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5. On the evidence adduced before him, the learned trial Judge found that only defendant No. 1 was in possession of the suit room at the time of the death of Brindavan and the plaintiffs were not in possession. He, therefore, held that so far as the definition of "tenant" in Section 5(11)(c) of the Rent Act was concerned, defendant No. 1 satisfied that definition because he was a member of the family of Brindavan and was also residing with him at the time of the latter's death. But the learned Judge held that the plaintiffs were also entitled to succeed to the right of tenancy which devolved on the death of Brindavan on his heirs. He, therefore, gave a declaration that the plaintiffs are the tenants of the suit room along with defendant No. 1 and they have a right to stay in the premises along with defendant No. 1 and restrained defendant No. 1 from obstructing the plaintiffs from residing in the suit room. He also directed defendant No. 3 to pass receipts of payment of rent in favour of the plaintiffs and defendant No. 1 both and to treat them both as tenants.

8. The plaintiffs thereafter filed a Special Civil Application which a learned single Judge of this Court has referred to a division Bench as mentioned above. It appears that the point canvassed before him on behalf of the plaintiffs was that the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy which devolves upon the heirs of a tenant under the general law. The present was a case of a contractual tenancy. The learned single Judge thought that not only the point canvassed before him was of considerable importance but two learned single Judges of this Court in two different matters had taken a diverse view on the point.

9. Although Mr. Gole seems to have made out a point before the learned single Judge that the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy, he has made it clear before us that that is not the main point that he would like to canvass before us. The plaintiffs are not claiming any declaration that they are tenants under Section 5(11)(c) of the Rent Act. They have filed a substantive suit on title, although that title is not as owners but as tenants. According to them, Brindavan was the tenant of the suit room and at the time of his death that tenancy had not come to an end. It had, therefore, devolved on them by inheritance. Defendant No. 1 may have been residing with Brindavan at the time of the latter's death and he may have also been a member of his family within the meaning of Section 5(11)(c) of the Rent Act. He may have thus satisfied the requirements of Section 5(11)(c) of the Rent Act and could become a tenant under the provisions of that section. But when the plaintiffs file an independent suit based on their title and succeed in showing that they are entitled to inherit the tenancy of Brindavan as his heirs, that supersedes the claim of defendant No. 1 as tenant under Section 5(11)(c) of the Rent Act and not vice versa. The question, therefore, whether, the powers under Section 5(11)(c) of the Rent Act can be exercised by the Court only in respect of a statutory tenancy and not in respect of a contractual tenancy does not really arise in this case.