JUDGMENT : (Siddhartha Roy Chowdhury, J.) 1. Challenge in this appeal is to the judgement and decree passed by learned Judge, 4th Bench, City Civil Court at Calcutta in Title Appeal No. 14 of 2018, reversing thereby the judgement and decree dated 27th November, 2017 passed by learned 6th Bench of Presidency Small Causes Court, Calcutta in Ejectment Suit No. 1079 of 2002 as well as order dated 25th July, 2019, rejecting thereby the cross-objection to the decree. 2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court. 3. Briefly stated, by executing a deed of settlement on 19th February, 1933(Vide order dated 19.09.2023.), one Harak Chand Beljee settles the premises nos. 37, 38 and 39 of Ezra Street, Kolkata-700001 upon the trust. One Baijnath Choubey was inducted as a tenant in respect of three rooms, one showcase on the ground floor and seven rooms on the first floor of the premises nos. 37, 38 and 39 of Ezra Street, Kolkata-700001 at monthly rental of Rs. 456/- payable according to English Calendar month. The tenancy stood in the name of M/s Baijnath Choubey and Co. Baijnath Choubey died leaving behind a Will dated 24th September, 1925 by which he created a trust and appointed trustees or their survivors as guardian of his son and to carry on his said business M/s Baijnath Choubey and Company for the benefit of his heirs and legal representatives. The trustees accordingly, took charge of the said business and carried on the same. On or about May, 1984 while the trustees were carrying out the said business, the plaintiffs came to know for the first time that the family of said Baijnath Choubey was extinct, there was no heir or survivor of Baijnath Choubey. The trustees of the trust created by Harak Chand Beljee came to know that Baijnath Choubey died in the 1929, his wife pre-deceased him, his son had died in the year 1949, widow daughter, who did not have any issue was dead and accordingly the trust created by Baijnath Choubey by the said Will ceased to exit. The trustees of the trust created by Harak Chand Beljee came to know that Baijnath Choubey died in the 1929, his wife pre-deceased him, his son had died in the year 1949, widow daughter, who did not have any issue was dead and accordingly the trust created by Baijnath Choubey by the said Will ceased to exit. It is further contended by the plaintiffs that Title Suit No. 1294 of 1984 was filed previous to the filing of the Title Suit No. 1079 of 2002 and in the said suit the plaintiffs came to know that the trustees of the trust created by Baijnath Choubey, wrongfully and/or illegally formed a partnership with two other persons namely, Sarbottam Das Mundra and Chetan Das Mundra. The said partnership firm started carrying on business under the name and style of Baijnath Choubey and Company. The plaintiffs instituted the suit being Title Suit No. 230 of 1991 for declaration of title of the plaintiffs and permanent injunction restraining Sarbottam and Chetan Das Mundra from entering into or occupying premises in the name of alleged partnership. The Title Suit being No. 230 of 1991 was instituted without determining the tenancy of M/s Baijnath Choubey and Company after serving a notice to quit as provided in Section 13 (6) of the West Bengal Premises Tenancy Act, 1956 and M/s Baijnath Choubey and Company was not even made a party in the said suit. The suit was withdrawn with the leave of the Court to file afresh on the same cause of action. It is further case of the plaintiff that plaintiff inducted Baijnath Choubey as tenant in respect of the suit premises, and rent receipt was issued in the name of M/s Baijnath Choubey and Company, a proprietary firm. As the said tenant illegally and wrongfully sublet/assigned and/or parted with possession of the said tenanted premises to Sarbottam Das Mundra and Chetan Das Mundra, who are in wrongful possession of the suit premises, the tenancy of the defendant was terminated by a notice to quit dated 22nd July, 1994. It is adverted that the defendants are also liable to be evicted because of their failure to pay rent to the plaintiffs since April, 1984. 4. It is adverted that the defendants are also liable to be evicted because of their failure to pay rent to the plaintiffs since April, 1984. 