the business in the shop in the name of 'Birla Machinery Company'. In spite of that the partnership firm and its partners have not been impleaded as parties in the suit, hence the plaint is liable to be rejected on the ground of non-joinder of necessary parties. The partnership firm is a registered firm and it had been doing the business in the shop in the name of 'Birla Machinery Company'. In spite of that the partnership firm and its partners have not been impleaded as parties in the suit, hence the plaint is liable to be rejected on the ground of non-joinder of necessary parties. After the aforesaid amendment in the written statement the plaintiff also amended the plaint and denied that the shop had been let out to the partnership firm. An application was also filed before the trial Court on behalf of partnership firm through all the partners, namely, Radheyshyam Birla and Harish Birla for making them as parties under Order 1 rule 10 CPC. The plaintiff opposed the aforesaid application and stated that the accommodation has never been let out to the partnership firm. That application has been rejected by the Court vide order dated 8.3.2001. Thereafter, a review application was filed and that application was also rejected by the Court by order dated 17.8.2001. 15. Initially, the shop was let out to the defendant vide agreement, Ex.P-3. It was executed between Babulal Birla, the defendant and Matadeen Sharma, father of the plaintiff, on 23.6.1947. The agreement was valid upto 23rd June 1948 and as per the agreement shop was rented out on a monthly rent of Rs.60/- per month. Subsequently, Mr. Matadeen Sharma died on 26.6.1971. Since the date of agreement the shop is in possession of the defendant. The plaintiff in his plaint pleaded that initially the shop was rented out by the father of the plaintiff on the basis of a written agreement, Ex.P-3, and after death of his father, who died on 26.6.1971, the defendant Babulal Birla became the tenant of the plaintiff and the tenancy is oral. The rent of the shop was also fixed as Rs.125/- per month. The defendant specifically pleaded that the shop was subsequently rented out in favour of a firm, namely, 'Birla Machinery Company'. The firm was registered with the Registrar on 6.8.1976. Registration certificate has been filed as Ex.P-39. The partnership deed was executed on 1st April, 1986 between the partners, Babulal Birla, Radheshyam Birla and Harish Birla. The plaintiff received rent of Rs.1,500/- from 'Birla Machinery Company'. Receipt of rent has been filed as Ex.D-1 which is dated 31.3.1994. Another rent receipt has been filed as Ex.D-2. Registration certificate has been filed as Ex.P-39. The partnership deed was executed on 1st April, 1986 between the partners, Babulal Birla, Radheshyam Birla and Harish Birla. The plaintiff received rent of Rs.1,500/- from 'Birla Machinery Company'. Receipt of rent has been filed as Ex.D-1 which is dated 31.3.1994. Another rent receipt has been filed as Ex.D-2. It is also in the name of 'Birla Machinery Company'. It is dated 31.3.1990. It is for the rent of Rs.1,500/-. As per the aforesaid documents Mr. Ram Prakash Sharma received rent of the shop from 31st March, 1990 upto October and as per Ex.D-1 Mr. Ram Prakash Sharma received rent of the shop from 1st April, 1993 to 31st March, 1994. Plaintiff admitted his signature on receipts, Ex.D-1 and Ex.D-2 in para 21 of his cross-examination. He further admitted that there is a sign-board on the shop of 'Birla Machinery Company'. Apart from this, the plaintiff submitted a rent letter to the Manager, Andhra Bank, Gwalior informing the bank that Birla Machinery Company was the tenant of the plaintiff. Photocopy of the rent letter had been filed as Ex.D-37, in which following paragraph has been mentioned by the plaintiff : "With reference to the advances already granted and advances to be granted in future by your Bank to Birla Machinery Company against goods stored in my godown No. ... situated at Patankar Bazar, Gwalior, I hereby agree and confirm that I have no lien on goods already pledged and to be pledged to your Bank in future and that I have no objection and shall have no objection whatsoever hereafter to your Bank having access to the goods whenever necessary for the purpose of inspection or otherwise and also to your Bank's putting its name boards locks etc. on the godown or godowns containing the goods in token of your Bank's lien over them." The Bank further submitted a certificate, which has been filed as Ex.D-38. In the aforesaid certificate, it has been mentioned that a rent letter was received by the Bank with regard to Birla Machinery Company, Patankar Bazar, Gwalior, a registered partnership firm from the landlord and that rent letter has not been cancelled. The certificate is dated 19.4.2003. 16. In the aforesaid certificate, it has been mentioned that a rent letter was received by the Bank with regard to Birla Machinery Company, Patankar Bazar, Gwalior, a registered partnership firm from the landlord and that rent letter has not been cancelled. The certificate is dated 19.4.2003. 16. From the aforesaid documentary evidence, it is clear that the plaintiff received rent from Birla Machinery Company as per Exs.D-1 and D-2 and the plaintiff also submitted a rent letter to the Bank, Ex.P-37 mentioning that Birla Machinery Company, Patankar Bazar, Gwalior, a registered partnership firm was the tenant of the plaintiff and the rent letter has never been cancelled as per the certificate issued by the Bank Ex.D-38. The defendant himself stated in the year 1976, the defendant informed to the plaintiff about the creation of partnership firm and thereafter his both sons have become partners of the firm. Both the sons of the defendant have also deposed in the same facts in their evidence as DW2 and DW3. 