JUDGMENT B.P. Katakey, J. 1. This appeal by the Plaintiff is directed against the judgment and decree dated 14.09.1998 passed by the learned Civil Judge (Senior Division), Dibrugarh, in Title Appeal No. 16/1996, setting aside the judgment and decree dated 31.05.1996 passed by the learned Munsiff No. 1, Dibrugarh, in Title Suit No. 2/1979, whereby and whereunder the suit of the Plaintiff/Appellant was decreed. 2. The Appellant as Plaintiff instituted the Title Suit No. 2/1979 in the Court of the learned Munsif No. 1, Dibrugarh, against the predecessor-in-interest of the present Respondent Nos. 1, 1(a) to 1 (e); Respondent Nos. 2, 3, 4; the predecessor-in-interest of the Respondent Nos. 5, 5(a), 5(b) and Respondent Nos. 6 to 8, praying for a decree for recovery of khas possession by evicting the Respondent/Defendant Nos. 1 to 5 from the land measuring 1 katha 18 lechas, described in the schedule to the plaint, covered by Dag No. 3988 (old)/142 (new) of periodic patta No. 267 (old)/91 (new), situated at Khalihamari Ward of Dibrugarh Town and included the Municipal Holding No. 902 of Khalihamari Ward of Dibrugarh Municipality; for arrear rent and compensation and also for cost, contending inter alia that late Abdul Aziz, the predecessor-in-interest of the Defendant/Respondent Nos. 6 to 8 was the lawful owner of the suit land under whom the original Defendant No. 1 was a monthly tenant for 1 (one) year for rent, who constructed a temporary house thereon and agreed to vacate the land on expiry of lease period. The said period of lease of the suit land, however, was extended twice at the interval of 6 (six) months by enhancing the rate of the rent to Rs. 300/- half-yearly, which came to an end on 10.10.1946. According to the Plaintiff, the original Defendant No. 1 started the sweet meat shop in the temporary house in the name and style of the Defendant No. 2. It has further been pleaded that a fresh lease was thereafter created by Abdul Aziz in favour of the Defendant No. 1 at the rent of Rs. According to the Plaintiff, the original Defendant No. 1 started the sweet meat shop in the temporary house in the name and style of the Defendant No. 2. It has further been pleaded that a fresh lease was thereafter created by Abdul Aziz in favour of the Defendant No. 1 at the rent of Rs. 600/- per year and with the stipulation that the Defendant No. I would not make any permanent structure on the land by changing the structure of the existing house, that he would not sublet the said land or the house to anybody and he shall vacate the land by removing the house therefrom whenever the landlord ask him to do so. The further pleaded case in the plaint is that taking advantage of the illness of Abdul Aziz, the Defendant No. 1 made some further improvement of the house without taking any permission and sublet the part of the house to some other tenants including the Plaintiff Gopal Chandra Sarkar and thereafter the Defendant No. 1 left for Duliajan. It has further been pleaded that after the death of Abdul Aziz, the Defendant Nos. 6 to 8, the successors-in-interest, sold the suit land to the Plaintiff by a registered deed of sale dated 03.08.1977 (Ext.- 25) for valuable consideration and was delivered the symbolic possession of the land and though the Defendant Nos. 1 to 5 were asked to attorn the Plaintiff as the landlord, they refused to accept the notice of such attornment sent by registered post. According to the Plaintiff, the Defendant No. 1, however, by operation of law, became the tenant under him. It has further been pleaded that since the Plaintiff required the suit land for his own purpose, notice dated 15.12.1977 [Ext.- 9(2)] was issued under registered post with A/D asking the Defendant Nos. 1 and 2 to quit and vacate the suit land and deliver the possession thereof by breaking and removing the houses standing thereon on expiry of 30.01.1978, copies of which were also sent to the Defendant Nos. 3 to 5 and while the Defendant No. 1 received the said notice, the other Defendants refused to accept the same. A fresh notice dated 04.09.1978 [Ext.- 18(2)] was issued by the plaintiff to the Defendant Nos. 3 to 5 and while the Defendant No. 1 received the said notice, the other Defendants refused to accept the same. A fresh notice dated 04.09.1978 [Ext.- 18(2)] was issued by the plaintiff to the Defendant Nos. 1 and 2 through his lawyer under registered post with A/D asking them to quit and vacate the possession of the suit land on expiry of 19.10.1978 and thus terminating the tenancy, which notice however was refused to be accepted by the Defendant No. 1. According to the Plaintiff since they have not vacated the suit land despite such notice, they became the trespasser and hence instituted the suit for their eviction as well as for recovery of arrear rent for the period from 03.08.1977 to 19.10.1978 as well as for compensation. 