Tarkeshwar Nath, J.

(1) This appeal by defendant No. 2 arises out of a suit for eviction of defendants 1 and 2 from a portion of the ground floor of a house bearing holding No. 35 in Ward No. 6, Mahalla Mahajan Toli No. 2, within the Municipality of Arrah.

(2) The case of the plaintiff was that she was the owner of the house described in schedule A of the plaint and her name was entered in the Municipal registers. The inner apartment of that house was used by the plaintiff for her residence but the outer portion on the road side consisting of a hall with an attached room was used as a shop and the description of the shop was indicated in schedule B of the plaint. Sheo Dheyan Ram (defendant No. 1), and his elder brother Ramdheyan Ram were members of a joint Hindu family and they were carrying on joint business. The aforesaid shop with an almirah and show case was let out to Ram Dheyan Ram by the plaintiff in the month of February 1945 on a rent of Rs. 70/- per month and Ram Dheyan Ram had agreed to pay the rent on the first day of every month. Ramdheyan Ram and dependant No. 1 carried on business of gold and silver ornaments in the said shop under the name and style of Das-rath Prasad Rajeshwari Prasad and after the death of Ramdheyan Ram defendant No. 1 alone continued that business. Defendant No. 1 did not pay rent for the months of January, February and March 1959. Defendant No. 1 wound up his business at Arrah and instead of making over possession of the said shop to the plaintiff he sublet it to defendant No. 2 without the consent of the plaintiff. Defendant No. 2 started a business under the name and style of Binoy Kumar and Brothers. The plaintiff required the said shop for her own purposes and carrying on her business and hence she requested defendant No. 1 to give her vacant possession by ousting defendant No. 2 and pay the arrears of rent, but he did not pay any heed to it. She asked defendant No. 2 as well to give up possession of the shop and remove his articles but he did not comply with the request of the plaintiff. The defendants were thus liable to be evicted under the Bihar Buildings (Lease, Rent and Eviction) Control Act, on the ground (i) non-payment of rent for three months, (ii) subletting the said shop and (iii) bona fide necessity of the plaintiff. The plaintiff was entitled to a sum of Rs. 210/- as rent for the period January 1959 to March 1959 and Rs. 2/8/- as interest at the rate of 6 per cent per annum from defendant No. 1. In these circumstances, the plaintiff instituted Title Suit No. 47 of 1959 giving rise to this appeal for eviction of the defendants from the said shop described in schedule B and realisation of Rs. 212/8/- as arrears of rent and interest, besides future interest.

(3) Defendant No. 1 took the plea that the suit was not maintainable as the notice under Section 106 of the Transfer of Property Act was not served upon him. His case was that there was no relationship of landlord and tenant and he took the disputed premises on rent from defendant No. 2 and had paid rent regularly to defendant No. 2 with the consent of the plaintiff. According to him, the plaintiff is not the full owner of the entire house and she happened to be a co-sharer only and she was in occupation of the first floor only. Whereas defendant No. 2, another co-owner of the house, was in occupation of the ground floor. The entire ground floor including the inner portion of the said holding was in the occupation of defendant No. 2 as co-owner and he was carrying on his business in gold and silver ornaments. In other words, defendant No. 2 was not a tenant. His case further was that, having taken that shop on rent from defendant No. 2 in February 1945 he carried on business in that shop but when he wound up his business at Arrah completely in December 1958 he gave vacant possession of the said shop to defendant No. 2 in January 1959. The question of subletting to defendant No. 2 did not arise in those circumstances, and in fact the question of payment of rent did not arise from January 1959.

(4) Defendant No. 2 as well filed a written statement and he denied the relationship of landlord and tenant between the plaintiff and himself. His case further was that he was not a sub-tenant of defendant No. 1 and, on the other hand, he was in occupation of the premises in question as a co-owner of the house. He alleged that he had inducted Ram Dheyan Ram as a tenant. According to him. the first floor of the building in question was in possession of the plaintiff but the ground floor was in his possession. Sheo Dheyan Ram (defendant No. 1) wound up his business in December 1958 and gave possession of the said shop to defendant No. 2 and since then he was carrying on his business. The plaintiff did not require the house for her personal use and business.

