JUDGMENT : Nishita Mhatre, J.: Aggrieved by the decision of the City Civil Court, Calcutta, in Suit No.1766 of 2001 the appellant has preferred this appeal. By its order dated 30th January, 2009 the City Civil Court decreed the suit for eviction filed by the Respondent No.1. Both the appellant and Respondent No.2 have been directed to hand over the vacant possession of the suit premises within 60 days of the date of the order. For the purpose of convenience the parties will be referred to as they were before the Trial Court. 2. In brief, the case of the plaintiff is that he had let out a shop room being No.S-2 in premises No.32, Ezra Street, P.S. Hare Street, Kolkata – 700 001 to one Dawood Kaseem. He was inducted as a monthly tenant in the year 1950. The plaintiff received monthly rent from Dawood Kaseem for these premises till the month of April, 2001. According to the plaintiff, the defendants were the employees of Dawood Kaseem. As the rent was not paid after April, 2001, the plaintiff enquired with the defendants about the whereabouts of Dawood Kaseem. He was informed that Dawood Kaseem had expired many years earlier in his native village. The plaintiff therefore requested the defendants to inform him the names of the legal heirs of Dawood Kaseem and their whereabouts. The defendants however did not respond. The plaintiff therefore sought to evict the defendants by issuing a notice, as according to him they were in illegal and wrongful possession of the suit premises, being trespassers. The defendants claimed the right of tenancy in the suit premises though no proceedings were filed by them. As the defendants did not vacate the suit premises, the plaintiff filed the aforesaid suit for eviction. 3. The defendants contested the suit and contended in the written statement inter alia (i) that the suit was barred by limitation; (ii) that it was barred by Section 6 of the Specific Relief Act, 1963; (iii) that the suit was barred for misjoinder of parties as the other co-owners had not been impleaded as plaintiffs; (iv) that the defendants were the legal heirs and representatives of Dawood Kaseem who was also known as Syed Mohammed Latif; (v) that the defendants being the sons of Dawood Kaseem had inherited the tenancy and were therefore not trespassers. 4. 4. The parties led evidence in support of their respective contentions. While the plaintiff examined himself and another witness, the defendants led the evidence of Defendant No.1 and another witness. The defendants attempted to establish that they were the sons of Dawood Kaseem by producing several documents on record, including the rent receipts, death certificate of the erstwhile tenant and a copy of the higher secondary passing certificate of Defendant No.1. 5. After considering the pleadings and the nature of evidence on record, the Trial Court concluded that the defendants were not able to prove that Dawood Kaseem and Syed Mohammed Latif was the same person. The Trial Court held that Dawood Kaseem was not the father of the defendants and therefore they could not have inherited the tenancy rights in respect of the suit premises. The defendants were held to be trespassers. The suit was, therefore, decreed against them. 6. Mr. Gopal Chandra Ghosh, the learned Counsel for the appellant/defendant No.1 urged that the Trial Court had failed to consider certain questions of law which would indicate that the suit was not maintainable. According to Mr. Ghosh, when the plaintiff had declared that Dawood Kaseem had died without leaving behind any heirs, it was incumbent on the plaintiff to make the State a party to the suit as the suit premises had escheated to the State. He submitted that a tenancy right in any premises is heritable. Therefore, if there are no heirs, the State would automatically become the tenant in the premises. A property of a person who dies intestate without leaving behind any heirs would revert to the State in view of Article 296 of the Constitution of India. Mr. Ghosh submitted that the doctrine of escheat applied to Mohammedan as well. Therefore, urged Mr. Ghosh that as the State was not arrayed as a party to the suit, it was not maintainable. However, while making the aforesaid submission, Mr. Ghosh conceded that this plea was not raised by the defendants at any point of time before the Trial Court. Such a ground has not been raised before the Appeal Court in the memo of appeal either. However, Mr. Ghosh argued that this being a question of law it can be raised at any point of time either before the Trial Court, the Appeal Court or indeed before the Supreme Court. The next contention of Mr. Such a ground has not been raised before the Appeal Court in the memo of appeal either. However, Mr. Ghosh argued that this being a question of law it can be raised at any point of time either before the Trial Court, the Appeal Court or indeed before the Supreme Court. The next contention of Mr. Ghosh was that the plaintiff had no title to the suit property, therefore could not have filed the suit. He then submitted that in any event, the defendants were the legal heirs and representatives of Dawood Kaseem, being his sons. Therefore, they could not have been declared to be trespassers by the Trial Court. The learned Counsel also submitted that the suit was barred by limitation in view of the fact that Dawood Kaseem had expired in 1971 and the suit had been filed only in 2001. Mr. Ghosh pointed out that the plaintiff had accepted the rent paid even after Dawood Kaseem’s death. Therefore, the defendants could not be evicted from the suit premises. Mr. Ghosh reiterated the contentions in the written statement and submitted that the Plaintiff was not he owner of the suit premises. 