3. The Defendant Nos. 1 and 5 contested the suit filed by the Plaintiff by filing two separate written statements. The Defendant No. 1 in his written statement has contended that the suit is bad for non-joinder of Behari Mali @ Bheri as well as the heirs of Abdul Aziz and also the other tenants; the suit is bad for want of notice of ejectment as required under Section 11 of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (in short the 1955 Act) and that the Defendant No. 1 is protected under Section 5 of the said Act. It has further been pleaded that he took the suit land on rent from the original owner Abdul Aziz and immediately constructed three houses thereon, the main shop house with wooden structure and CI sheet roof having pucca floor and the other houses of semi permanent structures, which houses were subsequently improved in the year 1950-51 with the knowledge and permission of the original landlord as well as of the Municipal Board and as such protected under Section 5 of the 1955 Act. 4. In the written statement filed by the Defendant No. 5, it has been pleaded that he is in possession of the part of the suit premises, which was previously under occupation of the Plaintiff as a tenant under the Defendant No. 1. According to this Defendant, the Plaintiff on 12.10.1973 on receipt of a sum of Rs. 4. In the written statement filed by the Defendant No. 5, it has been pleaded that he is in possession of the part of the suit premises, which was previously under occupation of the Plaintiff as a tenant under the Defendant No. 1. According to this Defendant, the Plaintiff on 12.10.1973 on receipt of a sum of Rs. 500/- transferred his occupancy right of the house together with all furnitures and materials in his favour by executing a kacha deed on 12.09.1974 and delivered the possession and since then he is possessing the same by paying rent to the Defendant No. 1 and in which house he is carrying on the business of sweet meat shop. 5. The learned Trial Court on the basis of the pleadings of the parties, framed the following issues for consideration and decisions: 1) Whether the suit is maintainable? 2) Whether there is cause of action for the suit? 3) Whether the suit is bad for want of a valid notice? 4) Whether the suit is bad for non-joinder and misjoinder as alleged in the written statement? 5) Whether the Defendants are protected from eviction from the suit land under the provisions of Assam Non-Agricultural Urban Areas Tenancy Act, 1955 as alleged? 6) Whether the Defendant No. 1 is a defaulter for non-payment of rent as stated in the plaint? 7) Whether the Defendant Nos. 2 to 5 are sub-tenants? 8) Whether the Plaintiff is entitled to decree or prayed for in the plaint? 9) To what relief, the parties are entitled? 6. The learned Trial Court vide judgment and decree dated 31.05.1996 decreed the suit of the Plaintiff by deciding all the issues in his favour. The learned Trial Court has held that the valid notice under Section 11 of the 1955 Act was issued; that the Defendant No. 1 is a defaulter for non-payment of rent; that the Defendants are not protected from eviction from the suit land under Section 5 of the 1955 Act; that the original landlord did not permit the Defendant No. 1 to raise any permanent structure; that the structure raised being of bamboo and wood it doesn’t come within the definition of the permanent structure within the meaning of Section 3(d) of the 1955 Act and that the Defendant Nos. 2 to 5 are the sub-tenant under the Defendant No. 1. 7. 2 to 5 are the sub-tenant under the Defendant No. 1. 7. Being aggrieved, the successors-in-interest of Defendant No. 1 Pachuram Verma, instituted the Title Appeal No. 16/1996 in the learned First Appellate Court, challenging the judgment and decree passed by the learned Trial Court. The learned First Appellate Court upon hearing the learned Counsel for the parties vide judgment and decree dated 14.09.1998 allowed the appeal by setting aside the judgment and decree passed by the learned Trial Court decreeing the suit of the Plaintiff, by holding that the Plaintiff could not derive right, title and interest by virtue of purchase from the Defendant Nos. 6 to 8, there being other legal heirs of Abdul Aziz and in the absence of any transfer by such heirs or proof of partition amongst the heirs of the original owner Abdul Aziz; that the original Defendant No. 1 being admittedly a tenant under Abdul Aziz, the original landlord, and having raised the permanent structure within 5(five) years from the date of commencement of the tenancy, is protected under Section 5 of the 1955 Act from eviction. It has further been held that there was no valid notice issued, before institution of the suit, as required under Section 11 of the 1955 Act and the Defendant Nos. 2 to 5 are not sub-tenant of the Defendant No. 1. Hence the present appeal. 