(5) Issue No. 1 was us to whether there was any relationship of landlord and tenant between the plaintiff and Sheo Dheyan (Defendant No. 1) and whether Sheo Dheyan had sublet the shop to defendant No. 2. Issue No. 5 was whether the plaintiff was entitled to a decree for eviction on the ground alleged in the plaint, and issue No. 6 related to the claim with regard to the arrears of rent. Learned Munsif held that the house in question was let out by the plaintiff to Ramdheyan Ram and Sheodheyan Ram (Defendant No. 1) and defendant No. 1 had sublet the house to defendant No. 2. He further held that the plaintiff was entitled to the arrears of rent amounting to Rs. 210 along with interest Rs. 2-8-0. The plaintiff had made a claim for possession of the iron safe and show-cases but the Munsit did not allow this claim. In the result, lie decreed the suit in part, directing the defendants to vacate the said premises within 90 days of his order and remove the articles from those premises and he passed a decree for arrears of rent and interest as well.

(6) Being aggrieved by the said decree, defendant No. 2, preferred an appeal and the first Additional Subordinate Judge, by his judgment, dated 14-8-1961 allowed the appeal, set aside the judgment and decree of the Munsif and dismissed the plaintiffs suit as being not maintainable. The plaintiff then preferred a second appeal, No. 905 of 1961, in this Court, On 2-1-1963 the second appeal was allowed, the judgment and decree of the 1st Additional Subordinate Judge were set aside and the ease was remanded to him to rehear and decide the appeal in accordance with law keeping in view the observations made in the judgment. After remand, defendant No. 2 has been unsuccessful and the third Additional Subordinate Judge held that the disputed house was purchased by the plaintiff and she was the owner of the same. The purchase was not made by any joint family and the case of defendant No. 2 was incorrect and he had no interest in the said house as owner. He further found that there was relationship of landlord and tenant between the plaintiff and defendant No. 1 and defendant No. 2 got possession of the said house from defendant No. 1 not by way of subletting but otherwise. He affirmed the finding of the learned Munsif with regard to the arrears of rent as it was not challenged before him. In view of these findings, he dismissed the appeal of defendant No. 2 and affirmed the judgment and decree of the learned Munsif. Hence, defendant No. 2 has preferred this second appeal.

(7) Learned counsel for the appellant urged that the plaintiff in the present case had not determined the tenancy before the institution of the suit by giving a notice under Section 106 of the Transfer of Property Act and hence the suit for eviction was not maintainable. He pointed out that the plaintiff did not at all state in the plaint that such a notice was given by her and that the tenancy was determined. In support of it he referred to a decision of the Full Bench in Niranjan Pal v. Chailanyalal Ghosh, 1964 BLJR 583: (AIR 1964 Pat 401 [LQ/PatHC/1964/76] ), where it was held that in the case of a contractual tenancy the lease must be determined before the landlord could maintain an action for the tenants eviction under S. H of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. Learned counsel referred to the following observation in Para. 20 of that decision:

"Appearing on behalf of the plainliff-respondent, the learned Advocate-General has argued that this point was not raised in the Courts below, and that the appellant should not be allowed to raise it for the first time in this Court. If I am right in the view which I have expressed above that the lease must be determined before the landlord can maintain an action for eviction of the tenant under Section 11 of the Control Act, it is for the plaintiff to mention in his plaint the fact of determination of the lease as one of the facts constituting the cause of action which he is required to give under Rule 1 of Order VII of the Code of Civil Procedure. He has also to prove the fact. If the plaintiff has not done that, it seems manifest that the defendant can take the point for the first time in second appeal."

