S. ALI AHMAD, J.

(1.) After this appeal was heard, we were informed that similar questions are involved in Second Appeal No. 231 of 1975. Learned counsel appearing in this appeal and Second Appeal No. 231 of 1975, therefore, prayed that the judgment in this appeal may not be delivered before the hearing of Second Appeal No. 231 of 1975 was concluded. We, therefore, directed Second Appeal No. 231 of 1975 to be listed along with this appeal for hearing. Learned counsel appearing in both these two appeals addressed us on the points involved in the cases. Only one point is common to the two appeals. The facts are also entirely different. It is, therefore, desirable to give separate judgments in the two appeals,

(2.) According to the plaintiff-respondents, they purchased the house from the admitted last owner under a registered sale deed dated 14-5-1956 executed in their favour. At the time of sale, the defendant-appellant was occupying the suit premises as a tenant on a monthly rental of Rs. 25. The defendant-appellant in the demised room was carrying on business under the name and style of Rashtriya Pustak Bhandar. The defendant did not pay a single paisa as rent after the purchase without recourse to the suit. The rent from Oct. 1964, till April 1967 had fallen due at the rate of Rs. 25 per month, totalling to Rs. 775. He was a defaulter under Section 11 (1) (d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be called the Act). By virtue of this default he rendered himself liable to be evicted under Section 11 (1) (d) of the Act. It is further said that the plaintiffs also required the house for their own occupation and also for the extension of their business of sweetmeat. This requirement, according to them, was bona fide which entitled them to get a decree for eviction on that count also. The plaintiff-respondents claim that they requested the appellant to pay the arrears and vacate the premises but it did not bear any fruit. In the circumstance, they say that they were obliged to send a notice under Section 106 of the T. P. Act on 2-11-1964 to the defendant-appellant asking him to pay the arrears of rent and to give vacant possession on the 1st Dec. 1964, This notice was sent by registered post and was received by the defendant on the 14th Nov. 1964. It is said that in spite of this notice the defendant-appellant neither paid arrears of rent nor vacated the house. The plaintiffs, therefore, were obliged to file this suit for recovery of Rs. 775 being arrears of rent and for eviction of the defendant from the suit premises,

(3.) The defendant in his written statement did not deny the title of the plaintiffs. Their case, however, is that the plaintiffs never informed him about the purchase for some months and, therefore, he did not know that the rent had to be paid to the plaintiffs. The allegation that the defendant was in the habit of not paying rent without recourse to the suit was also denied. It has been said that in the year 1956 he sent Rs. 70 covering rent for two months by money order but the same was refused and the money order was returned. It is also said that on the assurance of the plaintiffs he paid Rs. 165-8-3 to the Electric Supply Company and also paid Rs. 34-7-9 on 1-2-1967 for restoration of electric connection. These two amounts, according to the defendant, are to be adjusted towards rent. Further according to the defendants case the plaintiffs had earlier instituted Title Suit No. 228 of 1956 in the court of the Munsif on 21-12-1956 for eviction. This suit was decreed by the trial court against which an appeal, being Title Appeal No. 171 of 1960 was preferred to the District Judge, Muzaffarpur. On the order of the appellate court, the defendant, it is said, deposited Rs. 1,500 towards rent in the appellate court. Ultimately the appeal was allowed and the case was remanded to the trial court for disposal in accordance with law. But the suit was withdrawn by the plaintiffs on 31-1-1966. It is also said that while Title Suit No. 228 of 1956 was pending, the plaintiffs instituted Money Suit No. 223 of 1964 for realisation of rent amounting to Rs. 900. The court in the money suit permitted withdrawal of Rs. 587.95 paise (after adjusting Rs. 312.05 paise spent by the defendant on behalf of the plaintiffs) out of Rs. 1,500 that was deposited in Title Suit No. 228 of 1956. The amount so directed was withdrawn by the plaintiffs leaving a balance of Rs. 912.05 paise which the plaintiff was at liberty to withdraw on account of rent. It is said that this sum of Rs. 912.05 paise is sufficient to satisfy the rent from Oct. 1964 to 15th October 1967. It is further said that the defendant has been remitting rent from Oct. 1967 onwards but the plaintiffs have all along been refusing to accept the same. On these facts, it is said that no arrears of rent is due to the plaintiffs from the defendant as claimed by the plaintiffs and that the plaintiffs have no personal necessity for the house as alleged and that the suit has been filed with a view to compel the defendant to increase the rent. With! regard to the notice under Section 106 of the Transfer of Property Act, it is said that the same was never received by the defendant.