8. The appeal has been admitted for hearing vide order dated 23.12.1998 on the following substantial questions of law: 1) Whether the Defendants are estoppel from denying the right, title and interest of the Plaintiff to institute the suit as landlord when the Plaintiff derived the right, title and interest from the heirs of Abdul Aziz, who admitted the Defendants were the tenant of Abdul Aziz? 2) Whether the Defendants had raised permanent structure within the meaning of the Act of the original tenancy and are entitled to protection under Section 5 of the 1955 Act? 3) Whether the Defendants having sublet the suit land by inducting sub-tenants the Defendant Nos. 1 and 2 and the subtenants are entitled to claim protection under the Act? 4) Whether the Defendants not having paid rent to the Plaintiff are entitled to claim protection under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955? 9. 3) Whether the Defendants having sublet the suit land by inducting sub-tenants the Defendant Nos. 1 and 2 and the subtenants are entitled to claim protection under the Act? 4) Whether the Defendants not having paid rent to the Plaintiff are entitled to claim protection under the Assam Non-Agricultural Urban Areas Tenancy Act, 1955? 9. The Plaintiff/Appellant in the memorandum of appeal filed before this Court initially impleaded the deceased Defendant No. 1 and the Defendant No. 5, namely, Pachuram Verma and Haradhan Das, apart from other Defendants, as Respondents. The Appellant, thereafter, filed an application on 30.03.1999, which was registered and numbered as Misc. Case No. 63/1999, praying for correction of the names of the Respondents in the appeal, by impleading Smt Santosh Verma, Sri Mohanlal Verma, Sri Arjunlal Verma, Sri Rajkumar Verma, Smt. Malti Devi and Smt. Dropadi Devi in place of the deceased Defendant No. 1 /Respondent No. 1, Pachuram Verma and Smt. Priti Das, Sri Jai Das and Sri Vijaya Das, in place of deceased Defendant No. 5/Respondent No. 5, Haradhan Das. By order dated 08.04.1999 passed by this Court, the prayer made in the said Misc. application was allowed and accordingly they were made party Respondents in the present appeal as Respondent Nos. 1, 1(a) to 1(e) and 5, 5(a), 5(b), in place of Respondent Nos. 1 and 5, respectively. The Appellant/Plaintiff, however, did not implead all the legal heirs of the Defendant No. 1, Pachuram Verma, though all of them preferred Title Appeal No. 16/1996 before the learned First Appellate Court and left out one son, namely, Sri Chiranjilal Verma and another daughter, namely, Smt. Laxmi Devi, from the array of the Respondents, though they had filed the aforesaid Title Appeal before the learned First Appellate Court. 10. Non-impleadment of all the Appellants in Title Appeal No. 16/1996. namely, Sri Chiranjilal Verma and Smt. Laxmi Devi, one of the sons and daughters of the deceased Defendant No. 1, in the present appeal, gives rise to the question relating to the maintainability of the present appeal in the absence of said Sri Chiranjilal Verma and Smt. Laxmi Devi, who were also the Appellants before the learned First Appellate Court. 11. I have heard Mrs. B. Goyal, the learned Counsel appearing on behalf of the Appellant, and also Mr. O.P. Bhati, the learned Counsel appearing on behalf of the Respondent Nos. 11. I have heard Mrs. B. Goyal, the learned Counsel appearing on behalf of the Appellant, and also Mr. O.P. Bhati, the learned Counsel appearing on behalf of the Respondent Nos. 1, 1(a) to 1(e), on the substantial questions of law formulated as well as on the maintainability of the present appeal, in view of non-impleadment of all the legal heirs of the deceased Defendant No. 1 Pachuram Verma, who were die Appellants before the learned First Appellate Court. None appears for the other Respondents. 12. Mrs. Goyal, the learned Counsel for the Appellants, relating to the maintainability of the appeal in the absence of one of the sons and daughters of the Defendant No. 1, Pachuram Verma, has submitted that since the estate of the Defendant No. 1 has been adequately represented by other legal heirs, the appeal preferred by the Plaintiff cannot be dismissed on the ground of not making all the legal heirs of the said Defendant as party Respondents. According to the learned Counsel, the decree that has been passed by the learned Trial Court, in the event of allowing the present appeal by setting aside the judgment and decree passed by the learned First Appellate Court, still can be executed in the absence of the aforesaid two heirs of the Defendant No. 1. 