4. It is the specific case of the defendants, who contested the suit by filing written statement, denying all material allegation contending, inter alia, that the plaintiff acknowledging the existence of Trust created by Baijnath Choubey, filed T.S. 1294 of 1984 against the tenant. It is contended that the tenant did not sublet, assign or part with possession of the suit premises to Sarbottam Das Mundra and Chetan Das Mundra as alleged. The business under the style M/s Baijnath Choubey and company, owned by Baijnath Choubey and subsequently looked after by the trustees, was converted into a partnership business and for all intent and purpose “Baijnath Coubey and Company” is the tenant under the plaintiffs. The defendants further contended that the trustees managing the business of M/s Baijnath Choubey and Company entered into a partnership with Chetan Das Mundra and Sarbottam Das Mundra on 30th April, 1984. The defendants prayed for dismissal of the suit. 5. Learned Trial Court after considering the pleadings of the parties framed several issues and after recording the evidence laid by the parties was pleased to dismiss the suit. 6. Aggrieved plaintiffs challenged the said judgement of learned Trial Court in appeal being Title Appeal No. 14 of 2018. Learned First Appellate Court accepted the appeal and granted a decree for recovery of Khas possession against the defendants after setting aside the judgement of learned Trial Court with a specific finding that there was subletting of the suit premises by the defendants. The said judgement of learned First Appellate Court is the subject matter of this appeal. Whether on the facts and in the circumstances of the case the suit was liable to be dismissed for non-joinder of necessary parties? 7. From the attending facts of the case and from the cause title it appears that the suit was filed in the name of Baijnath Choubey and Company. It is admitted by the plaintiffs that Baijnath Choubey, since deceased, was inducted as tenant and tenancy was in the name of M/s Baijnath Choubey and Company, which was a proprietary business. 8. Mr. It is admitted by the plaintiffs that Baijnath Choubey, since deceased, was inducted as tenant and tenancy was in the name of M/s Baijnath Choubey and Company, which was a proprietary business. 8. Mr. Probal Kumar Mukherjee, learned Senior Counsel for the appellant submits that upon plain reading of the pleadings of the plaintiffs/respondents it is evident that Baijnath Choubey was the proprietor of the business under the name and style of M/s Baijnath Choubey and Company. It is further admitted that Baijnath Choubey during his lifetime created a trust by Will for carrying on the business of M/s Baijnath Choubey and Company for the benefit of his heirs and legal representatives. According to Mr. Mukherjee, the plaintiffs admittedly received rent from the tenants till April, 1984, while Baijnath Choubey died in the year 1929. He was predeceased by his wife and his son died in the year 1949. 9. The trust created by Baijnath Choubey while looking after the business under the style M/s Baijnath Choubey and Company entered into a partnership business with the Mundras. Since M/s Baijnath Choubey and Company being trade name cannot be considered to be a juristic person, a suit is not maintainable in absence of either the trustees who were looking after the business of Baijnath Choubey or without impleading the partners, pursuant to the partnership entered into by and between the trustees managing the business of M/s Baijnath Choubey and Company and the other partners Sarbottam Das Mundra and Chetan Das Mundra. The plaintiff/respondent did not comply with the provision of Order XXX of the Code of Civil Procedure and the provision of Order XXI of the Code of Civil Procedure was also not followed by the plaintiff. Therefore, without complying with the provision of Order XXX the plaintiff could not have proceeded with the suit for eviction of a partnership firm. At least the plaintiff had the obligation to bring the suit in the name of the trustees following the procedure laid down under Order XXXI of the Code of Civil Procedure. To buttress his point Mr. Mukherjee, learned Senior Counsel makes me go through the statutory provision of Order XXX Rule 1, 2, 3, 5, 7 and Rule 10 of the Code of Civil Procedure. 10. It is further contended by Mr. To buttress his point Mr. Mukherjee, learned Senior Counsel makes me go through the statutory provision of Order XXX Rule 1, 2, 3, 5, 7 and Rule 10 of the Code of Civil Procedure. 