Gopi Nath, J.
1. This is a defendant's appeal arising out of a suit for possession and recovery of Rs. 2201 by way of damages for use and occupation at the rate of Rs. 30 per month. The suit was based on title and the defendants were alleged to be trespassers. The defence was that they were tenants and could not be ejected without a valid notice under Section 106, T. P. Act terminating their tenancy.
2. The facts giving rise to the suit were as follows :--
3. The plaintiff-respondent was the landlord of the disputed premises which were governed by the provisions of U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as 'the Act'). Behari Lal, the predecessor in-interest of the appellant, was the tenant of the premises at a monthly rent of Rs. 23. Behari Lal fell into arrears and a suit for ejectment and arrears of rent was filed against him. The suit was decreed for arrears of rent only. It appears that the decretal amount remained unpaid for some time and the landlord served a composite notice under Section 3 of the Act and Section 106 of the T. P. Act terminating his tenancy and requiring him to pay the decretal amount as also the arrears falling due after the decree. He was required to vacate the premises after the period of notice. The decretal amount, it appears was deposited in court in satisfaction of the decree. The landlord, however, had filed the suit on the ground that since the amount had not been paid to him he was in default and liable to ejectment. The suit was dismissed by the trial court, but decreed by the lower appellate court. On a second appeal to this Court, the suit was dismissed on the finding that there was no default as the rent accruing after the decree was paid to the landlord while that due under the decree bad been deposited in court. It appears that during the pendency of the second appeal Behari Lal had died and was substituted by his heirs and legal representatives who are the defendants in the instant suit. The appeal was prosecuted by them and the decree was passed in their favour. After the dismissal of that suit in second appeal, the landlord filed the instant suit giving rise to this appeal on the allegations that Behari Lal's tenancy having been terminated by a notice under Section 106 of the T. P, Act, he remained only a statutory tenant thereafter which was not heritable in law, consequently the defendants after the death of Behari Lal were trespassers to the premises and liable to ejectment.
4. The defence delivered was that the suit against Behari Lal having been dismissed by this Court, the notice given to Behari Lal exhausted itself and was ineffective in law; and since a fresh suit against Behari Lal could not be filed without terminating his tenancy a fresh suit against the appellant could likewise not lie without terminating his tenancy. Both the courts below have decreed the suit for possession and recovery of damages on the finding that the defendants were trespassers and liable to ejectment from the premises. The trial court decreed the damages at the rate of Rs. 50 per month while the lower appellate court has modified that part by awarding Rs. 30 per month.
5. Aggrieved, the defendants have come up in second appeal.
6. The main question involved in the appeal is whether the status of the defendants was that of a tenant or trespasser and whether they could be ejected only after a valid notice terminating their tenancy or without it. Learned counsel for the appellants urged that the earlier suit against Behari Lal for his ejectment by a notice terminating his tenancy having failed no fresh suit against them could be filed without terminating their tenancy afresh. The defendants-appellants having stepped into his shoes being his heirs, could not be ejected without determining their tenancy, by a valid notice under Section 106 of the T. P. Act. I find force in this contention. The suit against Behari Lal having been dismissed by this Court, the notice under Section 106 of the T. P. Act ceased to have effect. See : Hals-bury's Law of England, Third Edition, Volume 23, page 410, where the law has been stated thus : 'if a landlord's application for possession fails, his notice determining the tenancy ceased to have effect.' In Shakir Hussain v. Siraj Beg (AIR 1974 All 193) it was held that if a suit, against a tenant fails, the notice under Section 106 of the T. P. Act gets exhausted and his ejectment by a fresh suit cannot be claimed without terminating his tenancy afresh by a notice under Section 106 of the T. P. Act and no second suit can be maintained on the basis of the earlier notice. The learned Judge observed as follows :--
'It is not possible to accept the contention of the learned counsel for the plaintiff-respondent that since the relationship of landlord and tenant had been put an end to by means of a notice dated 24-8-1964, the same cannot be restored even after the previous suit was dismissed by this Court on 6-3-1970. After the dismissal of that suit, the defendant was very much a tenant of this house in spite of the unsuccessful attempt made by the plaintiff to put an end to this relationship of landlord and tenant by means of his notice dated 24-8-1964. A fresh notice under Section 106 of the T. P. Act was clearly required before the second suit for ejectment could succeed.'
7. I respectfully agree with the view expressed. If the ejectment of Behari Lal could not be sought without a fresh notice under Section 106 Of the T. P. Act, the defendants could also not be ejected without a notice terminating their tenancy which they had inherited from Behari Lal.
8. Learned counsel for the respondent urged that the status of Behari Lal after the termination of his tenancy by the earlier notice was only that of a statutory tenant which was not heritable. The defendants consequently could not claim to be tenants. My attention was invited to AIR 1972 SC 2526, J. C. Chat-terji v. Sri Kishan Tandon, and it was urged that after the death of Behari Lal who held the status of a statutory tenant in the proceedings of the second appeal, his heirs and legal representatives substituted on record could not be treated as contractual tenants. In the case cited their Lordships considered the position of the legal representatives of a deceased statutory tenant in the second appeal and the pleas open to them in the proceedings. It was observed that in the second appeal, the status of the legal representatives of the deceased tenant, brought on record was not that of a tenant within the meaning of Section 3 (7) of the Rajasthan Premises (Control of Rent and Eviction) Act and the pleas open to them in appeal could only be those appropriate to their representative character and not personal to the deceased.
9. The question involved in the instant case is not regarding the status of the present defendants in the second appeal in the earlier proceedings but their status after the dismissal of the earlier suit. Further this case is not concerned with the pleas open to the appellants in the earlier proceedings but with the defences available to them in the instant suit. If the earlier notice against Behari Lal had ceased to have sny effect after the dismissal of the earlier suit, he was restored to the position of a contractual tenant and liable to ejectment only after termination of his tenancy by a fresh notice. That position will enure to the benefit of his heirs as well. They could not be treated as trespassers, and their ejectment could not be sought without terminating their tenancy by a valid notice.
10. The appeal accordingly partly succeeds and is allowed to the extent it relates to the decree for ejectment. The suit for that relief is dismissed. The decree for damages is affirmed. In view of the divided success of the parties, they shall bear their own costs. The stay order dated 23-11-1972 is discharged.