JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the learned counsel for the appellants.

2. No one turns up on behalf of the respondents in-spite of repeated calls though notices have validly been served upon the respondents. Hence, this appeal is heard ex-parte.

3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of reversal dated 12.12.2007 passed by the learned Additional District Judge, FTC-III, Dhanbad in Title Appeal No. 139 of 2005 whereby and where under, the learned first appellate court has set aside the judgment and decree passed by the trial court by which the trial court decreed the suit of the plaintiffs and directed the defendants to handover the vacant possession of the suit property within one month to the plaintiffs and also held that the plaintiffs are entitled to recover a sum of Rs. 3,125/- as arrear rent from the defendants.

4. The case of the plaintiffs-appellants in brief is that the plaintiffs are the owner of the suit premises which were leased to the defendants on monthly rent of Rs. 250/- though the tenancy was initially composite but later on due to differences between the two of the defendants who are also the brothers between themselves, the rental amount was split up between the two and each of the defendants used to pay rent separately at the rate of Rs. 125/- per month. It is further the case of the plaintiffs that the defendant no. 1 paid the rent only up to the month of August, 1993 and thereafter, failed and neglected to pay the rent from September, 1993 onwards and the defendant no. 2 paid rent up to January, 1993 and thereafter failed and neglected to pay the rent from February, 1993 onwards. The defendant no. 1 contested the suit but the defendant no. 2 did not appear. The defendant no. 1 denied that he has defaulted in payment of rent and pleaded that the plaintiffs have received the rent for the month of September and October, 1993 issued rent receipts showing payment for the month of November and April, 1991 instead and it is the case of the defendant no. 1 that the rent for the month of November and April 1991 was already paid and receipts obtained. The tenancy was admitted by the defendants.

5. On the basis of rival pleadings, the learned trial court framed the following eight issues:

(1) Is the suit maintainable in its present form?

(2) Is there any cause of action for the suit?

(3) Is the suit barred by Limitation?

(4) Is the suit barred under Bihar Building (L.R.E.) Control Act, 1982?

(5) Is the suit bad for misjoinder of cause of action?

(6) Whether the tenancy of the defendants are separate or joint?

(7) Are the defendants defaulter under Bihar Building (L.R.E.) Control Act?

(8) Are the plaintiffs entitled to any relief, if so, to what extent?

6. In support of its case, the plaintiffs examined two witnesses including the plaintiff no. 1 and also proved the documents which were marked Ext. 1 to 5/1. From the side of the defendants on the other hand, three witnesses were examined and they also proved documents which were marked Ext. A to D/80.

7. Learned trial court first took up issue nos. 4, 6 and 7 together and considering the evidence in the record, both oral and documentary came to the conclusion that the defendants never claimed any adjustment of rent already paid. The defendant no. 1 failed to establish the date of payment of rent for the month of November and December, 1993. So even though the adjustment plea for the month for September and October, 1993 is accepted still, the defendant failed to prove that he has not defaulted in payment of rent for November and December, 1993 and went on to hold that the plaintiffs have been successful in proving its case that defendant has not paid the rent after August, 1993 within the meaning of Bihar Building (Lease, Rent and Eviction) Control Act, 1992 and accordingly, decided the issues in favour of the plaintiffs and against the defendant. The learned trial court thereafter took up is