N.L.Untwalia, J.

1. This is a defendants second appeal which has come before us for hearing, as it was referred by a learned Single Judge of this Court for decision by a Division Bench. The case of the plaintiff respondent is that he had purchased the disputed building from the original owner. The Defendant appellant was a tenant of the suit premises from before on a monthly rental of Rs. 60, besides electric charges. After the purchase by the plaintiff, he as well as the vendor informed the defendant about the sale and asked him to pav rent. The defendant did not Pav rent since August 1959. He also made out a case that he required the suit premises for his bona fide personal necessity. The defendant had violated the terms of the tenancy. A notice to quit was given to him. but he refused to accept it and did not vacate the premises.

2. In 1959 this verv plaintiff had filed a suit for ejectment against this very defendant. The matter came up to the High Court and the plaintiffs suit was dismissed on technical ground of non-service of notice. The plaintiffs case is that the question of default and personal necessitv was left open. The defendant has made further default and, therefore, the present suit out of which this second appeal arises was instituted.

3. The defendant in his written statement denied that the plaintiff required the suit premises for his own use or that there has been any breach of the terms of the tenancy on his part. He also denied the plaintiffs assertion that the former had defaulted in payment of rent since August 1959. According to the case of the defendant, no notice was served on him.

4. The learned Munsif decreed the suit, holding that the defendant had defaulted in payment of rent for the months of August and September 1959. On the point of notice, a finding was recorded in favour of the plaintiff, but on the question of personal necessity and alleged breach of the terms of the tenancy, the trial Court recorded findings against him.

5. The defendant filed an appeal in the lower appellate Court and the plaintiff filed a cross-appeal from the decision of the trial Court on two points, viz.. (1) personal necessitv and (2) breach of the terms of the tenancy.

6. The learned Subordinate Judge has maintained the Judgment and decree of the trial Court on the point of notice as also on the point of non-payment of rent for two months, viz., August and September 1959, by the defendant. He has also recorded a finding in favour of the plaintiff on the question of his personal necessity for the suit premises. The finding of the trial Court as regards the alleged breach of the terms of the tenancy by the defendant has been affirmed. The defendant has come up in second appeal.

7. When the case came up before me when I was sitting singly on 4-11-1970 a point was raised on behalf of the defendant appellant whether in view of the dismissal of Title Suit No. 785 of 1959 the present suit was maintainable and not barred. The point had not been specifically taken in the grounds of appeal, yet, treating it as a pure question of law, it was allowed to be argued, and then the case was referred for hearing to Division Bench.

8. The concurrent finding of the Courts below that the defendant had defaulted in payment of rent for August and September 1959 could not be attacked, in second appeal by pointing out any error of law, nor could the finding of the lower appellate Court that the plaintiff required the suit premises for his personal use be assailed. On the point of notice also, there was no point to be urged and could not be urged. The only point which was pressed strenuouslv by Mr. R.S. Chatterji, learned counsel for the appellant, was that in view of the dismissal of Title Suit No. 785 of 1959 earlier, the present suit was barred. Learned counsel developed this point by submitting that it was barred on three grounds (1) on the around of the law of res judicata engrafted in Sec.11 of the Code of Civil Procedure (her