JUDGMENT 1. - This second appeal by the plaintiff is directed against the judgment and decree of the District Judge, Udaipur dated March 29, 1974. 2. The facts giving rise to this appeal may be stated briefly as under. The defendant respondent mortgaged a portion of his house, fully described in paragraph No. 1 of the plaint, in favour of the plaintiff appellant for a consideration of Rs. 5,000/- on March 6, 1961. On the same day, the defendant executed a registered rent-note in favour of the plaintiff and agreed to pay rent at the rate of Rs. 50/- per month. The defendant paid rent to the plaintiff upto August 1, 1962, but thereafter he did not pay the agreed rent. The plaintiff then filed a suit against the defendant respondent in the Court of Munsiff, Udaipur, for arrears of rent. This suit was decreed in favour of the plaintiff for arrears of rent upto November 12, 1962. In that suit, it was held that the relationship between the parties was that of landlord and tenant. After the decision of this suit another suit was filed for recovery of arrears of rent. In that suit again a decree for arrears of rent was passed in favour of the plaintiff and against the defendant for the period upto July 7, 1964. The plaintiff filed a third suit for the recovery of arrears of rent from July 7, 1964 to September 14, 1965. That suit too was decreed in favour of the plaintiff on December 22, 1966. When the defendant did not pay rent even after the third suit was decreed, the plaintiff filed the present suit for the recovery of arrears of rent from September 15, 1965 to November 30, 1967 amounting to Rs. 1,325/- and also prayed for his eviction on the ground that the defendant had made defaults in payment of rent and also on the ground that the plaintiff required the premises reasonably and bonafide for his own use. Besides the arrears of rent, the plaintiff also claimed Rs. 1,000/- for use and occupation of the house from December 1, 1967 to January 31, 1968. It was also prayed that a decree at the rate of Rs. 50/- per month for use and occupation may also be granted from February 1, 1968 till the delivery of vacant possession of the disputed premises. The defendant contested the suit. 1,000/- for use and occupation of the house from December 1, 1967 to January 31, 1968. It was also prayed that a decree at the rate of Rs. 50/- per month for use and occupation may also be granted from February 1, 1968 till the delivery of vacant possession of the disputed premises. The defendant contested the suit. He, however, admitted that before filing of the present suit, three suits, as mentioned in the plaint, were filed for arrears of rent and were decreed against him. He, however, pleaded that on December 7, 1964, it was mutually agreed between the parties to reduce the amount of rent from Rs. 50/- to 25/-. The defendant raised certain more pleas which would be clear from the following issues framed by the trial Court:- "1. Whether the plaintiff requires the suit premises reasonably and bonafide for his own residence ? 2. Whether Rs. 1,325/- are due on account of arrears of rent for the period 15-9-65 to 30-11-1967. 3. Whether damages on account of use and occupation for the period 1-12-67 to 31.1.68 are due ? 4. Whether the defendant has denied the tenancy and hence the tenancy has come to an end ? 5. Whether the defendant is a statutory tenant ? 6. Whether the plaintiff served a notice of eviction on the defendant on 20-11-1967, if so, what is its effect on the present suit ? 7. Whether the rent note in question is without consideration and is unenforceable on that account ? 8. Whether the trial of issue No. 7 is barred by res judicata ? 9. Whether parties mutually agreed to reduce rent to Rs. 25/- p.m. vide compromise dated 7-12-64 ? 10. Whether the trial of issue No. 9 is barred by res judicata ? 11. Whether the sons, daughters and the wife of the defendant have a share and are in occupation of the suit house and hence they are necessary parties ? 12. Relief to which the parties are entitled ?3. The trial Court, after consideration of the evidence on record, decided issue Nos. 1, 2 and 3 in favour of the plaintiff. Issue No. 5 was not pressed by either of the parties. Dealing with issue No. 5, it was held that the service of the notice to quit on the defendant was proved. Again, dealing with issue Nos. The trial Court, after consideration of the evidence on record, decided issue Nos. 1, 2 and 3 in favour of the plaintiff. Issue No. 5 was not pressed by either of the parties. Dealing with issue No. 5, it was held that the service of the notice to quit on the defendant was proved. Again, dealing with issue Nos. 8, 9 and 10, it was held that the trial of issue Nos. 7 and 9 was not barred by principles of res judicata. Issue Nos. 9 and 11 were not passed before the trial judge. It was argued before the trial Judge that as the mortgage deed and rent note were executed on the same day, the rent note was