It was further held that as the respondent there had not determined the tenancy by giving a notice under Section 106 of the Transfer of Property Act, his action under Section 11 of the Control Act was premature and on that ground the decree for eviction passed by the Court below was set aside. In the present case, an objection with regard to the not giving of the notice under Section 106 of the Transfer of Property Act was taken by defendant No. 1 in his written statement, but no issue was framed in this respect. The plaintiff, however, did not state in her plaint that she had determined the tenancy by giving a notice under Section 106 of the Transfer of Property Act. The position thus is that according to the decision of the Full Bench it was incumbent upon the plaintiff to determine the tenancy by giving a notice under Section 106 of the Transfer of Property Act and she had to state this fact in the plaint and then prove it. There being no issue in this respect, this question was not canvassed in the Courts below, but, according to the Full Bench, this point can be raised for the first time even in a second appeal. Learned counsel for the plaintiff-respondent refuted this contention and submitted that the defendants in the present case having denied the relationship of landlord and tenant and the title of the plaintiff in respect of the disputed premises, it was not open to them to take the objection that the tenancy was not determined and the notice under Section 106 of the Transfer of Property Act was not given. In support of this contention, he referred to Abdul Rahim v. Md. Azimuddin, AIR 1965 Pat 156 [LQ/PatHC/1964/133] . The appeal in that case was by the defendant in an action for his ejectment from certain premises. The plaintiff had claimed recovery of arrears of rent and his case was that the defendant had taken lease of the premises for starting a hotel for a period of five years from 1-12-1953 to 30-11-1958 by a registered document, dated 2-12-1953 on an annual rent of Rs. 2,400 payable in quarterly instalments on fixed dates on the explicit condition that, in case of default of any two consecutive instalments he (Plaintiff) would be entitled to re-enter upon the premises. Another condition in the lease was that the premises would be used only for a hotel. The defendant violated both the conditions by keeping in arrears the rent that was payable on the 31st May and 31st August 1956 and by opening a book-stall and a betel shop in the premises in addition to the hotel. The main plea of the defendant was that the plaintiff was not the owner of the suit premises and he (defendant) took a permanent settlement of that land by two registered permanent leases in 1946 and 1948 from another person to whom the land belonged. The two leases were, however, taken in the name of the plaintiff, as the defendant apprehended that if he acquired the property in his name, his five brothers might claim a share in that property. The defendant alleged to have paid salami for the said settlement and after taking the lease he constructed houses on that land with the sanction of Patna Municipality. His plea was that the plaintiff was not the owner and there was no relationship of landlord and tenant between the parties. The trial Court held that the plaintiff was the owner of the said premises and he had constructed the existing building and the defendant had taken lease of the same on rent according to the registered lease of 2-12-1953. It further held that the defendant had committed forfeiture of tenancy by nonpayment of rent and use of the premises for purposes other than keeping a hotel. The trial Court gave a decree to the plaintiff for evicting the defendant and realising the arrears of rent. The defendant was unsuccessful in appeal before the lower appellate Court and hence he filed a second appeal in this Court. The contention on behalf of the defendant-appellant was that there was no cause of action for the plaintiff to institute the suit as he had not determined the lease by giving a notice in writing as provided under Section 111, Clause (g) of the Transfer of Property Act. The default in payment of rent for two consecutive instalments happened on 31-8-1956 and the suit was instituted on the following day. There was thus no time left for giving a notice and in that view it was urged that there was no determination of the tenancy and, therefore, no cause of action arose for a suit for eviction. The appellant there relied on the decision of the Full Bench in 1964 BLJR 583: (AIR 1964 Pat 401 [LQ/PatHC/1964/76] ), referred to above, in support of the contention that the tenancy had to be determined by giving a notice under Section 106 of the Transfer of Property Act before the institution of a suit and the fact of giving notice had to be stated in the plaint. It appears that the plea of non-maintainability of the suit and absence of the cause of action for the suit raised in the written statement did not relate to absence of notice by the plaintiff under Section 111 (g) of the Transfer of Property Act. The ground regarding absence of notice was taken subsequent to the filing of the second appeal. The decision of the Full Bench was referred to and distinguished in the following manner:

"In the Full Bench case of this Court, 1964 BLJR 583: (AIR 1964 Pat 401 [LQ/PatHC/1964/76] ) (FB), it has been held that a plea about the absence of notice under Section 106 of the Transfer of Property Act terminating a month to month lease can be raised in appeal. In the batch of cases disposed of by that decision, the tenant did not challenge the title of the lessor and in that view it was open to him to contest the determination of the lease in absence of a notice for that purpose. As the service of such notice was the cause of action for that suit and as the plea in regard thereto was available to the defendant, that appears to have been permitted to be raised at the appellate stage. Besides the admitted position in those cases was that there was no service of any such notice on the defendants of the three cases. But, if in a case of ejectment where the defendant sets up his own title as against that of the lessor and contests the suit, no defence on the ground of absence of notice for termination or determination of the lease is available to him during the trial, he can much less be allowed to raise such a plea in a second appeal,"

In the case of Abdul Bahim relied upon by learned counsel for the plaintiff respondent the plaintiff had claimed eviction on the ground of forfeiture and what amounted to "forfeiture" was explained in Clause (g) of Section 111 of the Transfer of Property Act. The breach of conditions entailing re-entry and a written notice were conditions precedent for forfeiture. This appears from the following passage occurring in Para. 11 of that decision:

"If the suit for possession is based upon forfeiture, as both the parties as well as the Courts below understood the present case to be, there was no necessity for the plaintiff to state categorically about the performance of the conditions precedent for the forfeiture. As provided under Order 6, Rule 6, Civil Procedure Code, an averment of a performance or occurrence of all conditions precedent necessary for the case of the plaintiff shall be implied in his pleading. Tf the defendant intended to contest any of those conditions precedent, namely, service of notice, it was incumbent upon him to distinctly specify the same in his written statement. The plaint disclosed that there had occurred a forfeiture and that was sufficient to give rise to a cause of action for the suit".

The defendant-tenant in that case had committed a breach of another condition by subletting a portion of the premises for a book-stall and a betel shop and that amounted to forfeiture which took place long before the institution of the suit. The position thus is that the plaintiff in that case, AIR 1965 Pat 156 [LQ/PatHC/1964/133] had sought relief for eviction on the ground of forfeiture and the necessary facts indicating forfeiture were stated in the plaint, but the facts of the suit giving rise to the present appeal are entirely different. In the present case, the plaintiff alleged that the defendants were liable to be evicted under the Bihar Buildings (Lease, Rent and Eviction) Control Act.

(8) Learned counsel for the plaintiff-respondent further submitted that the defendants in the present case could not be allowed to take inconsistent pleas and if they denied the plaintiffs title to the suit premises they could not at the same time plead that the tenancy was not determined according to law. In support of it, he referred to Ram Palak Mahton v. Bilas Mahton, AIR 1952 Pat 69 [LQ/PatHC/1951/111] , and pointed out that the view taken in Ram Palak Mahtons case, AIR 1952 Pat 69 [LQ/PatHC/1951/111] , was adopted and relied upon in Abdul Rahinis case, AIR 1965 Pat 156 [LQ/PatHC/1964/133] . The appeal of Ram Palak Mahton arose out of a suit in ejectment which was decreed. The defendant there put forward two alternative pleas. One was that he was the owner of the premises and the plaintiff was not the landlord. The other was that, if in fact he was a tenant the notice to quit which had been served on him was not in law a valid notice and did not terminate his tenancy. It was observed that it was not open to the defendant to assert in one breath that he was not a tenant of the plaintiff, and in another, to assert that he was a tenant and his tenancy had not been properly determined. Both the Courts had negatived the first of the two pleas and no merit was found by their Lordships in the contention with regard to the first plea. Thereafter, the contention with regard to the invalidity of the notice was considered and it was held that the notice was valid in law.