7. Mr. Sabyasachi Bhattacharya, the learned Counsel for the respondent No.1/plaintiff submitted that if the appellant contends that he was the son of Dawood Kaseem and his legal heir and representative then the question of escheat would not arise and there was no need for the State to be a party to the litigation. The learned Counsel submitted that the defendants cannot be permitted to approbate and reprobate as they had on the one hand claimed tenancy as the legal heirs of Dawood Kaseem, the erstwhile tenant and on the other, submitted that the State was a necessary party, since Dawood Kaseem had died intestate without leaving behind any legal heirs. The learned Counsel then urged that the question of limitation does not arise in the present case as the plaintiff became aware of the death of Dawood Kaseem only in 2001, after which he immediately filed the present suit. The learned Counsel then submitted that the defendant had never contended that the plaintiff had no right, title or interest in the suit property and had accepted the plaintiff as the owner of the suit property in their written statement. The learned Counsel then submitted that the defendant had never contended that the plaintiff had no right, title or interest in the suit property and had accepted the plaintiff as the owner of the suit property in their written statement. He then submitted that when there are no pleadings questioning the plaintiff’s title to the suit property, the defendants cannot be permitted to raise this issue in an appeal. He relied on the provisions of Section 116 of the Indian Evidence Act to submit that since the ownership of the suit premises had been accepted by the defendant it was not open to them to challenge the same in these proceedings. He relied on certain judgments to submit that the landlord is not bound to give notice to the Government or to ascertain whether there are any legal heirs of the tenant as the property would revert to the landlord and cannot be escheated to the Government. According to the learned Counsel, under Section 2(h) of the West Bengal Premises Tenancy Act, 1956, the concept of tenancy is restricted and a tenant can be only one who falls within the aforesaid definition. 8. After perusing the impugned judgment we are of the view that the finding of the Trial Court that the suit is not barred by limitation is correct and must be accepted. The plaintiff became aware of the death of the tenant Dawood Kaseem only in the year 2001 and therefore, the suit filed by the plaintiff in the same year was not barred by limitation. 9. We also concur with the view of the Trial Court that there was no relationship between Dawood Kaseem and the defendants. The contention of the defendants that Dawood Kaseem was the same person as Syed Mohammed Latif has not been proved. The agreement of tenancy was placed before the Trial Court indicating that Dawood Kaseem had been inducted as a tenant in the suit premises for the purposes of carrying on a business in the name and style of Bombay Electric and Engineering Works. The agreement does not indicate in any manner that Dawood Kaseem was also known as Syed Mohammed Latif. The defendants placed reliance on certain documents which were produced before the Trial Court in support of their contention that Dawood Kaseem was also known as Syed Mohammed Latif. The agreement does not indicate in any manner that Dawood Kaseem was also known as Syed Mohammed Latif. The defendants placed reliance on certain documents which were produced before the Trial Court in support of their contention that Dawood Kaseem was also known as Syed Mohammed Latif. A death certificate, which was produced before the Trial Court, issued by the Calcutta Municipal Corporation on 31st August, 2001 mentions the name of the deceased as Sayed Mohd Latif @ Dawood Kasim. The date of death in the certificate has been mentioned as 13th January, 1971 and the address is stated to be 75, Phears Lane which is the same as the address mentioned in the tenancy agreement. From this certificate it is apparent however that it was obtained only on 31st August, 2001. The notice for ejectment had been issued initially on 2nd April, 1983. However, the plaintiff did not act on this notice. No intimation was sent to the plaintiff after this notice was issued for eviction that Dawood Kaseem had died. The plaintiff therefore continued to receive rent in respect of the premises. However, after April, 2001 the defendants stopped paying rent, after which the plaintiff learnt about the death of Dawood Kaseem. The plaintiff then issued a letter for eviction of the defendants since the tenancy had ceased upon the death of the tenant who died without leaving behind any heirs. The suit has been filed on 17th October, 2001. The defendants were obviously aware that they were no longer permitted to continue in the suit premises. In fact in April, 2001 when the plaintiff learnt about the death of Dawood Kaseem, he had requested the defendants on several occasions to supply him with the information regarding the heirs of Dawood Kaseem. On being assured that they would do so, the plaintiff took no action till he filed the suit in October, 2001. The death certificate has obviously been procured in order to defend the impending suit by the plaintiff. 