MADHOLAL Vs. MADAN MOHAN AGRAWALLA

JUDGEMENT

(1.) This second appeal was placed for hearing before a learned single Judge of this court and has now been put up before us as it was directed to be placed before a Division Bench for hearing.

(2.) The suit out of which this appeal arises being title suit No. 1281 of 1965 was originally filed by Murlidhar Agarwalla, whose sons are plaintiff-respondents 1 to 3. He died during the pendency of the suit in the trial court, and the said respondents were substituted by virtue of order dated 1-7-1966, The suit was filed by the original plaintiff as karta of the joint family consisting of himself and his sons. The suit premises belonged to the joint family, and the tenant-defendants were sued for being evicted from them on the ground of non-payment of rent and personal necessity of the joint family of the original plaintiff. Several pleas were raised to resist the suit by the tenant-defendants. It was dismissed by the trial court. On appeal by plaintiff-respondents 1 to 3 the lower appellate court has decreed the suit on both the grounds. Some of the defendants have come up in second appeal to this court.

(3.) The suit premises in occupation of the defendants consist of two shop-rooms. The tenancy stood in the name of Rurmal Jagarnath which was the joint family firm of the defendants. The firm was also im-pleaded as a defendant and is respondent No. 4. Eventually, under the order of the House Controller the rent of the premises was fixed at Rs. 26/- per month. As there was no special contract to the contrary, the rent was payable by the end of the month following the month for which rent was due. According to the plaintiffs' case, the defendants defaulted in payment of the rent for the months of November and December, 1958 and January 1959. A suit for eviction was filed against them. It was decreed by the trial court, but in the lower appellate court it failed for want of notice under Section 106 of the Transfer of property Act. The High Court affirmed the decision of the lower appellate court. Even after the institution of the previous suit the defendants did not pay any rent and hence they were liable to be evicted on the ground of non-payment of rent in accordance with Section 11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control, Act, 1947 (hereinafter called the Act). The sons of the original plaintiff, according to the case made out, had become major. It was necessary for them to find out some premises for starting their business and hence the suit premises were required bona fide for the personal use of the members of the joint family which was the owner of the premises in question, The present suit was filed after service of notice under Section 106 of the Transfer of Property Act which on refusal was deemed to have been served on them on 4-12-1964.