S.D.AGARWAL,J. - (1.) THIS is plaintiffs second appeal arising out of a suit filed by the plaintiff -appellants for ejectment of the respondent from the Khaprail in suit and for recovery of arrears of rent and damages for use and occupation amounting to Rs. 126/ - and costs of the suit. The case of the appellants was that Jaedish Saran father of the plaintiff -appellantswas the owner of the property in dispute, and after his death in July, 1967, they became the owners of the said property, It was alleged that the property in dispute was let out by Jagdish Saran to Kundan and that after the death of Kundan who died in February, 1969, the defendants -respondents Smt. Budhiya and Hari Ram, the widow and son of the deceased Kundan, continued to occupy the Khaprail in suit. It was further alleged that there was default on the part of the respondents in the payment of rent and as such the suit was filed for ejectment. The suit was contested by the respondents on the ground that they did not commit default in payment of rent, ft was further alleged that the suit was bad for non -joinder of necessary parties on the ground that Kundan had other sons and daughters besides the respondent No. 2 Hari Ram and as such the suit was liable to fail on this ground.
(2.) THE trial court held that the respondents were defaulter in the eye of law. It was further held that the respondents alone resided in the Khaorail in suit and therefore, the suit is not bad for non -ioinder of necessary parties. The judgment of the trial court is dated 8th May. 1972. Against the said judgment an appeal was filed by the defendant -respondents before the lower appellate court. The lower appellate court allowed the appeal in part and dismissed the suit for ejectment bv its judgment dated 27th November, 1972. The lower appellate court was of the view that Hari Ram has five brothers and sisters more who inherited the tenancy right from the deceased Kundan and as such the suit for ejectment against the respondents alone was not maintainable. The judgment dated 27th November, 1972 has been impugned in the present second appeal.
(3.) LEARNED counsel for the appellants has urged that the respondents Nos. 1 and 2 alone were tenants of the property in dispute after the death of Kundan. He further urged that the other heirs of Kundan never asserted their rights and as such they impliedly surrendered the tenancy right if any. In the circumstances, the argument is that the suit for s ejectment could not possibly have been dismissed.;