17. From the above facts and documents, Exs.D-1 and D-2 and specially the letter. Ex.D-37 it is clear that the plaintiff accepted the Birla Machinery Company, a registered partnership firm as his tenant because the plaintiff received rent to this effect and submitted a rent letter to the Bank. Initially, there was only a written agreement between the defendant and father of the plaintiff, Annexure P-3 and it was for a period of one year i.e. upto 23rd June, 1948. The plaintiff himself pleaded that after death of his father there was an oral tenancy. Section 111 of the Transfer of Property Act prescribes surrender of lease, which is as under: "111. Determination of lease. The plaintiff himself pleaded that after death of his father there was an oral tenancy. Section 111 of the Transfer of Property Act prescribes surrender of lease, which is as under: "111. Determination of lease. -- A lease of immovable property determines -- (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event -- by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to the happening of any event -- by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them; (f) by implied surrender; (g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter (***); or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease; (h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other." 18. Hon'ble the Supreme Court in TK. Lathika v. Seth Karsandas Jamnadas [ AIR 1999 SC 3335 ], has held as under with regard to doctrine of implied surrender : "12. Hon'ble the Supreme Court in TK. Lathika v. Seth Karsandas Jamnadas [ AIR 1999 SC 3335 ], has held as under with regard to doctrine of implied surrender : "12. The principle which governs the doctrine of implied surrender of a lease is that when certain relationship existed between two parties in respect of a subject-matter and a new relationship has come into existence regarding the same subject-matter, the two sets cannot co-exist, being inconsistent and incompatible between each other, i.e. if the latter can come into effect only on termination of the former, then it would be deemed to have been terminated in order to enable the latter to operate. A mere alteration or improvement or even impairment of the former relationship would not ipso facto amount to implied surrender. It has to be ascertained on the terms of the new relationship vis-a-vis the erstwhile demise and then judge whether there was termination of the old jural relationship by implication." The Hon'ble Supreme Court in P.M.C. Kunchiraman Nair v. C.R.Naganatha Iyer and others [ (1992)4 SCC 254 ], has held as under with regard to the same principle : "In English law, delivery of possession by the tenant to a landlord and his acceptance of possession effects a surrender by operation of law. It is also called implied surrender in contradistinction to express surrender which must be either by deed or in writing. Directing the occupier to acknowledge the landlord as his landlord i.e. to attorn to the landlord, is a sufficient delivery of possession by the tenant to the landlord. Receipt of rent from a person in possession may be evidence of the landlord's acceptance of him as tenant, whether he is a stranger, or whether he was already in possession as sub-tenant. Illustration under clause (f) of S.111 of the T.P. Act is not exhaustive of the cases in which there may be an implied surrender of the lease. Receipt of rent from a person in possession may be evidence of the landlord's acceptance of him as tenant, whether he is a stranger, or whether he was already in possession as sub-tenant. Illustration under clause (f) of S.111 of the T.P. Act is not exhaustive of the cases in which there may be an implied surrender of the lease. Just as under the English law, there can be an implied surrender under the law of transfer of property in India, if the lessor grants a new lease to a third person with the assent of the lessee under the existing lease who delivers the possession to such person or where the lessee directs his sub-tenant to pay the rent directly to a lessor." Hon'ble the Supreme Court in Tarachand v. Sagarbai alias Chaiyalibai [ 2008(3) JLJ 151 = (2007)5 SCC 392 ], has held as under with regard to implied surrender : "25. Although technically a tenant may continue to occupy the premises, once the nature of possession changes resulting in change in his status, which he accepts, the same may amount to virtual taking of possession. In any event, virtual taking of possession is not a sine quo non for implied surrender as the same can be created by a new relationship also. In Nemichand v. Onkar Lal [ (1991)3 SCC 464 ], this aspect of the matter has not been considered." 19. As per the above quoted judgments of Hon'ble Supreme Court it is clear that delivery of possession is not a sine quo non for implied surrender and from the facts of the case there can be an implied surrender and a new relationship can also be created. 20. From the facts mentioned above, it is clear from the Exs.D-1 and D-2, D-37 and D-38 rent letter and certificate issued by the plaintiff that plaintiff accepted the tenancy of partnership firm 'Birla Machinery Company' and there is an implied surrender of tenancy in favour of Birla Machinery Company and new relationship has been created between the plaintiff and Birla Machinery Company. 