A landlord is required to determine the tenancy by giving a notice under Section 106 of the Transfer of Property Act before instituting a suit for eviction, even if the tenant denies the relationship of landlord and tenant in the written statement.

Tarkeshwar Nath, J.

1. This appeal by defendant No. 2 arises out of a suit for eviction of defendants 1 and 2 from a portion of the ground floor of a house bearing holding No. 35 in Ward No. 6, Mahalla Mahajan Toli No. 2, within the Municipality of Arrah.

2. The case of the plaintiff was that she was the owner of the house described in schedule A of the plaint and her name was entered in the Municipal registers. The inner apartment of that house was used by the plaintiff for her residence but the outer portion on the road side consisting of a hall with an attached room was used as a shop and the description of the shop was indicated in schedule B of the plaint. Sheo Dheyan Ram (defendant No. 1), and his elder brother Ramdheyan Ram were members of a joint Hindu family and they were carrying on joint business. The aforesaid shop with an almirah and show case was let out to Ram Dheyan Ram by the plaintiff in the month of February 1945 on a rent of Rs. 70.00 per month and Ram Dheyan Ram had agreed to pay the rent on the first day of every month. Ramdheyan Ram and dependant No. 1 carried on business of gold and silver ornaments in the said shop under the name and style of Das-rath Prasad Rajeshwari Prasad and after the death of Ramdheyan Ram defendant No. 1 alone continued that business.

Defendant No. 1 did not pay rent for the months of January, February and March 1959. Defendant No. 1 wound up his business at Arrah and instead of making over possession of the said shop to the plaintiff he sublet it to defendant No. 2 without the consent of the plaintiff. Defendant No. 2 started a business under the name and style of Binoy Kumar and Brothers. The plaintiff required the said shop for her own purposes and carrying on her business and hence she requested defendant No. 1 to give her vacant possession by ousting defendant No. 2 and pay the arrears of rent, but he did not pay any heed to it. She asked defendant No. 2 as well to give up possession of the shop and remove his articles but he did not comply with the request of the plaintiff. The defendants were thus liable to be evicted under the Bihar Buildings (Lease, Rent and Eviction) Control Act, on the ground (i) non-payment of rent for three months, (ii) subletting the said shop and (iii) bona fide necessity of the plaintiff. The plaintiff was entitled to a sum of Rs. 210.00 as rent for the period January 1959 to March 1959 and Rs. 2/8/- as interest at the rate of 6 per cent per annum from defendant No. 1. In these circumstances, the plaintiff instituted Title Suit No. 47 of 1959 giving rise to this appeal for eviction of the defendants from the said shop described in schedule B and realisation of Rs. 212/8/- as arrears of rent and interest, besides future interest.

3. Defendant No. 1 took the plea that the suit was not maintainable as the notice under Sec.106 of the Transfer of Property Act was not served upon him. His case was that there was no relationship of landlord and tenant and he took the disputed premises on rent from defendant No. 2 and had paid rent regularly to defendant No. 2 with the consent of the plaintiff. According to him, the plaintiff is not the full owner of the entire house and she happened to be a co-sharer only and she was in occupation of the first floor only. Whereas defendant No. 2, another co-owner of the house, was in occupation of the ground floor. The entire ground floor including the inner portion of the said holding was in the occupation of defendant No. 2 as co-owner and he was carrying on his business in gold and silver ornaments. In other words, defendant No. 2 was not a tenant. His case further was that, having taken that shop on rent from defendant No. 2 in February 1945 he carried on business in that shop but when he wound up his business at Arrah completely in December 1958 he gave vacant possession of the said shop to defendant No. 2 in January 1959. The question of subletting to defendant No. 2 did not arise in those circumstances, a