(9) Section 111 (h) of the Transfer of Property Act provides that a lease of immoveable property determines on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. According to the decision of the Full Bench in the case of Niranjan Pal, L964 BLJR 583: (AIR 1964 Pat 401 [LQ/PatHC/1964/76] ), the plaintiff has to state in the plaint the fact of determination of the lease as one of the facts constituting the cause of action, and unless that statement is made the suit for eviction of the tenant is not maintainable. It is true that in the cases before the Full Bench there was no denial of the title of the landlord. The question as to whether a defendant can take alternative and inconsistent pleas would arise later and the first thing to be ascertained is as to whether the plaintiff in a suit for ejectment had a cause of action for instituting a suit of that kind. If the plaint itself suffers from an infirmity in the sense that it does not contain a statement about the determination of a lease by giving the requisite notice under Section 106 of the Transfer of Property Act, then the plaintiff would not be entitled to get a decree for eviction and the matter has to be considered from this point of view in a suit for ejectment. An infirmity of this kind occurs in the plaint of the suit giving rise to this appeal.

(10) It is open to a tenant to repudiate the tenancy and deny the title of the landlord either before the institution of a suit for ejectment or after the institution of a suit. The denial subsequent to the institution of the suit can be in the written statement filed by him in the suit for eviction. If the denial of the title of the landlord by the tenant is prior to the institution of the suit for eviction, the landlord is relieved from the obligation of giving the notice under Section 106 of the Transfer of Property Act, but if there is no such denial prior to the suit then he has to determine the tenancy by giving the said notice. In case, however, the title of the landlord has been denied by the tenant (defendant) in the suit for ejectment that would not obviate the necessity of the said notice under Section 106. This view has been taken in several decisions. In Unhamma Devi v. Vaikunta Hegde, (1894) ILR 17 Mad 218, it was observed as follows;

"Nor is there any doubt that the tenant forfeits this right to notice by denying the landlords title prior to suit. It is also settled law that the denial of title for the first time in the suit does not disentitle the tenant to notice, for the reason that the plaintiff is bound to show that at the date of suit he had a complete cause of action; and subsequent denial of title, even if false, docs not release the landlord from proving his case or amount to a waiver by the defendant of his right to notice, Subba v. Nagappa, (1889) ILR 12 Mad 353."

This passage was quoted and relied upon in Haidri Begam v. Nathu, (1894) ILR 17 All 45. In Peria Karuppan v. Subramanian Chetti, (J908) ILR 31 Mad 261 [LQ/MadHC/1908/23] , the argument for the plaintiff-respondent was that no notice was necessary because the third defendant in his written statement had denied the plaintiffs title as landlord and had thus forfeited his tenancy. In support of that contention, the decision in Abdulla Naha v. Moidin Kutti, (1907) 17 Mad I.J. 287, was referred to, but their Lordships observed that that decision was not in accordance with (1894) ILR 17 Mad 218, where the observation was that it was a settled law that the denial of title for the first time in the suit did not disentitle the tenant to notice for the reason that the plaintiff was bound to show that at the date of suit he had a complete cause of action. Their Lordships agreed with the decision in (1894) ILR 17 Mad 218, which was in accordance with the view taken by the Bombay and Calcutta High Courts in Vithu v. Dhondi, (1891) ILR 35 Bom 407, Prannath Shaha v. Madhu Khulu, (1886) ILR 13 Cal 96 [LQ/CalHC/1886/66] and Nizamuddin v. Mamtazuddin, (1901) ILR 28 Cal 135, [LQ/CalHC/1900/118] and did not follow the decision in (1907) 17 Mad LJ 287. In Gajadhar Lodha v. Khas Mahaladin Colliery Co., 1959 BLJR 376: (AIR 1959 Pat 562 [LQ/PatHC/1959/42] ), the defendants had denied the title of the plaintiff before the institution of the suit and as such it was held that they were not entitled to a notice at all and in that connection their Lordships referred to (1894) ILR 17 All 45. In view of these decisions, the position is that the denial of the relationship of landlord and tenant in the written statement for the first time will not relieve the plaintiff from the obligation of giving a notice under Section 106 of the Transfer of Property Act before the institution of the suit for eviction. There is no indication in the plaint of the present suit that the defendants had denied the title of the plaintiff landlord prior to the institution of the suit and in these circumstances it was obligatory on the plaintiff to determine the tenancy by giving the said notice and state in the plaint if those steps had been taken. This not having been done, it must be held that the plaintiffs suit for eviction is premature and not maintainable.