13. Relating to the first substantial question of law formulated vide order dated 23.12.1998, Mrs. Goyal, the learned Counsel for the Appellant has submitted that it is being an admitted position of fact that the Plaintiff purchased the suit land from the legal heirs of its original owner Abdul Aziz, namely, the Defendant Nos. 6 to 8, has stepped into the shoes of landlord and the Defendant No. 1 became the tenant under him, who cannot dispute the title of the landlord, which in fact has not been done by them, and as such the finding of the learned First Appellate Court that by virtue of the purchase from the Defendant Nos. 6 to 8, the Plaintiff could not derive any right, title and interest in the absence of any partition and transfer by other legal heirs of Abdul Aziz, is not sustainable in law. 14. It has further been submitted by Mrs. 6 to 8, the Plaintiff could not derive any right, title and interest in the absence of any partition and transfer by other legal heirs of Abdul Aziz, is not sustainable in law. 14. It has further been submitted by Mrs. Goyal that the structures, even if found to have been raised by the Defendant No. 1 over the suit land within 5 (five) years from the date of commencement of the initial tenancy under the original landlord Abdul Aziz, from the nature of the structures made i.e. having bamboo post, it is evident that those are not 'permanent structures' as defined in Section 3(d) of the 1955 Act and as such the Defendant No. 1 is not protected under Section 5 of the said Act. Accordingly to the learned Counsel, the learned Court below ought not to have held that the structures raised by the Defendant No. 1 over the suit land are 'permanent structures' within the meaning of the Act and as such he is entitled to protection under Section 5thereof. 15. The learned Counsel referring to the judgment passed by the learned Trial Court has submitted that when the learned Trial Court has recorded the finding of fact relating to the induction of the Defendant Nos. 2 to 5 as subtenant under the Defendant No. 1, on the basis of the admission of the Defendant No. 1, the learned First Appellate Court ought not to have held that there was no sub-tenancy created by the Defendant No. 1, that too without discussing any evidences on record as well as without examining the pleadings of the parties, more particularly the pleadings of the Defendant No. 1 in the written statement. According to the learned Counsel since one of the conditions of the tenancy created in favour of the Defendant No. 1 was that he would not induct any sub-tenant, he has violated the condition of the tenancy by inducting sub-tenant and as such is evictable from the suit land on the ground of violation of the terms of tenancy. According to the learned Counsel since one of the conditions of the tenancy created in favour of the Defendant No. 1 was that he would not induct any sub-tenant, he has violated the condition of the tenancy by inducting sub-tenant and as such is evictable from the suit land on the ground of violation of the terms of tenancy. The learned Counsel further submits that in view of the proof of issuance of the valid notices dated 15.12.1977 [Ext.-9(2)], 04.09.1978 [Ext.- 18(2)] and service of the same on the Defendant No. 1, the learned First Appellate Court ought not to have disturbed the finding of the learned Trial Court relating to service of valid notice as required under Section 11 of the 1955 Act, that too by a single sentence that the notice of ejectment is bad in law, without discussing any evidence at all to that effect. 16. The learned Counsel further submits that the Issue No. 6, i.e. as to whether the Defendant is a defaulter for non-payment of rent, has also been decided by the learned Trial Court in favour of the Plaintiff after discussing the entire evidences on record, but the said finding has been disturbed by the learned First Appellate Court without discussing any evidence on record. According to the learned Counsel the learned First Appellate Court being the final Court on facts is required to discuss all the evidences on record, more so while reversing the judgment and decree passed by the learned Trial Court and in the instant case the same having not been done, the case may be remanded to the learned First Appellate Court for recording fresh findings after discussing all the evidences on record, as required under Order 41, Rule 31 of the Code of Civil Procedure, after setting aside the impugned judgment and decree passed. 