S.S.SANDHAWALIA, J.

1. Whether the excess rent paid by the tenant to his landlord, consequent upon a mutual (though illegal) enhancement of rent would be automatically adjusted against all subsequent defaults in payment of monthly rent for purposes of Ss.4, 5 and 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, is the significant question which necessitates this reference to the Full Bench. Equally at issue is the correctness of the view in the unreported Division Bench judgment of Ramjit Singh V/s. Shanti Devi, Second Appeal No. 257 of 1977 decided on 16th August, 1979.

2. The plaintiff had brought the suit for eviction, inter alia, on the grounds of default in the payment of rent and personal necessity and had claimed a sum of Rs. 540.00 as arrears of rent. The case set up on his behalf was that his brother Babu Lal was earlier the karta and manager of the joint Hindu family governed by the Mitakshara School of Hindu Law and the disputed premises belonged to the plaintiff, which were leased to the tenants, who carried on business in the name and style of Punjab Dental and Optical Works, at a monthly rent of Rs. 60/-. According to the plaintiff-appellant rent had been paid up to Oct. 1973 against receipts granted to them. But on the 14th Nov. 1973 Babu Lal, the karta of the family, died and the plaintiff Gulab Chand became the karta in his place. According to the plaintiff-appellant, tenancy was according to the English calendar month and the tenants had defaulted in the payment of rents since the month of Nov. 1973. Further the claim for eviction was rested on the ground of personal necessity for expanding business in the interest of the younger members of the joint family.

3. The suit was seriously contested on behalf of the respondent-tenants who, however, admitted that the premises belonged to Babu Lal and were originally let out to Dr. Ramchandar Prasad, the husband of respondent No. 1 and the father of respondent No. 2, on a monthly rental of Rs. 16/- only. According to the respondents, the aforesaid rent was paid till 1943 and thereafter it was illegally raised to Rs. 20.00 per month and again enhanced to Rs. 25/- in 1946 and further raised to Rs. 30.00 in 1947 and then to Rs. 32/- in 1961 and again to Rs. 35/- in 1963 and to Rs. 40.00 in 1967 and then to Rs. 50.00 in 1970 and finally to Rs. 60.00 in 1971 and all these enhancements were illegal and under threat of eviction and the respondents were coerced to pay at the aforesaid various enhanced rates of rent. It was the stand that the alleged excess amounts paid were to be refunded or adjusted towards future rent due and consequently there was no default in the payment thereof.

4. The respondent-tenants also took up the plea that after the death of Babu Lal, the original landlord, they had approached the legal heir to know as to whom the rent was to be paid and they were informed to do so to Shri Ram Prakash Gupta, the eldest son of Babu Lal to whom allegedly the rent was remitted thereafter by money order since the month of Nov. 1973 which was, however, refused by him. Lastly, the claim of personal necessity was disputed on the ground that the premises in their possession were very small as compared to those in possession of the landlords and further that the disputed premises were the only source of livelihood for their family as they have no property in the town of Gaya as they were refugees from West Pakistan.

5. The trial Court framed as many as 9 issues and on a consideration of the evidence and an exhaustive appraisal thereof and the contentions raised came to the conclusion that the plaintiff-appellant was the landlord and the defendants-tenants had defaulted in payment of rent and further that the disputed premises were required by the plaintiff-appellant for his personal use. On these findings, the suit was decreed.

6. On appeal, the learned Subordinate Judge, Gaya, held that the enhancement of rent from Rs. 16/- originally fix