(11) Learned counsel for the plaintiff-respondent submitted that defendant No. 1 had not preferred an appeal against the decree passed against him for eviction and as such this appeal by defendant No. 2 alone was incompetent. The contention was that the said decree against defendant No. 1 having become final could not be reversed or set aside in this appeal at the instance of defendant No. 2 alone. Order 41, Rule 4 of the Code of Civil Procedure provides that where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. This rule and Rule 33 give the Court ample power to pass an appropriate decree. It is significant that if any ground is common to the defendant of the present suit, anyone of them can appeal and the appellate Court can reverse or vary the entire decree. In the present case, several grounds were common to both the defendants and both of them contested the claim of the plaintiff for eviction. Defendant No. 1 has been impleaded as respondent No. 2 and it is open to the appellate Court to reverse the entire decree in this appeal. I thus do not find any merit in this contention and it must be overruled.

(12) Learned counsel for the plaintiff-respondent urged that this case was once remanded by this Court in Second Appeal No. 905 of 1961 but at that time the defendants did not take the plea of the absence of notice under Section 106 of the Transfer of Property Act and as such they could not take this plea at this stage. That second appeal was remanded to 2-1-1963 long before the decision of the Full Bench in 1964 BLJR 583: (AIR 1964 Pat 401 [LQ/PatHC/1964/76] ), The point regarding the non-determination of the tenancy and the absence of notice became available to the defendant-appellant after the decision of the Full Bench and it has thus been taken in this appeal. The position thus is that the defendant-appellant cannot be precluded from taking this point in this appeal.

(13) Learned counsel for the plaintiff-respondent submitted that defendant No. 1 had admitted in Para. 12 of the written-statement that he made over vacant possession of the premises to defendant No. 2 in January 1959, and so that act of defendant No. 1 amounted to implied surrender of the premises according to Clause (f) of Section 111 of the Transfer of Property Act. He contended that there being an implied surrender the plaintiff was entitled to determine the lease and get a decree for eviction on the case made out by the defendant himself. In support of it, lie referred to Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 [LQ/SC/1951/10] . It was held in that case that when an alternative ease, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself made. But, before giving a relief to the plaintiff on this basis, it has to be ascertained whether there was an "implied surrender" as envisaged by Clause (f). The acceptance of a new lease by the lessee during the continuance of the old lease amounts to implied surrender (vide the illustration to Clause F). Learned counsel could not support by any decision his contention that abandonment of the premises in question amounted to the implied surrender of the premises. Relinquishment of possession may operate as an implied surrender, if there is an yielding up of possession by the lessee and taking over possession by the lessor; vide Amar Krishna v. Nazir Hasan, AIR 1939 Oudh 257 at p. 267. In the present case, there was neither the giving up of possession to the lessor (Plaintiff) nor taking over of possession by her. I am thus of the view that there was no implied surrender and the plaintiff cannot get relief on this basis.

(14) The plaintiff had claimed arrears of rent to the tune of Rs. 210 and Rs. 2-8-0 as interest. The suit for arrears of rent was maintainable and the plaintiff is entitled to a decree for Rs. 210 as rent, but she is not entitled to interest, as the plaintiff did not allege that there was any stipulation for paying interest.

(15) In the result, the appeal is allowed in part and the judgments and decrees of the Courts below are modified. The plaintiffs suit for eviction is dismissed but she is entitled to a decree for arrears of rent to the extent of Rs. 210. She is not entitled to interest. The plaintiff will be entitled to costs of the Courts below in proportion to her success but the parties will bear their own costs of this appeal.