(4.) The trial court decreed the suit holding that the defendant was a monthly tenant and had not paid rent from Oct. 1964 to April 1967 (at the rate of Rs. 25 per month). With regard to the notice under Section 106 of the Transfer of Property Act, the trial court was of the opinion that the same was served on the defendant on 14-41-1967 on behalf of the two Plaintiffs and that it was valid.

(5.) The defendant being aggrieved by the decree passed by the trial court preferred an appeal before the District Judge, Muzaffarpur. The appeal was heard and dismissed by the 4th Additional Subordinate Judge. The appellate court while dismissing the appeal affirmed the findings given by the trial court and also held that the plaintiffs needed the demised premises reasonably and in good faith for their own occupation. This second appeal was thereafter filed in this Court which has been referred to a Division Bench] by a learned single Judge before whom the appeal was placed for hearing.

(6.) Mr. S. C. Ghose, learned counsel for the defendant-appellant first submitted that the notice under Section 106 of the T. P. Act was invalid and, as such, the suit was not maintainable. In that connection, he referred us to the notice itself which has been included in the supplementary paper book. The notice reads thus:--

"Dear Sir, We beg to give you notice that you are in occupation of premises hereinafter described as tenant since our purchase of the house, you have not paid a single sheet towards rent except what you de-jposited in court in T. S. 228 of 1956. That we want the portion of premises occupied by you for bur personal necessities and owing to yourselves being defaulter we do not want to keep you as tenant any longer. This is therefore to request you to quit and vacate the premises occupied by you and give vacant possession to us on the 1st Dec. 1964 and to pay up all arrears from Nov. 1961 to Oct. 1964 which is saved from limitation and in the event of your failure to do the same we will sue you in ejectment after the expiry of the period and for arrears and for damages and your tenancy is hereby terminated. Yours faithfully. Sushama Bala Dasi."

The first criticism is that although there are two plaintiffs, who have purchased the house and who have filed the present suit but the notice was sent only on behalf of Sushama Bala Dasi, plaintiff No. 1. The second criticism is that vacant possession of the premises has been asked to be given by this notice on the 1st Dec. 1964, which is in violation of the provision of Section 106 of the T. P. Act. Neither of the two criticisms is valid and sustainable. The contents of the notice clearly indicate that it is on behalf o more than one person as in all relevant places the word we has been used. Had it been only on behalf of plaintiff No. 1 then instead of we one will expect T. Then again it is said in the notice that vacant possession be given to us. Here also if the notice was given by only one person then instead, of us me would have been used. The fact that the notice was illegal as it was given by only one of the two plaintiffs has not been mentioned in the written statement and as such the plaintiff-respondents did not adduce any evidence to show as to in what circumstance the notice was signed only by plaintiff No. 1. For these reasons in my view the notice cannot be said to be invalid on this count. Now so far the other criticism that the plaintiffs asked the defendant to give vacant possession of the premises on the 1st Dec. 1964, is concerned, I do not find anything wrong in that. The plaintiffs could not have asked the defendant to give vacant possession on 30th Nov. 1964, because before the midnight of the 30th Nov. 1964, the lease could not be terminated. The notice, in my view, on the facts of this case meant that vacant possession should be given to the plaintiffs immediately after the expiry of the 30th Nov. 1964. I am supported in (this) view by a Bench decision of this Court in Ram Palak Mahton v. Bilas Mahton (AIR 1952 Pat 69 [LQ/PatHC/1951/111] ) where also the defendant was called on to vacate the premises on the 1st Jan. 1946. That notice was held by the Bench to be a valid notice. For these reasons, I do not find any fault with the notice on either of the two counts urged by learned counsel.