21. Hon'ble the Supreme Court in B. Arvind Kumar v. Government of India and others [ (2007)5 SCC 745 ], has held as under with regard to essential ingredients of a lease : "9. Section 105 of the Transfer of Property Act, 1882 defines lease as follows : "105. Lease defined. 21. Hon'ble the Supreme Court in B. Arvind Kumar v. Government of India and others [ (2007)5 SCC 745 ], has held as under with regard to essential ingredients of a lease : "9. Section 105 of the Transfer of Property Act, 1882 defines lease as follows : "105. Lease defined. -- A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. Lessor, lessee, premium and rent defined. -- The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent." Thus the essential ingredients of a lease are: (a) there should be a transfer of a right, to enjoy an immovable property; (b) such transfer may be for a certain terms or in perpetuity; (c) the transfer should be in consideration of a premium or rent; (d) the transfer should be a bilateral transaction, the transferee accepting the terms of transfer." 22. In view of the above judgment it is clear that a tenancy had been created between, the plaintiff and Birla Machinery Company, a partnership firm, a firm which had three partners i.e. Babulal Birla, Radheshyam Birla and Harish Birla. The partnership firm filed an application for joinder of necessary parties. That has been resisted by the plaintiff. Hence, the partnership firm and its partners were the necessary parties in the suit of eviction because the tenancy was between the plaintiff and Birla Machinery Company, a partnership firm. In accordance with the provisions of Order 30 of the Code of Civil Procedure the partners can be sued in the name of the firm. In the present case the plaintiff has not sued the firm and neither all the partners. Contrary to this, the firm and its partners filed an application for joining them as defendants. That has been resisted by the plaintiff. 23. In the present case the plaintiff has not sued the firm and neither all the partners. Contrary to this, the firm and its partners filed an application for joining them as defendants. That has been resisted by the plaintiff. 23. The Division Bench of Nagpur High Court in Chhotelal Ratanlal and another v. Rajmal Milapchand and others [AIR (38) 1951 Nagpur 448], has held as under : "Where a sum of money is due to a partnership firm, such a sum can be recovered either in a suit brought by all the partners of the firm or in a suit filed in accordance with O.30 R.1, in the name of the firm. Suit by one partner alone in his name is not maintainable." The Division Bench of Nagpur High Court further held as under with regard to that all the partners of a firm or firm has not been added as parties then the suit is not maintainable: "The principle is that in actions of contract, it is the right of the defendant, if he takes the objection in proper time to insist upon all persons with whom he contracted being joined as plaintiffs and if after objection has been raised, the plaintiff proceeds with the suit without taking steps to add the person or persons whose non-joinder has been objected to and the Court finds that the objection is well founded, the suit must be dismissed. See Ramsebuk v. Ramlall Koondoo [6 Cal 815]. More than once it has been held that one of the several partners carrying on business in the name of a firm cannot sue in his own name the cause of action which has arisen in favour of the firm. See Dular Chand v. Balram [Das' 1 All 453], Ralliram Shelvaram v. Firm of Bhudhuram [AIR (12) 1925 Sind 181] and Behari Lal v. Ram Chand [AIR (29) Oudh 335]." The Hon'ble Supreme Court in Her Highness Maharani Mandaisa Devi and others v. M. Ramnarain Private Ltd. and others [ AIR 1965 SC 1718 ], has held as under with regard to suit against a partnership firm : "A suit by or in the name of firm is really a suit by or in the name of all its partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. The decree passed in the suit, though in form against the firm, is in effect a decree against all the partners. Beyond doubt, in a normal case, where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under O.30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of O.21 R.50 of the Code of Civil Procedure." The learned Single Judge of Karnataka High Court in Sri Jayantilal Sampathraj Jain v. Shri D. Noor Mohamed [1996 AIHC 2297], has held as under : "Where an eviction petition under S.21 of the Karnataka Rent Control Act, 1961 was filed against the partnership firm, the tenant firm can be sued in its own name, without the partners being impleaded, in view of R.1 of O.30 Civil P.C., since rule 35 of the Karnataka Rent Control Rules, 1961 expressly provides that in deciding any question relating to procedure not specifically provided for by these Rules, the Court shall as far as possible be guided by the provisions contained in the Code of Civil Procedure, 1908. Thus, the provisions of Order 30 of the CPC in its entirety are applicable to proceeding under section 21 of the Karnataka Rent Control Act, 1961. AIR 1984 SC 1570 , Expl. and Disting." A Division Bench of this Court in Smt. Vraj Kuwar Bai and others v. Kunjbiharilal Krishnachandra and others [ 1971 JLJ 6 = AIR 1971 MP 109 ], has held as under : "11. Under Order 30 of the Code of Civil Procedure, a suit can be filed against a firm without joining all or any of the individual