1. This is a plaintiff landlords appeal against a judgment of affirmance. The suit was one for eviction under Sec.11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act). Both the trial Court and the lower appellate Court having dismissed the appellants suit, the present appeal has been filed.

2. This appeal must succeed on two pure questions of law. The original defendant Shri Mithileshwar Singh was admittedly the tenant of the premises in question under the appellant. He died during the pendency of the suit and was substituted by his heirs who are the present respondents. The grounds on which his eviction had been sought were two-fold-default in the payment of rent and bona fide personal necessity of the appellant for use of the premises in question. The subject-matter of tenancy is a house bearing holding No. 22 within the Patna Municipal Corporation. Mithileshwar Singh aforesaid was a monthly tenant and used to pay rent at the rate of Rs. 20.00 per month. The appellant alleged default in payment of rent from September, 1965 to January, 1966 and it was further asserted that the landlord required the house in good faith for personal necessity. The tenancy of Mithileshwar Singh was duly terminated by sending a registered notice to quit which was served on him on 13-2-1965. A further prayer was made in the suit for recovery of a sum of Rs. 100.00 as arrears of rent. The defence, inter alia, was that although the tenant was paying admittedly rent at the rate of Rs. 20.00 per month, as a matter of fact, rent legally payable was only at the rate of Rs. 14/7/3 per month with effect from 1-7-1951 which was the amount fixed as fair rent for the house by the House Controller. Therefore, all payments made in excess of the fair rent fixed with effect from 1-7-1951 upto the month of August, 1965 were adjustable from the rents to be paid in future. Hence, in spite of the fact that no payment of rent was made from September, 1965 to January, 1966, the tenant was not a defaulter. It was next contended that the notice to quit under Sec.106 of the Transfer of Property Act was not validly served and lastly that the plaintiff landlord did not require the house for personal necessity.

3. The concurrent findings of fact of both the Courts below are these. Fair rent was fixed at the rate of Rs. 14/7/3 per month with effect from 1-7-1951 by the Controller. Therefore, any amount paid in excess was liable to be adjusted in favour of the tenant. The lower appellate Court treating the claim for adjustment as a plea of set off allowed the respondents to pay a court-fee on such excess amount, to the refund of which they were found entitled, thereby declaring the respondents as non-defaulters. It was further held that notice to quit determining the tenancy was duly and validly served on the original defendant. Lastly it was found that the house in which the plaintiff was residing along with his family members had six rooms whereas the number of members was eight or nine and that, therefore, it could not be said that the house was bona fide required for personal necessity.

4. The finding with regard to the determination of tenancy on valid service of notice to quit being in favour of the appellant, the only other two points, on which his suit has failed, are, firstly, that since the tenant had paid rent at a rate in excess of the fair rent fixed, the tenant was entitled to have the rent due from September, 1965 to January, 1966 set off rendering him not a defaulter within the meaning of Sec.11 of the Act and, secondly, that bona fide personal requirement had not been proved. I think both the points have been decided against the appellant on a wrong view of law. Section 8 (3) of the Act reads thus

"In every case in which the Controller determines or re-determines the fair rent of a building, he shall appoint a date with effect from which the fair rent so determined or re-determined shall tak