(7.) Learned counsel next urged that the finding to the effect that the appellant was a defaulter and had not paid rent for the month of Oct. 1964 to April 1967, is erroneous in law and as such it should be interfered with. According to him Rs. 912.05 paise was still in deposit which the plaintiffs were at liberty to withdraw on account of rent for the period in question. The fact that Rupees 912.05 paise lay in deposit in court is not disputed but it is significant to note that the plaintiffs could not withdraw the money on their will. If they wanted to withdraw they had to file applications praying for withdrawal of the amount. The defendant in the event of such an application being filed had to be noticed and objections invited and after hearing the parties the court either could have allowed or disallowed the prayer for withdrawal of the money. Such a course for realisation of rent is not contemplated by the Act and the possibility of realising the rent in the aforesaid manner cannot be, in my opinion, a valid defence. I am, therefore, unable to hold that the defendant was not in arrears of rent for the period beginning from Oct. 1964 to April, 1967.[ The findings of the two courts below which have not been assailed on any other ground are perfectly justified.

(8.) Mr. Ghose further urged that after the termination of the tenancy, i.e. with effect from 1st Dec. 1964, the defendant ceased to be a tenant and as such no rent was payable and since no rent was payable he could not be evicted from the suit premises on the ground that he was a defaulter within the meaning of Section 11 (1) (d) of the Act. To support his contention, learned counsel relied on the decisions in the case of Anand Nivas Private Ltd. v. Anandji Kalyanjis Pedhi (AIR 1965 SC 414 [LQ/SC/1963/213] ) and in the case of J.C. Chatterjee v. Shri Sri Kishan Tan-don (AIR 1972 SC 2526 [LQ/SC/1972/359] ). In AIR 1965 SC 414 [LQ/SC/1963/213] (supra), it has been held that:--

"A person remaining in occupation of the premises let to him after the determination or expiry of the period of the tenancy is commonly, though in law not accurately called a statutory tenant. Such a person is not a tenant at all; he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that he cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contractual tenancy is personal, it is not capable of being transferred or assigned and devolves on his death only in the manner provided by the statute."

These observations by the learned Judges of the Supreme Court have been made in a different context altogether. The question for consideration in that case was as to whether the heirs of a statutory tenant have the right to sublet the premises which is a contractual tenant has In that background, their Lordships observed that since a statutory tenant has no estate or interest in the premises occupied by him and that he cannot be turned out so long he pays the standard rent on his death his heirs cannot induct sub-tenant in the premises. In the case of AIR 1972 SC 2526 [LQ/SC/1972/359] (supra) also the same view has been reiterated. Reliance has been placed on the observations made in this case to the following passage :--

"It was contended before us that since the rent was payable by the heirs and in fact it was paid during the pendency of the proceedings, they were tenants within the definition. In our opinion, rent was not payable by the legal representatives and if the rent was paid by them during the course of the proceedings it was not because they were recognised as tenants by the landlord but be-cause the amount was received by him without prejudice to his rights under orders of the court. Indeed if the original tenant had died before the contractual tenancy had been terminated then the heirs would have inherited the tenancy and in that sense the rent would have become payable by them. But that is not the position here."

This observation, in my opinion, does not help the appellant at all. Rather if at all, it goes against them. It is clear from the portions I have quoted above that if after the termination of tenancy the statutory tenant dies then no rent is payable by the heirs. But in case the tenant dies before the termination of tenancy then rent becomes payable by the heirs of the tenant even after the termination of tenancy. These two Supreme Court decisions, therefore, are of no assistance to the appellant.

(9.) Tenant has been defined in Section 2 (h) of the Act which reads as follows :-- "Tenant" means any person by whom, or on whose account, rent is payable for a building and includes-

(i) a person continuing in possession after the termination of the tenancy in his favour; and, (ii) a person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise."