17. Mr. Bhati, the learned Counsel appearing for the Respondent Nos. 1, 1(a) to 1(e) has submitted that the present appeal filed by the Appellant deserves to be dismissed on the ground that all the legal heirs of Pachuram Verma, who filed the appeal before the learned First Appellate Court, have not been arrayed as party Respondents, as the Appellant has left out one son and one daughter of said Pachuram Verma from being impleaded in the present appeal. According to the learned Counsel the decree passed by the learned First Appellate Court has attained its finality in so far as those two are concerned, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi, who had filed the Title Appeal along with the other heirs of Defendant No. 1 Pachuram Verma, [present Respondent Nos. 1, 1(a) to 1(e)], before the learned First Appellate Court. According to the learned Counsel, if the present appeal is entertained in their absence and the decree passed by the learned First Appellate Court is interfered with, that would lead to passing of two conflicting decrees. It has further been submitted that the Appellant even if gets a decree from this Court in the present appeal for eviction of the Respondent Nos. 1, 1(a) to 1(e), the said decree cannot be executed against other two heirs of Pachuram Verma, as the suit of the Plaintiff in so far as Sri Chiranjilal Verma and Smt Laxmi Devi, stands dismissed and the decree passed by the learned First Appellate Court attains its findity in so far as they are concerned. 18. Mr. Bhati has further submitted that since there are evidences on record to the effect that Pachuram Verma had other legal heirs apart from the Defendant Nos. 6 to 8, the learned First Appellate Court has rightly recorded the finding that the Plaintiff cannot acquire the title over the suit land by virtue of the purchase from the Defendant Nos. 6 to 8, where there is neither any sale effected by other heirs nor any partition of the land belonged to Pachuram Verma. 19. It has further been submitted that the learned First Appellate Court has rightly held that the Defendant No. 1 having raised the 'permanent structure' within the meaning of 1955 Act, within 5(five) years from the date of commencement of the initial lease, is protected under Section 5 of the said Act, when the Defendants could prove that such structures were raised with wooden post, pucca floor with C.I. sheet roof. 20. Relating to the allegation of sub-tenancy it has been submitted by the learned Counsel that the learned First Appellate Court has rightly held that the Defendant Nos. 20. Relating to the allegation of sub-tenancy it has been submitted by the learned Counsel that the learned First Appellate Court has rightly held that the Defendant Nos. 2 to 5 were not inducted as sub-tenant by the Defendant No. 1, when it is in the evidence that the Defendant No. 2 is a firm belonging to the Defendant No. 1, the Defendant No. 5 was inducted by the Plaintiff himself after vacating his house under his occupation as tenant and the Defendant Nos. 3 and 4 were also not the sub-tenant under the Defendant No. 1. The learned Counsel further submits that the Plaintiff also could not prove that there was a condition in the tenancy for not inducting any sub-tenant in respect of the suit land or any structure thereof by the Defendant No. 1, though it is the case of the Plaintiff that such a condition exist in the document of tenancy created by the original landlord Abdul Aziz. According to the learned Counsel in any case the Plaintiff could not prove the condition of such tenancy as well as its violation by the Defendant No. 1. 21. Mr. Bhati, the learned Counsel further submits that since the Defendant No. 1 is protected from eviction in view of the provisions contained in Section 5 of the 1955 Act, no decree for ejectment on the ground of non-payment of rent, even if passed, can be executed, within a period of 30 days from the date of the decree, if the tenant prays into the Court the amount payable under the said decree. In the instant case, there being no existing decree for ejectment passed on the ground of non-payment of rent, even if any rent is found to be due and payable, the same would definitely be paid by the Defendant No. 1 in the Court as required under Sub-section (3) of Section 5 of the 1955 Act. 22. The submissions of the learned Counsel for the parties received my due consideration and I also perused the judgments and decrees passed by the learned Courts below including the materials available on record. 23. 22. The submissions of the learned Counsel for the parties received my due consideration and I also perused the judgments and decrees passed by the learned Courts below including the materials available on record. 23. It appears from the judgment and decree passed by the learned Trial Court as well as the evidences as discussed and also the respective pleadings of the parties that the Defendant No. 1 was a tenant in respect of the suit land, initially under the original landlord Abdul Aziz. Some of the heirs of Abdul Aziz, namely, the Defendant Nos. 6 to 8, thereafter, on 03.08.1977 vide Ext.