10. It is further contended by Mr. Mukherjee that learned First Appellate Court passed the decree for eviction of M/s Baijnath Choubey and Company on the ground of subletting without the required evidence that the trustees being the tenant parted with possession of the property in suit and gave up control over the suit property in favour of the alleged sub-tenant. According to Mr. Mukherjee, learned Senior Counsel, in absence of any evidence learned First Appellate Court could not have passed the judgement impugned. To buttress his argument Mr. Mukherjee relies upon the decision of Hon’ble Supreme Court in DIPAK BANERJEE VS. LILABATI CHAKRABORTY reported in (1987) 4 SCC 161 wherein it is held:- “7. The question in this case is whether the alleged sub- tenant was in exclusive possession of the part of the premises and whether the tenant had retained no control over that part of the premises. There is no evidence on the fact that the alleged sub-tenant was in exclusive occupation of any part of the premises over which the tenant had not retained any control at all. On this aspect neither was there any pleading nor any evidence at all. No court gave any finding on this aspect at all. In that view of the matter one essential ingredient necessary for a finding, the case of sub-tenancy has not been proved. If that is so, the trial court, the first appellate court and the High Court were in error in holding that the sub-tenancy was proved. 9. There is another aspect of the matter, i.e., the payment of rent for sub-tenancy or consideration for sub-tenancy. Undoubtedly the alleged sub-tenant rendered certain services to the tenant but can the same be considered as rent under the Rent Act? Section 14(1) of the said Act prohibits sub- tenancy and it was pointed out before us that receipt of service in lieu of the occupation of a part of the premises as a Iicensee did not amount to payment or receipt of rent. Sub-tenancy as such is not defined in the Act. Section 14(1) of the said Act prohibits sub- tenancy and it was pointed out before us that receipt of service in lieu of the occupation of a part of the premises as a Iicensee did not amount to payment or receipt of rent. Sub-tenancy as such is not defined in the Act. The sub- tenancy under the Transfer of Property Act, 1882 is governed by section 105 of the said Act and it defines sub-leases as a lease of immovable property as a transfer of 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.” 11. Mr. Mukherjee also relies upon the decision of Hon’ble Apex Court in the case of GURUBACHAN SINGH AND ORS. VS. RAM NIWAS reported in 2006 5 SCC 296 wherein Hon’ble Apex Court held :- “A person alleged to be sub-tenant must be shown to be in exclusive possession of the premises over which the main tenant has no control. That apart in order to prove the sub-tenancy it is to be proved that right to occupy the premises must be in lieu of payment to some compensation or rent.” 12. In this present case, it is contended, there is no such evidence. Therefore, according to Mr. Mukherjee, the finding of learned First Appellate Court is based on no evidence and on that score as well the judgement should be set aside. 13. Refuting such contention of Mr. Mukherjee, Mr. Saptangsu Basu, learned Senior Counsel representing the respondents submits that the issue of maintainability of the suit, as raised by the appellants in the second appeal cannot be reopened, being barred by principle of res-judicata. According to Mr. Basu, learned Trial Court framed the issue no. 1 as to the maintainability of the suit and answered the issue in the affirmative in favour of the plaintiff. It is contended further that by filing an application under Order XLI Rule 22 of the Code of Civil Procedure the defendant raised the point before the learned First Appellate Court but it was not accepted and the plea was rejected vide order no. 23 dated 25th July, 2019. It is contended further that by filing an application under Order XLI Rule 22 of the Code of Civil Procedure the defendant raised the point before the learned First Appellate Court but it was not accepted and the plea was rejected vide order no. 23 dated 25th July, 2019. It was not challenged by the defendants. Therefore, this point has reached its finality. Therefore, having accepted the said order, the appellants cannot raise the same issue. According to Mr. Basu, learned Senior Counsel, the suit against the firm in the trade name is well maintainable and mentioning of the names of the individual partners is not necessary in view of Order XXX Rule 10 of the Code of Civil Procedure. It is argued by Mr. Basu that a tenancy cannot be bequeathed or assigned by way of Will to the strangers excepting heirs and/or descendants and other persons related by legitimate kinship. Here in this case the defendants are neither the kinsmen of the original tenant nor they are the legal heirs of the original tenant. They are the strangers. To buttress his point Mr. Basu relies upon the judgement of Hon’ble Supreme Court in SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRS. VS. LAND TRIBUNAL, JAMKHANDI & ANR. reported in (1998) 7 SCC 294 , it is held :- “The assignment of any interest in the tenanted land will not be valid.” 