SHEO SHANKAR PRASAD Vs. SUSHIL KUMAR JAISWAL

JUDGEMENT

(1.) In this Second Appeal by the defendants against the concurrent judgment of the court below passing a decree for eviction against them from a suit premises under the provision of the Bihar Buildings Control Act, 1947, the only question of law that appears to be worthy of consideration and which has been pressed with some vehemence by Mr. Ras Behari Singh, learned Counsel for the appellants, is as to whether the present suit by the plaintiffs was maintainable when they had withdrawn an earlier Title Suit for the same relief under the provision of Order XXIII, rule 1 of the Code of Civil Procedure without any permission to institute a fresh suit.

(2.) Earlier, the plaintiffs had instituted Title Suit no. 107 of 1964 in the court of 1st Munsif at Muzaffarpur for the eviction of the defendants from the suit premises on the ground of personal necessity and subletting of the premises in question. In view of the Full Bench decision of this Court in Niranjan Pal and another v. Chaitanyalal Ghosh and another (AIR 1964 Patna 401) that a notice under section 106 of the Transfer of Property Act determining the tenancy was a condition precedent for institution of a suit under section 11 of the Act, the plaintiffs withdrew the suit on 7 8.65, without, however, obtaining any permission to institute a fresh suit.

(3.) They instituted a suit in the year 1967 for the same relief. The suit was resisted by the defendants on various grounds but they filed in both the courts. The trial court decreed the suit on both the courts namely the personal necessity as well as subletting, but the court of appeal below, has maintained the decree only on the ground of personal necessity of the premises in question.