Nagendra Prasad Singh. J.

The defendant is the appellant. The plaintiff respondents filed a suit (Title Suit no. 34 of 1966) in the court of Munsif, Gaya for the eviction of the appellant from a shop with godown on the ground floor of Holding No.1, Ward No. IV on Safayat Ali Road in the town of Gaya, fully described in Schedule A of the plaint. There was also a prayer for decree for Rs. 110/-as arrears of rent and Rs. 165/-by way of damages, details whereof have been given in the Schedules of the plaint.

2. According to the plaintiffs, the aforesaid shop in question belonged to them and the defendant appellant had been inducted therein as a monthly tenant and he had to pay a rent of Rs. 55/-per month. The tenancy was to run according to the Hindi Calendar. It is the case of the plaintiffs that the appellant defaulted payment of rent since 1st Baisakh 2022 Sambat (16. 4. 1965) and he failed to pay the arrears of rent for more than two months. Thereafter, the plaintiff sent a notice dated 18.9.1965 in accordance with section 106 of the Transfer of Property Act, requesting the defendant-appellant to vacate the premises in question. by 30th of Ashwin 2022 Sam bat (10.10.1965). This notice under section 106 of the Transfer of Property Act, was tendered to the defendant-appellant who refused to accept the same on 25.9.1965. When .the premises in question was net vacated by the defendant, the aforesaid suit was filed on 5.2.1966 for the relief mentioned above. In the suit, apart from default in payment of rent, eviction was also sought for on the ground that there was a personal necessity.

3. The defendant challenged the claim made on behalf of the plaintiffs on several grounds, including that there was no valid service of notice under section 106 of the Transfer of Property Act, as well as on the ground that there was no arrear of rent so as to give a cause of action for the suit. The defendant also asserted that there was no personal necessity. The defendant. while admitting that rent from 1st of Baisakh, 2022 Sambat (16.4.1965) upto Ashwin Sudi 9, 2022 Sambat (4.10.1965) bad fallen in arrears having not been paid or •tendered in accordance with law, took a stand that as the plaintiffs accepted rent for four months which had fallen in arrears on 4.10. 1965 which was offered by the defendant, there was no arrear thereafter so as to male the defendant liable for eviction. It was pointed out that this payment had been made before the expiry of the period mentioned in the notice under section 106 of the Transfer of Property Act. The result thereof will be that the notice itself will be deemed to have been withdrawn and waived.

4. The trial court, on a consideration of the materials on the record, came to the finding that the notice under section 106 of the Transfer of Property Act, was valid and there was no waiver on the part of the plaintiffs. Learned Munsif also held that the defendant-appellant was no arrears for more than two months and was liable to be evicted. The trial court, however, negatived the claim of the plaintiffs regarding personal necessity. The aforesaid findings were affirmed by the court of appeal below; hel1ce, this second appeal on behalf of the defendant.

5. The main point that has been urged on behalf of the appellant is that the only ground on which the suit for eviction has been decreed is that the defendant not having paid rent for more than two months was In arrears, and, as such, liable to be evicted. but in the facts and circumstances of the case there was no arrear so as to give a cause of action to plaintiffs. This argument has been advanced on the basis that the defendant admittedly did not payor tender the rent for four months, i. e., more than two months, in accordance with the requirements of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the Act), but on 4.10.1965 in a lump sum he paid Rs.220/., the rent for four months which was accepted by t