According to Section 2 (h) (i) a person continuing in possession after the termination of tenancy in his favour is included in the definition of tenant. The definition of tenant in Section 2 (i) of the Madhya Pradesh Accommodation Control Act, 1P61, is as follows :--

"A person by whom or on whose account or behalf the rent of any accom-modation is, or, but for a contract ex-press or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act; but shall not include any person against whom any order or decree for eviction has been made."

According to this definition also any person continuing in possession after the termination of his tenancy is included in the definition of tenant. In the case of Damadilal v. Parashram (AIR 1976 SC 2229 [LQ/SC/1976/231] ) a question arose as to whether a tenant after termination of tenancy in his favour remains a contractual tenant and continues to hold an estate or is rendered to the category of a statutory tenant having no estate or property in the premises which he occupies. The learned Judges held that the definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. Their Lordships further held that the incidents of such tenancy and a contractual tenancy must therefore be the same unless any provision of the Act conveyed a contrary intention.

(10.) Now coming to the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, I find that the position here is quite simple and plain. A suit for eviction of the tenant can be brought only after the tenancy is determined by a notice under Section 106 of the T. P. Act. If the argument of Mr. Ghose is acceptable then no rent is payable by the tenant. The Act, however, makes it clear that rent is payable even during the pendency of a suit for eviction which necessarily has to be paid after the tenancy is terminated. Section 11A of the Act is pointer in that direction. According to this section the landlord may make an application at any stage of the suit for an order on the tenant to deposit monthly rent and also the arrears of rent, ii any. The court has been authorised under this section to pass an order directing the tenant-defendant to pay not only the arrears of rent but also current rent. If no rent was payable after the termination of tenancy then there could have been no provision in the Act enabling the landlord to file an application for deposit of current rent and authorising the court to pass an order for deposit of the current rent. For these reasons, in my view, the intention of the legislature is unambiguously clear that the tenancy continues even after it is determined by a notice under Section 106 of the T, P. Act till the tenant is evicted in execution of a decree passed on one or more of the grounds mentioned under Section 11 of the Act.

(11.) Mr. Ghose also urged that after the service of notice under Section 106 of the T. P. Act, the plaintiffs realised arrears of rent for the period beginning from Sept., 1961 to Sept., 1964 and by such realisation the notice under Section 106 of the Transfer of Property Act lapsed. He further urged that thereafter no notice terminating the tenancy under Section 106 of the Transfer of Property Act was served and as such the suit was not maintainable. This point also has no susbtance. It has been held in the case of Hardwari Lal v. Mst. Nandrani (1977 BBCJ 678) that the "defaulted amount being paid later will not make the case of no default or a case of no arrear but it has to be decided on the principle of waiver as to whether the plaintiff having accepted the rent later has waived his right to evict the defendant." Learned counsel did not contend that after serving notice under Section 106 of the Transfer of Property Act the plaintiffs had lost the right to realise the arrears of rent. If this right was not extinguished there was nothing wrong in filing the suit and realising the arrears of rent as has been held by N. P. Singh, J. that subsequent payment of the arrears will not make the case of "no arrear. I do not, therefore, find any thing to support the view that the notice lapsed or that by realising the arrears of rent the plaintiff waived his right to evict the defendant from the suit premises.

(12.) Learned counsel also submitted that since after the filing of this appeal in this Court certain new developments have taken place and that now the plaintiffs cannot be said to require the premises reasonably in good faith for their own occupation. The new developments, according to the appellant is that he has been able to take possession of another portion of the same building and that portion is sufficient to meet his requirement. I do not think now it is possible to hold that the respondents do not require the suit premises reasonably for their own occupation. The crucial date to determine the requirement is the date on which the suit is filed. However, be that as it may, since I have held above that the appellant is a defaulter within the meaning of Section 11 (1) (d) of the Act the poestion of personal necessity loses its significance as the suit has to be decreed on that ground alone. A, For these reasons, I do not find any merit in the appeal which is dismissed with costs. Hearing fee Rupees 110/-.