The striking out of a defence against ejectment under Sec.11A of the Buildings Control Act does not debar the defendant from cross-examining the plaintiffs' witnesses on the question of title to the house in suit.

Tarkeshwar Nath, J.

1. This application in revision by defendant No. 1 is directed against the order of the learned Munsif refusing him (defendant No. 11 the permission to cross-examine the witnesses of the plaintiffs on the question of title to the house in suit and the validity of service of the notice under Sec.106 of the Transfer of Property Act.

2. The facts giving rise to this application are these. The opposite party Nos. 1 to 3 (plaintiffs) filed a title suit against the petitioner for recovery of arrears of rent and for evicting him from the house bearing holding No. 117 in Ward No. 10 of the Gaya Municipality The case of the plaintiffs was that the said house was allotted to Bipat Ram, father of plaintiffs 1 and 2 in a private family partition in the year 1933 and after the death of Bipat Ram, it was inherited by his three sons, Shiva Shankar Prasad, Hari Kishun Das and Sarju Prasad in equal shares. The right, title and interest oi Sarju Prasad was sold in the year 1956 in Execution Case No, 1100 of 1656 in satisfaction of a decree obtained by one Shyammani Devi and the said interest was purchased by Gaya Prasad Dubey. On 20-6-1962 Gaya Prasad Dubey sold his interest in the said house to Phool Kuer, plaintiff-opposite party No. 3 (wife of plaintiff opposite party No. 1). Defendant No. 1 (petitioner) was a tenant of the plaintiffs in the said house, but he failed to pay the rent and thus the plaintiffs, had the right to evict him.

3. The petitioner contested the suit on the grounds inter alia that the said house belonged to Sarju Prasad alone and his interest was purchased by him (the petitioner) in the name of Gaya Prasad Dubry, as he (the petitioner) had filed an application for being declared as an insolvent; in other words. Gaya Prasad Dubey was the benamidar and he had no real title in respect of the said house. In fact, Gaya Prasad Dubey was the Karpardaz of the petitioner and he was entrusted with the sale certificate for getting the petitioners name mutated in the Municipality but instead of taking steps in that direction, he fraudulently executed a sale deed in favour of Phool Kuer. The petitioner thus claimed to be the full owner of the house in question and asserted that he was not a tenant of opposite party Nos. 1 to 3. The petitioner being the owner, there was no question of payment of rent and any default by him.

4. During the pendency of the said suit, the plaintiffs (opposite party Nos. 1 to 3) filed an application under Sec.11A of the Bihar Buildings (Lease. Rent and Eviction) Control Act, 1947, hereinafter to be referred to as the buildings control Act for the sake of brevity, for a direction to the petitioner to deposit the arrears of rent and future rent. There was a rejoinder to the said application, but at the time of the hearing there was no contest by the petitioner and the said application was heard ex parte.

5. There were three plaintiffs in the said suit. The monthly rent was Rs. 25/-and each plaintiff claimed a particular share in this rent from defendant No. 1 every month. Learned Munsif found in his order dated 8-2-1964 that "the total amount nay-able to plaintiff Nos. 1, 2 and 3 as arrears of rent for the period up to Magh 1371 Fs. came to Rs 400/-. 391 2/3 and Rs 191 2/3 respectively" He directed the petitioner on the same date to deposit the aforesaid amounts within fifteen days of that order and future rent by the 15th day of the following months. He further passed an order that "in the case of non-compliance of any of the aforesaid directions, the defence of defendant No. 1 to the extent of ejectment shall be struck off".

6. The petitioner did not comply with the said order and did not deposit the arrears of rent, as he claimed to be the owner of the house in question. On 24-2-1964 the learned Munsif made a note that the order dated 8-2-1964 had not been complied with

7. The petitioner tiled an application on 12-6-1964 for permission to amend his written statement by taking a