partners by name as defendant and a valid and binding decree can be passed which will be executable against the firm property. The necessity of joining individual partners is only for the purposes of binding a particular partner personally, but for binding the partnership property it is not at all necessary to implead any partner by name. The necessity of joining individual partners is only for the purposes of binding a particular partner personally, but for binding the partnership property it is not at all necessary to implead any partner by name. Under Order 21 rule 50 of the Code of Civil Procedure, where a decree has been passed against a firm, execution may be granted against any property of the partnership; but it can be granted against the person or personal property of the partners only if they are parties to the suit or permission is obtained to execute the decree against individual partners." 24. From the above principle of law laid down it is clear that the partnership firm can be sued in the name of partnership firm or against all the partners. However, in the present case, although the tenancy was transferred in favour of the partnership firm, as held earlier, the plaintiff has not sued the partnership firm neither all the partners. Only Babulal Birla has been sued. In such circumstances, the suit was not maintainable due to non-joinder of necessary parties. 25. Although no issue has been framed by the trial Court in this regard, but in the present case, the plaintiff went into the trial of the suit with full knowledge and the defendant at the initial stage objected with regard to maintainability of the suit, the plaintiff denied the claim of the defendant to this effect. Thereafter in evidence the defendant specifically pleaded that the tenancy has subsequently been transferred to Birla Machinery Company, a partnership firm. The plaintiff in his evidence denied the aforesaid fact. Even though the plaintiff opposed the application of amendment filed on behalf of the partners of the partnership firm and resisted the prayer of the partners to be joined as defendants. In such circumstances, plaintiff went on trial with the knowledge of the aforesaid issue and led evidence on this aspect. There is no prejudice to the plaintiff due to the aforesaid issue. 26. The Hon'ble Supreme Court in Nagubai Ammal and others v. B. Shama Rao and others [ AIR 1956 SC 593 ], has held as under with regard to non-framing of specific issue: "(10) 1. We see no substance in the contention that the plea of lis pendens is not open to the plaintiff on the ground that it had not been raised in the pleadings. We see no substance in the contention that the plea of lis pendens is not open to the plaintiff on the ground that it had not been raised in the pleadings. It is true that neither the plaint nor the reply statement of the plaintiff contains any averment that the sale is affected by the rule of lis pendens. Nor is there any issue specifically directed to that question. It is argued for the respondent that the allegations in para 4 of the plaint and in para 5 of the reply statement that Dr. Nanjunda Rao being a transferee subsequent to the mortgage could claim no right "inconsistent with or superior to those of the mortgagee and the auction purchaser" are sufficiently wide to embrace this question, and reference was made to issue No.3 which is general in character. Even if the plaintiff meant by the above allegations to raise the plea of lis pendens, he has not expressed himself with sufficient clearness for the defendants to know his mind, and if the matter had rested there, there would be much to be said in favour of the appellant's contention. But it does not rest there. (11) The question of lis pendens was raised by the plaintiff at the very commencement of the trial on 8.3.1947, when he went into the witness-box and filed in his examination-in-chief Exhibit-J series, relating to the maintenance suits, the decree passed therein and the proceedings in execution thereof, including the purchase by Devamma. This evidence is relevant only with reference to the plea of lis pendens, and it is significant that no objection was raised by the defendants to its reception. Nay, more. On 13.3.1947 they cross-examined the plaintiff on the collusive character of the proceedings in Exhibit-J series, and filed documents in proof of it. The trial went on thereafter for nearly three months, the defendants adduced their evidence, and the hearing was concluded on 2.6.1947. In the argument before the District Judge, far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of S.52, T.P. Act. In the argument before the District Judge, far from objecting to the plea of lis pendens being permitted to be raised, the defendants argued the question on its merits, and sought a decision on the evidence that the proceedings were collusive in character, with a view to avoid the operation of S.52, T.P. Act. We are satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that, in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice to them. (12) It was argued for the appellants that as no plea of lis pendens was taken in the pleadings, the evidence bearing on that question could not be properly looked into, and that no decision could be given based on Exhibit-J series that the sale dated 30.1.1920 was affected by lis; and reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah v. Mt. Saran [1930 PC 57(1) (AIR V 17)], (A), that "no amount of evidence can be looked into upon a plea which was