CHOUDHARY SIA SARAN SINHA, J.

1. Defendant No. 1 has come up in second appeal against the judgement of reversal passed by the lower appellate court, namely, First Additional Subordinate Judge, Gaya. One Bimla Devi, respondent No. 1, as plaintiff, instituted Money Suit No. 66 of 1963, praying for a decree for Rs. 1,120 against three persons, namely, the appellant (defendant No. 1), the State of Bihar and one Sri Balmiki Prasad Sinha impleading the latter two as defendants 2 and 3. The claim was on account of rent or damage in respect of a house at the rate of Rs. 40 per month for a period of 28 months from February, 1960 to May, 1962. The plaintiff prayed for a joint decree against the three defendants.

2. Although the case of the plaintiff as to who was inducted as tenant in respect of the house in question is highly shaky, it appears that the plaintiff sought to make out a case that the Criminal Intelligence Department of the State of Bihar was a tenant in respect of this house through its employee defendant No. 1 working as a Group Officer of that Department. As it appears from the submission made by the learned counsel for the appellant (defendant No. 1), defendant No. 1 used the premises in question both for office purposes as also for his residential purposes. The plaintiffs case further was that defendant No. 3 had been inducted as a sub-lessee by defendant No. 1. There being default in payment of rent, the suit was instituted, as stated above, for a joint decree for rent or damage against all the three defendants.

3. It appears that sometime at the stage of hearing of the suit the plaintiff did not want to press her claim for rent against the State of Bihar and a petition to that effect was filed which appears to have been accepted by the trial Court : The result was that the State of Bihar (defendant No. 2) left the scene and the suit was contested by the remaining defendants only, both of whom disowned their liability to pay the rent claimed.

4. The trial court held that under the peculiar circumstances of the case when the plaintiff had not chosen any remedy against the State of Bihar who was liable to pay rent, she has got no valid cause of action against defendants 1 and 3, and, as such, it dismissed the suit. The plaintiff took up the matter in appeal. Relying on the finding of Title Appeal No. 65 of 1862 in the earlier litigation, to be referred to hereinafter, the power appellate court fastened the responsibility on the shoulders of the appellant for payment of the rent at the rate of Rs. 30 per month for a period from February, 1960 to July, 1961. The lower appellate Court also saddled the responsibility for payment of the rent for the subsequent period as claimed in the plaint on the shoulders of defendant No. 3. The appeal was allowed in part on contest against defendants 1 and 3 and dismissed against the State of Bihar on the ground that no relief was claimed against the State of Bihar. This has led defendant No. 1 to come up to this Court in second appeal which, by order of a learned single Judge of this Court, stands referred to a Division Bench.

5. The point raised by learned counsel for the appellant is a short one, namely, that the State of Bihar having acknowledged in written statement filed in the earlier suit, though they disputed the same in the instant suit, that they (State of Bihar) was a tenant of the tenanted premises the lower appellate court acted illegally in allowing a decree against defendant No. 1 Defendant No. 1 is the sole appellant of this appeal. Defendant No. 3, against whom also a decree was gassed by the lower appellants court, has not appealed. A submission was made by the learned counsel for respondent No. 1 that defendant No. 3 being dead, this appeal stood abated. The liability of defendant No. 1 and defendant No. 3 being clearly separate, this contention about abatement is unacceptable and it must fail.

6. Undisputedly, earlier to the instant suit, the plaintiff had in