- 25 transferred the suit land in favour of the Plaintiff/Appellant. It is also in evidence that there was partition of land amongst the heirs of Abdul Aziz and the suit land fell into the share of Defendant Nos. 6 to 8, who transferred the land to the Plaintiff/Appellant. By virtue of such purchase, the Plaintiff/Appellant stepped into the shoes of the original landlord, namely, Abdul Aziz and became the landlord of the Defendant No. 1, in respect of the suit land. The Defendant No. 1, having claimed the protection under Section 5 of the 1955 Act, has accepted his position as tenant, and, hence, he cannot deny the title of the Plaintiff/Appellant. The finding of the learned First Appellate Court that the Plaintiff/Appellant did not derive any title by right to purchase vide Ext.- 25 is, therefore, erroneous and set aside. 24. The learned Trial Court decreed the suit of the Plaintiff/Appellant by holding that though there were constructions within 5(five) years from the date of commencement of the tenancy under the original landlord Abdul Aziz, such constructions are not 'permanent structure' within the meaning of the 1955 Act, which finding, however, has been reversed by the learned First Appellate Court. 25. It appears from the judgment passed by the learned First Appellate Court as well as by the learned Trial Court that the original tenancy was created by the original landlord Abdul Aziz vide Ext.- 26(A), dated 19.10.1944. It also appears from the judgment passed by the learned Trial Court that the Defendants could prove the assessment register of the Municipality as Ext.-Ka, wherefrom it appears that a house was built with bamboo and wooden posts, tin wall, CI sheet roof and pucca floor, within 5(five) years from the date of commencement of the tenancy. It also appears from the judgment passed by the learned Trial Court that the Defendants could prove the assessment register of the Municipality as Ext.-Ka, wherefrom it appears that a house was built with bamboo and wooden posts, tin wall, CI sheet roof and pucca floor, within 5(five) years from the date of commencement of the tenancy. The learned First Appellate Court has reversed the finding of the learned Trial Court by holding that such construction does not conform to the requirement of 'permanent structure' under Section 3(d) of the 1955 Act. 26. Section 3(d) of the 1955 Act defines 'permanent structure' as a structure made of cement-concrete, stone, brick, iron, aluminium, asbestos or wood or any combination of these materials. The proviso to the said Section stipulates that a building with bamboo or Ikra walls and thatched roof shall also be regarded as a permanent structure, if its frame is constructed of any of the materials mentioned in Clause (d) of Section 3. 27. It is evident from the Ext.-Ka, assessment register of the Municipality as well as the evidences as discussed by the learned Courts below that the structure was made with bamboo and wooden posts with tin wall, CI sheet roof and cement flooring. It is also in evidence that the Defendant No. 2 in whose name the house is assessed to tax by the Municipality, is the firm of Defendant No. 1, who has in fact built the house. It is also not the case of the Plaintiff that the said house was not built by the Defendant No. 1. The case of the Plaintiff, on the other hand, is that the house built does not conform the requirement of 'permanent structure' within the meaning of 1955 Act. Merely because the bamboo was also used as posts apart from the wooden posts, the structures made by the Defendants would not loose the character of 'permanent structure' within the meaning of Section 3(d) of the 1955 Act. Merely because the bamboo was also used as posts apart from the wooden posts, the structures made by the Defendants would not loose the character of 'permanent structure' within the meaning of Section 3(d) of the 1955 Act. The structures made by the Defendant No. 1, therefore, conforms the requirement of 'permanent structure' within the said provision of law and hence the learned First Appellate Court has rightly held that the Appellants before him are protected under Section 5of the 1955 Act, which gives the protection to a tenant from eviction provided he built within a period of 5(five) years from the date of tenancy, a permanent structure on the land of the tenant for residential or business purposes. In the tenancy agreement dated 19.10.1944 [Ext.- 26(A)] it was nowhere mentioned that the Defendants cannot raise any permanent structure, though initial tenancy was for 1(one) year, which was subsequently extended from time to time. The extension of the tenancy and acceptance of the rent thereof by the original landlord amounts to approval of making such construction by the Defendant No. 1, even if there was no stipulation in the original agreement creating tenancy allowing the Defendant No. 1 to raise permanent structure. 28. The learned Trial Court held the Defendant Nos. 2 to 5 as sub-tenants under the Defendant No. 1, which finding however has not been accepted by the learned First Appellate Court. According to the Plaintiff Appellant there is a condition in the tenancy agreement [Ext.