never put forward. The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto." A Division Bench of this Court in Ishak Ali v. Mst. Unnasbi Porthahin and others [ 1958 JLJ 424 = AIR 1958 MP 209 ], has held as under : "No doubt, the plea of adverse possession was not made in so many words, but all the facts necessary thereto were pleaded by the defendant. The plaintiffs had full knowledge and notice of the case and the absence of a plea or issue had hardly affected the merits. The plaintiffs had full knowledge and notice of the case and the absence of a plea or issue had hardly affected the merits. The parties went to trial with the full realisation of what the case was and the plaintiffs, who had a burden initially on them, know fully well that they had been kept out of possession for 32 years by the defendants: Held that in these circumstances, it was incumbent upon them to have shown now the suit brought by them was within time. Case law relied on." Hon'ble the Supreme Court further in Sanotsh Hazari v. Purushottam Tiwari (deceased) by LRs [200 1(1) JLJ 401 = (2001)3 SCC 179 ], has held as under : "14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material hearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis." The Hon'ble Supreme Court in Achintya Kumar Saha v. Nanee Printers and others [ (2004)12 SCC 368 ], has held as under : "In cases where Courts are required to consider the nature of transactions and the status of parties thereto, one cannot go by mere nomenclatures such as, licence, licensee, licensor, licence fee, etc. In order to ascertain the substance of the transaction, the Court has to ascertain the purpose and the substance of the agreement. In such cases, intention of the parties is the deciding factor. In order to ascertain the intention, the Court has to examine the surrounding circumstances including the conduct of the parties. In the present case, the High Court was right in examining the terms of agreement coupled with the circumstances surrounding the agreement in question like exclusive possession of the premises being given to respondents No.1 and 2 for monetary consideration for eleven years with a clause of renewal of the licence for further eleven years, payment of municipal taxes by respondents No.1 and 2, the rent receipts issued by M, the premises being let out for business purposes in a residential locality and conduct of the plaintiff-appellant in not examining respondent No.4 who was held to have consented to the agreement in question. All the above circumstances taken together show that respondents No.1 and 2 were not trespassers. They show that the agreement was a tenancy in disguise of a licence. (Para 7) The main issue around which the entire case revolves is : whether the agreement was a licence or a tenancy. This issue was there before the trial Court and the agreement was held to be a licence. It was there also before the lower appellate Court but it was not adjudicated upon. When the core issue is not adjudicated upon, it results in a substantial question of law under section 100 CPC. Although the core issue of tenancy arose before the first appellate Court, the same was not adjudicated upon and in the circumstances the High Court was right in invoking section 103 CPC." 27. From the above principle laid down by Hon'ble the Supreme Court and the Division Bench of this Court as quoted above, it is clear that if parties went on trial with full knowledge of facts and led evidence then non-framing of issue is not fatal and that point can be considered by the Court. From the facts of the case, it is clear that joining of firm, which is a tenant of the plaintiff, goes to the root of the matter and it is necessary point to decide the case. From the facts of the case, it is clear that joining of firm, which is a tenant of the plaintiff, goes to the root of the matter and it is necessary point to decide the case. Plaintiff went to the trial with full knowledge of the aforesaid fact, hence the arguments advanced by the learned counsel for the respondent-plaintiff that the aforesaid point cannot be considered for the first time in the appeal cannot be accepted. 28. The question of non-joinder of necessary parties is a question of law and fact. It is based on the jurisdiction of the Court because if necessary parties have not been added as defendants then a decree cannot be executed against them. In the present case, as held earlier, that the tenancy was transferred to a partnership firm named as 'Birla Machinery Company', hence either Birla Machinery Company or its all the partners are necessary parties. The plaintiff has not added Birla Machinery Company as defendant neither all the partners as defendants. In such circumstances, a decree of eviction cannot be granted in favour of the plaintiff of the premises because the tenancy is in favour of a partnership firm - which means in favour of all the partners of the firm, hence the suit filed by the plaintiff is not maintainable. I answer the substantial question of law No.1 in affirmative in favour of the appellants. Hence, the plaint has to be rejected. In view of the above findings, there is no necessity to answer other substantial questions of law and also the substantial question of law with regard to cross-objection. 29. Consequently, the appeal filed by the appellants is hereby allowed. The suit filed by the plaintiff is hereby dismissed. It is hereby clarified that the plaintiff is free to file fresh suit adding the proper parties. No order as to costs.