SUGAM CHAND AGRAWAL Vs. JIVT SHAH

JUDGEMENT

(1.) This is a plaintiff landlords' appeal against a judgment of affirmance arising out of Title Suit 18 of 1969.

(2.) The facts are ail admitted. When the case was first placed before learned single Judge of this Court, namely, Lalit Mohan Sharma, J., the learned Judge, by his order dated 30-8-1979, referred the case to a Division Bench for decision on 4 questions, namely, (i) whether the finding that the plaintiffs had personal necessity recorded in an earlier suit is a finding on the principle of res judicata, (ii) in view of the decision of the Supreme Court the service of notice under Section 106. T. P. Act, (hereinafter to be referred to as the Act) is not a necessary condition for maintenance of suit for eviction, (iii) in the view of the matter, the finding with regard to the legality of the notice under Section 106 of the Act in an earlier suit was incorrect and (iv) whether the respondents must be held on the facts and in the circumstances of the case, to be defaulters in the matter of payment of rent for the months of August to December, 1968. As already indicaied earlier, the tacts are not at all in dispute. The appellants instituted a suit, namely, Title Suit 85 of 1963 for eviction of the defendant respondents from holding 197, ward 2, circle 14 within the town of Chapra in the Chapra municipality. The case of the appellants in that suit was a composite one. The defendant respondents (tenants) were admittedly holding in tenancy one room in that holding for the purpose of running a shop. They, bow-ever, opened their mouth too wide and were bold enough to trespass upon the entire holding in question. In that suit, therefore, the claims made by the appellants were-- (a) eviction of the respondents from the major portion of the holding trespassed upon by them illegally and without any permission, (b) their eviction from the tenanted portion, namely, that one room meant for running the shop, (c) a decree for. damages to the tune of Rs. 302.00 and interest at Rs. 10.00plus future damages pendente lite at the rate of Rs. 2.00 per day for the trespassed portion.

(3.) That suit, namely, Title Suit 85/63 was decreed in part. The findings recorded by the trial Court in that suit were--