JUDGMENT 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-appellants was 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.
3. The judgment dated 27th November, 1972 has been impugned in the present second appeal.
4. 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.
5. Learned counsel for the respondents has however, in reply submitted that no plea in regard to surrender has been taken by the plaintiffs in the trial court as well as in the appellate court and as such this question cannot be permitted to be taken by the appellant In the second appeal. He has further urged that in view of the decision of this court in Ramesh Chand Bose v. Gopeshwar Prasad Sharma, 1976 All WC 301 : (AIR 1977 All 38) and Budh Sen v. Sheel Chandra Agarwal, 1978 (UP) RCC 131 ; (AIR 1978 All 88), since admittedly all the heirs of Kundan have not been made parties to the suit, for ejectment the suit could not be decreed.
6. In order to appreciate the respective contentions of the parties it is necessary to enumerate a few facts which are relevant for determining the present controversy.
7. Admittedly Kundan was the tenant of the property in dispute. Kundan died. Thereafter as has been found by the trial court only Smt. Budhiya, widow of Kundan and Hari Ram son of Kundan resided in the property in dispute. A statement was made on behalf of the respondents under Order X, Rule 2 C, P. C. to the following effect;
"It is pointed out that the application under Section 7-C of the U. P. Act 3 of 1947 of the defendant was allowed and that then rent in respect of the accommodation in dispute was deposited by the defendants alone admitting themselves as tenants."
8. Hari Ram respondent No. 2 appeared as D. W. 1. In the cross-examination he categorically stated as follows:--
^^dqUnu ds ejus ds ckn eS vksj cqf/k;k bl [kijSy esa fdjk;sjkek jg jgs gS A ge nkuks ds vykok mlds vkSj dksbZ fdjk;snkj ugh gS A**
9. The plaintiff-appellants had therefore served a notice of demand and ejectment on the respondents alone. From the above facts, it is clear therefore, that it is the own case of the respondents that they alone are the tenants after Kundan in the property in dispute. It is they alone who had been paying rent and depositing the same under Section 7-C. From these facts it is clear that the other heirs of Kundan whose names have not been disclosed by the respondents had impliedly surrendered their rights, if any. which they had inherited after the death of Kundan.
10. In Bundoo v. Akbar Ali 1978 (UP) RCC 215 : (1978 All LJ 215) learned single Judge of this Court has held that there can be an implied surrender of tenancy rights from unequivocal conduct of both the parties under Section 111, Transfer of Property Act. The principles laid down in the case of Bundoo (supra) fully applied to the present case. In the instant case none of the heirs have come up before the court to assert their tenancy rights. The name of the heirs; have also not been categorically stated. None of the alleged heirs are living in the property. None of them have paid any rent and it is the own case of the respondents that they alone are the tenants of the property. In the circumstances it is a clear case of implied surrender of tenancy by other heirs of Kundan.
11. The submission of the learned counsel for the respondents that this question is a question of fact and as such it cannot be permitted to be taken in the lower appellate court, in my opinion is not well founded. The facts have already been pleaded by the respective parties. It is for the court to draw an inference from these facts whether a case of implied surrender has been made out or not. It is not a question of fact but an inference of law to be drawn from the admitted facts. In this view of the matter, I am of the opinion that from the admitted facts on the record it is clear that there was an implied surrender of tenancy rights by the other heirs of Kundan in favour of the respondents.
12. The principle laid down in the case of Bundoo and Ramesh Chand Bose (supra) (1978 All LJ 215 and AIR 1977 All 38) is not disputed. These cases will, however, not conclude the matter as the question of implied surrender was not considered in both these cases. The view taken by the lower appellate court that the suit is bad for non-joinder of other heirs of Kundan is clearly erroneous in law.
13. In the result, I allow the appeal, set aside the judgment of the lower appellate court dated 27th November, 1972 and restore that of the trial court dated 8th May, 1972. In the circumstances of the case, parties are directed to bear their own costs. The respondents are, however, granted three months' time to vacate the premises.