10. Another document relied on by the defendants in order to support their claim that Dawood Kaseem was their father is a certificate issued by the Board of Secondary Education, West Bengal, certifying that Syed Mohammed Atique, i.e., the appellant herein, was the son of Syed Mohammed Latif and had passed the examination as a private candidate. There is no mention of the name of Dawood Kaseem. There is no mention of the name of Dawood Kaseem. Therefore, this certificate does not assist the defendants in any manner. All the rent receipts which have been produced on record indicate that the receipts are in the name of Dawood Kaseem. 11. We agree with the view of the learned Trial Court that the defendants have failed to prove that Dawood Kaseem was their father. The learned Trial Court has, by detailed discussion of all the documents produced, drawn this conclusion. 12. The contention of Mr. Ghosh that the plaintiff was not the landlord is not substantiated by the evidence on record. The tenancy agreement, according to him was executed between Dawood Kaseem and Todi Properties Limited in 1969. It was signed by the Director of the company. The plaintiff claimed that he had purchased the property in 1975-76 from Todi Properties Limited and therefore was entitled to maintain the suit. Mr. Bhattacharya has rightly submitted that the ownership of the plaintiff cannot be questioned by the defendants at this stage because they had in fact admitted in their written statement that the plaintiff was one of the co-owners of the property under litigation. The defendants’ contention in the written statement was that other co-owners ought to have been parties to the litigation and therefore the suit should be dismissed for non-joinder of parties. This admission in the written statement would indicate that the defendants had accepted the ownership of the plaintiff of the suit premises. It is well settled now that one co-owner of the premises can institute a suit for eviction. Therefore the contention of Mr. Ghosh that the suit was not maintainable because the plaintiff was not the owner is without substance. In any event under Section 116 of the Indian Evidence Act the person claiming through a tenant being a licensee of the person in possession cannot be permitted to deny the title of the person to such possession when the licence was given, the occupant is estopped from questioning the title of the landlord. 13. We will now consider the argument of Mr. Ghosh that the suit was not maintainable as the tenancy has escheated to the State and therefore the State ought to have been made a party to the suit as a tenant. According to Mr. Ghosh the landlord cannot take action against the trespassers unless a tenant is made a party. 13. We will now consider the argument of Mr. Ghosh that the suit was not maintainable as the tenancy has escheated to the State and therefore the State ought to have been made a party to the suit as a tenant. According to Mr. Ghosh the landlord cannot take action against the trespassers unless a tenant is made a party. The failure of the plaintiff to join the State as a defendant tenant since the property had escheated to it should result in the dismissal of the suit, according to Mr. Ghosh. This defence has not been raised by the defendants in their written statement, obviously because they claimed that they were the legal heirs and representatives of Dawood Kaseem. Therefore they could not have contended that the suit property is escheated to the State. No ground regarding escheat has been raised in the present appeal. 14. The question now arises whether the appellant should be permitted to contend, at this stage, that the property having escheated to the Government, it was a necessary party in the suit and as it was not joined as a defendant, the suit must fail. Article 296 of the Constitution of India provides that any property in the territory of India which would have accrued to the ruler of an independent State by escheat or lapse or as bona vacantia for want of a rightful owner shall if it is the property situate in a State, vest in such State, and in any other case in the Union of India. It is well settled that escheat is an incident of sovereignty pursuant to which property vesting in the Government in the absence of an heir or successor of the owner of the property. A claim of escheat has to be proved rigorously and the onus lies heavily upon the person who claims escheat. It operates only in