B. N. Agrawal, J.

1. This appeal is by the plaintiff against the judgment of affirmance passed in a suit for eviction and arrear of rent in which the plaintiff claimed eviction on three grounds, namely, personal necessity, material deterioration in the condition of building and default in making payment of rent from May to November, 1973.

2. The case of the defendant, in short, is that the plaintiff has no personal necessity for the house in question and the defendant has not caused any deterioration in the condition of building muchless material one so as to entitle plaintiff to seek eviction decree. According to him, there was no default as he has partly paid the rental hand to hand and with regard to the payment of the balance rent there was an understanding between the parties that the plaintiff shall be making purchases of medicines from the shop of the defendant who shall be entitled to adjust the price of the medicines supplied to the plaintiff towards future rental.

3. The trial court after considering the oral and documentary evidence dismissed the suit for eviction having recorded a finding against the plaintiff on all the three grounds for eviction. Being aggrieved by the aforesaid judgment and decree of the trial court, the plaintiff preferred an appeal and the lower appellate court dismissed the appeal and confirmed the finding of the trial court on the question of personal necessity and material deterioration in the condition of building. So far the eviction on the ground of default is concerned the appellate court has recorded a finding in paragraph 9 of its judgment to the following effect :-

"on the other hand the defendant has proved payment of rent by way of cash payment and by supplying medicine to the plaintiff upto December, 1973". Even after recording this finding, the appellate court has dismissed the suit holding that the defendants was not a defaulter. The plaintilf has preferred this appeal challenging the aforesaid judgment and decree.

4 Sri Sukumar Sinha, learned counsel in support of the appeal contended that the plaintiff was entitled to a decree lor eviction on the ground of default on the basis of the aforesaid finding recorded by the final court of fact as according to the learned counsel the defendant became a defaulter in law. Leanred counsel in support of his contention has placed reliance upon a decision of this Court in, M. N. Roy Choudhury V/s. Nand Kishore (AIR 1981 Patna 328)wherein a learned Single Judge of this Court in somewhat similar circumstances has held that the tenant was a defaulter. In that case the tenant came with a defence that there was an agreement between him and the landlord to make construction and/or repair of the suit premises and adjust cost of repair towards future rental and the final court of fact recorded a finding that the expenses were incurred over the repair of the suit premises with the consent of the landlord who also agreed to adjust the cost of repair towards future rental. In view of the aforesaid facts of the reported case my learned Brother Mr. Justice nagendra Prasad Singh after considering the effect of Sec.60 of the indian Contract Act and the provisions of section 11 (1 ) (d)of the Bihar Buildings (Lease, Rent and Eviction) control act 1947 (hereinafter referred to as the act) and after placing reliance on a Bench decision of this Court in Madholal v Madan Mohan, (AIR 1975 Patna 154) has succinctly laid down the law in paragraphs 7 and 8 of the judgment, relevant portions whereof are quoted below :-

"7. . . . . . . In my view, even if any construction is made by the tenant with the consent of the landlord, it cannot be inferred as a necessary corollary that the cost thereof has to be adjusted towards the rent. . . As such, whatever may be said under the general law, so far as the Act is concerned, it has made no provision authorising a tenant to make constructions in the building which is in his possessions and then to claim adjustment i