-26(A)] dated 19.10.1944 for not inducting any sub-tenant by the Defendant No. 1. It also appears that the learned Trial Court has held the Defendant No. 1 to be a defaulter for non-payment of rent, which finding has also been disturbed by the learned First Appellate Court. It has also been held by the learned First Appellate Court that no valid notice under Section 11 of the 1955 Act was issued and served on the Defendants before institution of the suit. 29. The learned First Appellate Court without discussing any evidences on record has recorded the aforesaid findings, though the learned Trial Court after discussing the entire evidences on record decided the said questions of fact in favour of the Plaintiff/Appellant. 29. The learned First Appellate Court without discussing any evidences on record has recorded the aforesaid findings, though the learned Trial Court after discussing the entire evidences on record decided the said questions of fact in favour of the Plaintiff/Appellant. The learned First Appellate Court being the final Court on facts is required to discuss all the evidences on record, more so when any finding of the Trial Court is disturbed by the First Appellate Court, which has not been done in the instant case. 30. Having held that the learned First Appellate Court has reversed the finding of the learned Trial Court relating to sub-tenancy, defaulter and issuance and service of notice under Section 11 of the 1955 Act, the case is required to be remanded to the learned First Appellate Court to decide the said issues relating to the facts. But in the instant case since the question relating to the maintainability of the appeal, in the absence of all the legal heirs of Pachuram Verma, who have filed Title Appeal No. 16/1996 before the learned First Appellate Court and in whose instance the judgment and decree dated 31.05.1996 passed by the learned Trial Court in Title Suit No. 2/1979 has been set aside by the learned First Appellate Court, requires determination, before passing such order for remand, I shall now proceed to decide the said question of maintainability of the appeal. 31. As noticed above, the present Respondent Nos. 1, 1(a) to 1(e) as well as Sri Chiranjilal Verma and Smt. Laxmi Devi, another son and daughter of Pachuram Verma, preferred Title Appeal No. 16/1996 before the learned First Appellate Court, being the legal heirs of Pachuram Verma, challenging the judgment and decree passed by the learned Trial Court in Title Suit No. 2/1979 against Pachuram Verma, their predecessor-in-interest. The said appeal has been allowed vide judgment and decree dated 14.09.1998 by setting aside the judgment and decree passed by the learned Trial Court decreeing the suit of the Plaintiff. The Plaintiff/Appellant, however, initially filed this appeal against a dead person, namely, Pachuram Verma, but subsequently on the basis of his application being Misc. Case No. 63/1999 impleaded only the present Respondent Nos. The Plaintiff/Appellant, however, initially filed this appeal against a dead person, namely, Pachuram Verma, but subsequently on the basis of his application being Misc. Case No. 63/1999 impleaded only the present Respondent Nos. 1, 1(a) to 1(e) in place of Pachuram Verma, the original Defendant No. 1 in the suit, without, however, impleading said Sri Chiranjilal Verma and Smt. Laxmi Devi as party Respondents, though they were also the Appellants before the learned First Appellate Court. The said two persons, who are also the legal heirs of Pachuram Verma, are not party to the present appeal and no application till date has been filed by the Plaintiff/Appellant to implead them as Respondents though this second appeal is pending since the year 1998 i.e. almost for 12 years. 32. Under Order 22, Rule 4(1) of the Code of Civil Procedure, where one of two or more Defendants dies and the right to sue does not survive against the surviving Defendant or Defendants alone, or a sole Defendant or sole surviving Defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased to be made a party and shall proceed with the suit. Sub-rule (3) of Rule 4 provides that where within the time limited by law no application is made under Sub-rule (1), the suit shall abate as against the deceased Defendant. Rule 11 of Order 22 provides that the provision of Order 22 shall also apply to appeals. It also provides that the word "Plaintiff' appears in Order 22 shall include an Appellant, the word "Defendant" a Respondent, and the word "suit" an appeal. 