the absence of any heirs of a person who dies intestate. Mr. A claim of escheat has to be proved rigorously and the onus lies heavily upon the person who claims escheat. It operates only in the absence of any heirs of a person who dies intestate. Mr. Ghosh has placed reliance on the judgments in the case of Mannalal Serowgie v. Ishwariprasad Jain And Anr reported in AIR 1966 Cal 447 , Phuman Singh Prem Singh v. State of Patiala & Anr reported in AIR 1961 Punjab 200 and Narendra Bahadur Tandon v. Shankar Lal reported in (1980) 2 SCC 253 in support of his contention that since a tenancy right is heritable, the property of an intestate dying without leaving behind any lawful heirs passes to the Government by escheat or as bona vacantia. The property escheat is applicable to the tenancies as well. However in State of Bihar & Ors. v. Sri Radha Krishna Singh & Ors reported in AIR 1983 SC 684 the Supreme Court has observed thus: “270. It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the appellant to prove the absence of any heir of the respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the plaintiffs-respondents. Even if they succeed in showing that the plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the plaintiffs’ claim would lead to the irresistible inference that there is no other heir who could at any time come forward to claim the properties.” 15. In the case of Milanmoyee Chatterjee & Ors. v. Panchugopal Sadhukhan & Anr. in Appeal from Appellate Decree No. 141 of 1999 decided on 28th September, 2001 a learned single Judge of this Court considered whether the decree passed against the original tenant was binding on the estate of the tenant. In the case of Milanmoyee Chatterjee & Ors. v. Panchugopal Sadhukhan & Anr. in Appeal from Appellate Decree No. 141 of 1999 decided on 28th September, 2001 a learned single Judge of this Court considered whether the decree passed against the original tenant was binding on the estate of the tenant. The landlord in that case had inserted a notice in a newspaper requesting the legal heirs of the tenant to claim the tenancy on the death of the tenant. Nobody claimed this tenancy. The Court, on the basis of material on record, held that the tenancy accrued to the State by escheat or lapse or as bona vacantia for want of the tenant’s legal heirs or representatives. The suit was initiated by the landlord for eviction by making the Administrator General of West Bengal as a party in the suit. According to Mr. Ghosh this indicates that the State must be made a party to the dispute between a landlord and a tenant if it is found that the tenant had expired intestate and without leaving behind any legal heirs. 16. Mr. Bhattacharya has argued that the West Bengal Premises Tenancy Act, 1956 which is a special legislation would prevail over the doctrine of escheat. He submitted that under Section 2(h) of the Act the term ‘tenant’ has been defined. He pointed out that in the event of a tenant’s death such of his heirs who were ordinarily residing with him at the time of his death are to be considered to be tenants. The definition being exhaustive does not mention the principle of escheat. Mr. Bhattacharya has argued that in any event a licensee of the premises cannot claim that he should not be evicted because the property is escheated to the Government. 17. We are convinced that in the present case the appellant cannot be permitted to raise the argument regarding escheat and non-maintainability of the suit on this ground. This is because the argument is diametrically opposite to the stand taken by the defendant in their written statement, namely, that they were heirs of the tenant, i.e., Dawood Kaseem. This contention is not merely an alternative plea taken at this stage of hearing of the appeal. But is a mutually destructive contention raised by the appellant. This is because the argument is diametrically opposite to the stand taken by the defendant in their written statement, namely, that they were heirs of the tenant, i.e., Dawood Kaseem. This contention is not merely an alternative plea taken at this stage of hearing of the appeal. But is a mutually destructive contention raised by the appellant. Whether there were other heirs or not was probably not ascertained by the plaintiff as the defendants insisted that they were the legal heirs and representatives of Dawood Kaseem. In any event it is a question of fact which would have to be established by evidence. The rigours of escheat are applicable only when there is undeniable evidence on record about the non-existence of the legal heirs of the tenant. Once the defendants failed to prove their relationship with the erstwhile tenant they were liable to be evicted. 18. Having considered the issues raised before the Trial Court, we are of the view that the Trial Court has not committed any error in decreeing the suit. The appeal therefore fails. The order of the Trial Court is confirmed. No order as to costs. 19. The occupational charges which have already been deposited by the appellant in the Trial court may be withdrawn by the Respondent No.1. 20. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.