14. It is contended by Mr. Basu, learned Senior Counsel that though the suit was filed in the trade name, the persons interested in the business contested the suit by answering to the plaint of the plaintiff. Therefore, in the second appeal they cannot take the plea that the suit as framed is not maintainable on the ground that it was filed in the trade name without impleading the partnership firm or without impleading the trustees. 15. The defendant was represented by the Mundras, therefore, there is no reason to hold that principle of natural justice was not adhered to or prejudice was caused to the defendants. According to Mr. Basu, learned Senior Counsel for the aforesaid reason the suit cannot be held to be not maintainable for want of necessary parties. 16. In order to buttress his point Mr. Basu places his reliance on a decision of the Hon’ble Apex Court in the case of N.K. MOHD. SULAIMAN SAHID VS. N.C. MOHD. According to Mr. Basu, learned Senior Counsel for the aforesaid reason the suit cannot be held to be not maintainable for want of necessary parties. 16. In order to buttress his point Mr. Basu places his reliance on a decision of the Hon’ble Apex Court in the case of N.K. MOHD. SULAIMAN SAHID VS. N.C. MOHD. ISMAIL SAHEB reported in AIR 1966 SC 792 wherein it is held :- “14. Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Where by the personal law governing the absent heir the heir impleaded represents him interests in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justify due and no prejudice is shown to the absent heir, the decree in an action where the plaintiff has after bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to overreach the Court. The Court will also enquire whether there was a real contest in the suit, and may for that purpose ascertain whether there was any special defence which the absent defendant could put forward, but which was not put forward. Where however on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased persons against whom the plaintiff has a claim either at all or even partially, in the absence of the fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion.” 17. Hon’ble Apex Court in P. PRABHAKARA VS. BASAVARAJ K. (DEAD) BY LEGAL REPRESENTATIVES & ANR. reported in (2022) 1 SCC 115 held :- 21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. This principle applies to all parties irrespective of their religious persuasion.” 17. Hon’ble Apex Court in P. PRABHAKARA VS. BASAVARAJ K. (DEAD) BY LEGAL REPRESENTATIVES & ANR. reported in (2022) 1 SCC 115 held :- 21. A relief can only be on the basis of the pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other’s case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. A useful reference can be made to the following passage in Bachhaj Nahar v. Nilima Mandal5 (SCC pp. 497 & 500, paras 15 & 23) “15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul6 [ AIR 1966 SC 735 ]: (AIR p. 738, para 10) “10. … If a plea is not specifically made and yet it is cov-ered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that un- doubtedly would be a different matter….” 18. Placing his reliance upon the judgement of Hon’ble Supreme Court in N. JAYARAM REDDI VS. If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that un- doubtedly would be a different matter….” 18. Placing his reliance upon the judgement of Hon’ble Supreme Court in N. JAYARAM REDDI VS. REV. DIV. OFFICER AND LAND ACQUISITION OFFICER, KURNOOL reported in AIR 1979 SC 1393 , Mr. Basu, learned Counsel submits that the anxiety of the Court should be whether those likely to be affected by the decision of the proceeding were before the Court having full opportunity to present their case. Once it is satisfied, question of prejudice does not arise. 19. It is further argued by Mr. Basu that when an order attains its finality, it matters little as to whether it was erroneous, in the interest of the public at large that finality should attach to the binding decisions pronounced by a Court of competent jurisdiction and it is also in the public interest the individuals should not be vexed twice over in the assessment or some matter in issue. 