A suit for eviction of a tenant is premature if the tenancy has not been determined by giving a notice under Section 106 of the Transfer of Property Act.

Tarkeshwar Nath, J.

1. This appeal by defendant No. 1 arises out of a suit for eviction of defendants 1 to 3 from a portion of the premises described in Schedule B of the plaint and also for arrears of rent of Rs. 252 for the period commencing from January 1958 to December, 1960 at the rate of Rs. 7 per month and Rs. 12 as interest.

2. The case of the plaintiffs was that they along with their cosharers (pro forma defendants 4 to 8) were the owners of the premises described in Schedule A of the plaint, but by mutual partition of the said premises consisting of two rooms with two varandahs described in Schedule B along with other parts and properties fell to the exclusive share of the plaintiffs. Defendants 1 to 3 were the tenants of the plaintiffs in respect of the premises described in Schedule B on a monthly rent of Rs. 7. Defendants 1 to 3 neither paid nor remitted the rent since the month of October, 1955 in spite of repeated demands, but as the rent due for the previous period was barred by limitation, the plaintiffs claimed rent for the period commencing from January, 1958 only and the account thereof was mentioned in Schedule C of the plaint. The condition of the building in question had materially deteriorated owing to acts of waste and negligence of defendants 1 to 3, as they did not repair the said building. Those defendants had thus committed a breach of the terms of the tenancy. The plaintiffs thus instituted the suit giving rise to this appeal for the reliefs indicated above.

3. Defendant No. 1 contested the suit on grounds, inter alia, that there was no relationship of landlord and tenant between the plaintiffs and himself and as such the question of payment of rent or any default did not at all arise. The condition of the building in question has not deteriorated and, there being no tenancy at all, it was absolutely false to allege that defendants 1 to 3 had committed any breach of the terms of the tenancy. Defendant No. 1 further alleged that the premises in question belonged to one Parbati Dasi, widow of Panchanan Das, who had sold the same to Ishwar Das Laroi-ya, father of Defendants 1 to 3, by a sale deed dated 15-7-1944 for a sum of Rs. 500. In this manner, the father of those defendants came in possession of the said premises and, after his death in December, 1947, the defendants came in possession in their own rights.

4. The learned Additional Munsif held that defendants 1 to 3 were the tenants of the plaintiffs and they had defaulted in the payment of the rent, as alleged by the plaintiffs. He further found that the condition of the portion of the building from which eviction was sought for had deteriorated by acts of waste and negligence, and as such they were liable to be evicted under Sec.11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act. He further accepted the case of the plaintiffs that they were entitled to a decree for the house-rent as claimed. In view of these findings, he decreed the suit in part and directed defendants 1 to 3 to vacate the suit premises within thirty days of the judgment and to give vacant possession thereof to the plaintiffs. He allowed the claim for rent to the extent of Rs. 252.

5. Defendant No. 1 being aggrieved by the said decree, filed an appeal, but he was unsuccessful and the appeal was dismissed. Hence, he has filed this second appeal.

6. Learned Counsel for the appellant submitted that the tenancy in question not having been determined by giving a notice under Sec.106 of the Transfer of Property Act, the plaintiffs had no cause of action for this suit, so far as eviction was concerned, and that relief ought not to have been granted to the plaintiffs in the present case. To support this contention, he referred to Niranjan Pal V/s. Chaitanyalal Ghosh, AIR 1964 Pat 401 (FB). It was held in that case that the lease must be determined before the landlord could maintain an action for the eviction of a tenant under Sec.11 of the aforesaid (Control) Ac