33. In the case in hand, the learned Trial Court passed the decree in favour of the Plaintiff/Appellant and against the original Defendant No. 1, namely, Pachuram Verma, who, however, died thereafter. All the legal heirs of said Pachuram Verma, thereafter, preferred the Title Appeal before the learned First Appellate Court challenging the judgment and decree passed by the learned Trial Court. All those legal heirs, therefore, stepped into the shoes of the original Defendant No. 1. The learned First Appellate Court has set aside the judgment and decree passed by the learned Trial Court. The Plaintiff/Appellant, however, in the present appeal did not implead two legal heirs of Pachuram Verma, namely, Sri Chiranjilal Verma (son) and Smt. Laxmi Devi (daughter). All those legal heirs, therefore, stepped into the shoes of the original Defendant No. 1. The learned First Appellate Court has set aside the judgment and decree passed by the learned Trial Court. The Plaintiff/Appellant, however, in the present appeal did not implead two legal heirs of Pachuram Verma, namely, Sri Chiranjilal Verma (son) and Smt. Laxmi Devi (daughter). Hence the decree passed by the learned First Appellate Court in so far as they are concerned attains its finality, there being no challenge to the decree passed in their favour, by the Plaintiff/Appellant, though the Plaintiff/Appellant has challenged the said decree passed by the learned First Appellate Court in so far as the other legal heirs of Pachuram Verma, namely, the Respondent Nos. 1, 1(a) to 1(e). As held by the Apex Court in State of Punjab v. Nathu Ram AIR 1962 SC 89 , in Sri Chand and Ors. v. M/s. Jagdish Prasad Kishan Chand and Ors. AIR 1966 SC 1427 , and in Ramagya Prasad Gupta and Ors. v. Murli Prasad and Ors. AIR 1972 SC 1181 , to decide the question as to whether an appeal abates for non-impleading all the legal heirs of the Defendant as party Respondents, the Court is to apply three tests, namely, (a) when the success of the appeal may lead to the Court's coming to a decision which may be in conflict with the decision between the Appellant and the deceased Respondent and, therefore, it would lead to the Court's passing a decree which will be contradictory to the decree which had become final with respect to the same subject matter between the Appellant and the deceased Respondent; (b) when the Appellant could not have brought the action for the necessary relief against those Respondents alone who are still before the Court and (c) when the decree against the surviving Respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed. It has further been held that these three tests are not cumulative test and even if one is satisfied, the Court may dismiss the appeal. 34. It has further been held that these three tests are not cumulative test and even if one is satisfied, the Court may dismiss the appeal. 34. In the instant case, as noticed above, the decree passed by the learned First Appellate Court in so far as Sri Chiranjilal Verma and Smt. Laxmi Devi, two of the legal heirs of Pachuram Verma, who also preferred the said Title Appeal No. 16/1996 before the learned First Appellate Court, has attained its finality, that is to say, the suit of the Plaintiff in so far as they are concerned, stands dismissed. The Plaintiff/Appellant, even if, is successful in the present appeal in getting a decree in his favour, that decree would be contradictory to the decree which has become final in respect of the aforesaid two heirs, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi. That apart without bringing all the legal heirs of the deceased Defendant No. 1 on record, the Plaintiff/Appellant could not have prayed for a decree. The decree, even if passed, against the present Respondent No. 1, 1(a) to 1(e), by allowing the appeal, it would be ineffective as it cannot be successfully executed, in view of the finality of the decree passed by the learned First Appellate Court dismissing the suit on the Plaintiff in so far as other two heirs of Pachuram Verma, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi. The contention of the Appellants that the estate of the original Defendant No. 1 Pachuram Verma is adequately represented by other heirs, namely, the Respondent Nos. 1, 1(a) to 1(e) and hence the appeal cannot be held to be not maintainable in absence of two other legal heirs, is not acceptable when those two heirs also preferred the appeal before the learned First Appellate Court and got a decree in their favour. 35. In view of the above, I am of the view that the appeal preferred by the Appellant, in the absence of aforesaid two heirs of Pachuram Verma, namely, Sri Chiranjilal Verma and Smt. Laxmi Devi, is not maintainable, as no decree in the present appeal in their absence can be passed by this Court. 36. The appeal filed by the Appellant, therefore, stands dismissed. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost throughout. 37. 36. The appeal filed by the Appellant, therefore, stands dismissed. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost throughout. 37. The Registry is directed to send down the records. Appeal dismissed