20. It goes without saying that in a suit there shall be plaintiff to seek any right or relief in respect of or arising out of the same act or transaction and all persons may be joined in one suit as defendant. The term ‘person’ it goes without saying, includes juristic person. Therefore, we can say that in order to maintain a suit, it should be filed by one or more persons seeking certain relief before the Court against a person or more than one person as the case may be who are causing impediment in enjoying the right. Order 1 Rule 3 of the Code of Civil Procedure says:- “3. Who may be joined as defendants. All persons may be joined in one suit as defendant where- (a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise.” 21. It leaves no manner of doubt that a trade name can never be considered, to be a juristic person so is a partnership firm. It leaves no manner of doubt that a trade name can never be considered, to be a juristic person so is a partnership firm. Therefore the plaintiff cannot maintain the suit without impleading the trustees of the trust created by the original tenant, Baijnath Choubey, in the breach of Order XXXI Rule 1 of the Code of Civil Procedure. 22. Since the plaintiff in paragraph 9 of the plaint discloses that the factum of alleged partnership firm came to their knowledge through Title Suit No. 230 of 1991, they had the obligation to file the suit in the name of the partners of the firm following the procedural law as laid down under Order XXX of the Code of Civil Procedure. It was not adhered to. But the defendant since contested the suit by filing written statement, and the verification was signed by Sarbottum Das Mundra, one of the partners of the defendant and did not withdraw his appearance, it continues to be appearance under Order XXX Rule 6 of the Code of Civil Procedure. 23. Hon’ble Supreme Court in the case of GAJENDRA NARAIN SINGH VS. JOHRIMAL PRAHLAD RAI reported in AIR 1964 SC 581 wherein it is held :- “Where a person is served with summons as a partner of the defendant firm and he files an appearance without protest, his appearance must be deemed to be on behalf of the firm. And unless the Court permits him to withdraw the appearance initially filed, it continues to be an appearance under R. 6 of O. 30 on behalf of the firm.” 24. The finding of learned Trial Court as to the maintainability of the suit was challenged before the Court of appeal and learned First Appellate Court did not accept the plea raised by the defendant/appellant as to the maintainability of the suit. The question that calls for consideration is whether such finding of learned First Appellate Court in an interlocutory order can be held to have attained finality to bring the issue within the mischief of Section 11 of the Code of Civil Procedure? 25. In my humble opinion order no. 23 passed by learned First Appellate Court on 25th July, 2019 should be considered as other order which is amenable to appeal under Section 105 of the Code of Civil Procedure. It cannot be protected under principle of res-judicata. 26. 25. In my humble opinion order no. 23 passed by learned First Appellate Court on 25th July, 2019 should be considered as other order which is amenable to appeal under Section 105 of the Code of Civil Procedure. It cannot be protected under principle of res-judicata. 26. Thus the substantial questions are answered in the affirmative. That decree has been granted by the First Appellate Court on the ground of subletting. In absence of any evidence to constitute the ingredients of subletting the decree cannot be maintained. Hon’ble Apex Court Dipak Banerjee vs. Lilabati Chakraborty reported in (1987) 4 SCC 161 , Resham Singh vs. Raghbir Singh and Ors. reported in (1999) 7 SCC 263 has decided the issue. It has become settled principle of law that in order to establish subletting the onus lies upon the landlord to prove by adducing evidence that the suit property is in exclusive possession of the sub-tenant and there is relationship of lessee and lessor between the original tenant and the sub-tenant and the possession of the premises has been parted with by the tenant exclusively in favour of the sub-tenant and that too against consideration or on payment of rent. 27. The plaintiff ought to have adduced evidence to prove the ingredients of subletting to justify an order of eviction on that ground. In absence of any evidence oral or documentary, the finding of the learned First Appellate Court is based on no evidence and therefore warrants interference. I am of the opinion that the impugned judgement passed by learned First Appellate Court is erroneous and should not be allowed to remain in force. 28. The appeal is thus accepted and allowed on contest but without any order as to costs. The impugned judgement and decree passed by learned First Appellate Court are set aside. 29. Let a copy of this judgement along with lower Court record be sent down to the learned Trial Court immediately. 30. Urgent photostat certified copy of this judgement, if applied for, should be made available to the parties upon compliance with the requisite formalities.