S.K.Jha, J.

1. Leave to appeal under Clause 10 of the Letters Patent having been granted by a learned single Judge of this Court, this appeal is directed against the judgment and decree passed by him in Second Appeal No. 413 of 1966. The defendant tenant who is the appellant here was also the appellant in the second appeal aforesaid.

2. The plaintiffs-landlords instituted a suit for eviction against the defendant who was the predecessor-in-interest being the father of the present appellant and who died during the pendency of the second appeal before this Court. The subject-matter of the suit was a small house within the Mokameh Notified Area Committee, with regard to which the plaintiffs-respondents claimed to be the owners and landlords. Their further case was that they had let out the house in question to the appellants father, the original tenant, on a monthly rental of Rs. 3/- and that he having made a default in payment of two consecutive months rent and the plaintiffs having required the house in question for their own, personal necessity, a decree should be passed against the defendant. It was further pleaded in paragraph 8 of the plaint that notice determining the tenancy was sent to the defendant on the 27th November, 1961 but the defendant not being inclined to comply with the terms of the notice, the plaintiffs were compelled to institute this suit. Shorn of all details, the main defence, inter alia, was that the suit was not maintainable in view of the non-compliance with the mandatory provisions of Sec.106 of the Transfer of Property Act. 1882 (hereinafter to be referred to as the Act), since the time stipulated in the notice (Ext. A) fell short of the time prescribed for such notice determining the tenancy under the provisions of the said Act.

3. The plaintiffs failed before the trial Court mainly on merits. But in appeal before the first appellate Court as well as in the second appeal in this Court before the learned Single Judge, the plaintiffs succeeded and the suit for eviction against the appellants father and the appellant, respectively, was decreed. In course of the hearing of the second appeal, when the point with regard to the illegality and invalidity of the notice under Sec.106 of the Act was raised on behalf of the appellant, the same was repelled by the learned single Judge on the ground that the appellant had denied the relationship of landlord and tenant in his defence in the written statement filed in the suit as well at in his reply to the notice sent to him by the plaintiffs, which reply was Ext. 4, and it was not open to the appellant to raise the plea of illegality of notice, as contemplated by Sec.106 of the Act. In so deciding the point against the appellant, the learned, single Judge relied upon a Division Bench decision of this Court in Abdul Rahim V/s. Md. Azimuddin, AIR 1965 Pat 156.

4. Before dealing with the question of law raised in this appeal, it is necessary for me to state that the observation of the learned single Judge in paragraph 7 of his judgment that-

"in the instant case, by the reply, Ext. 4, the defendant denied the relationship of the landlord and tenant between himself and the plaintiffs and in the written statement, he further disputed the title of the plaintiffs to the bouse in suit."

does not seem to be quite correct. So fan as the first part of the sentence is concerned, we have looked into original exhibit 4 and we find that there is no denial of the relationship of landlord and tenant with regard t" the premises in question in Ext, 4 by the defendant, predecessor-in-interest of the present appellant. Therefore, we have to proceed upon the footing that the denial of relationship of landlord and tenant was for the first time set up in the written statement by way of a defence to the present suit. That being the position, I will now refer to the Division Bench decision on which the learned single Judge has relied to see whether that is of any avail to the pre