merely a device to enforce the payment of interest on the mortgage money and hence the rent note is without consideration and no relationship of landlord and tenant was ever created between the parties. This argument found favour with the learned trial Judge, who held that no relationship of landlord or tenant was contemplated between the parties and the execution of the rent note was merely a device to ensure the payment of interest. On the basis of the above finding, the learned trial Judge held that the plaintiff's suit for ejectment was not maintainable, but he, however, passed a decree for the amount of rent as interest for the sum of Rs. 1,425/-. Dissatisfied with the said decree, both the parties went in appeal before the learned District Judge, Udaiputr who dismissed the appeal filed by the plaintiff and accepted the appeal filed by the defendant, and dismissed the suit in toto. The plaintiff has now preferred this second appeal to this Court.4. I have heard the learned counsel for the parties and gone through the record of the case. 5. It may be mentioned at the outset that the defendant, in his written statement, admitted that three suits for arrears of rent on the same rent note were filed by the plaintiff prior to the filing of the present suit and all of them were decided in favour of the plaintiff and against the defendant. It was specifically pleaded by the plaintiff that the decision on the prior suits operated as res judicata between the parties, and was not open to the defendant to ignore the terms of the rent note. Issue Nos. It was specifically pleaded by the plaintiff that the decision on the prior suits operated as res judicata between the parties, and was not open to the defendant to ignore the terms of the rent note. Issue Nos. 8 and 10 were framed in this connection. Although these issues were decided against their plaintiff by the learned trial Judge, but no decision on these issues was given by the learned District Judge. In the present case, it is not in dispute that the decrees passed in the previous suits for arrears of rent, clearly show that the plaintiff had recurring right on the basis of the rent note to receive rent for the entire period till the tenancy existed between the parties and not only for the particular period for which suit for rent was filed. In such a case defendant's pleas not to pay rent due to the plaintiff for subsequent period during the continuance of the tenant will be barred by res judicata. The defendant, in the circumstances, had no right to challenge the correctness of the finding as to the relationship of landlord and tenant between the parties. This aspect of the case has been totally ignored by the learned District Judge. 6. There is yet another aspect of the case. The defendant no where in the written statement took the plea that the rent note and mortgage deed are part and parcel of the same transaction and therefore no decree for rent which was nothing but interest could be passed on the basis of the rent note as it does not have any independent existence, it is that this point was argued on behalf of the defendant before the trial Court as well as before the appellate Court, but in my opinion, both the Courts below committed grave error in going into the question in absence of any pleading to that effect. 7. A perusel of the written statement shows that the defendant's case, in substance, was that the plaintiff was not entitled to claim rent at the rate of Rs. 50/- per month on account of subsequent mutual agreement between the parties whereby the rent was reduced from Rs. 50 to Rs. 25/-. This plea impliedly goes to show that the defendant, in fact never denied the relationship of landlord and tenant between the parties. 50/- per month on account of subsequent mutual agreement between the parties whereby the rent was reduced from Rs. 50 to Rs. 25/-. This plea impliedly goes to show that the defendant, in fact never denied the relationship of landlord and tenant between the parties. In the circumstances, the Courts below committed grave error in arriving at the conclusion that the relationship between the parties was not that of landlord and tenant specially when in three previous suits, it was specifically held that the defendant was a tenant and was liable to pay rent to the plaintiff at the rate of Rs. 50/- per month during the period of tenancy. In this view of the matter, it is unnecessary for me to go into the question whether the rent note and the mortgage-deed constituted the same transaction. 8. Before parting with the case, I may refer to the application filed in this Court on behalf of the defendant respondent on October 28, 1975. This application was under Section 13A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, as amended by Ordinance No. 26 of 1975. In this application a prayer was made by the defendant that the Court may determine the amount of arrears of rent, interest thereon and costs of the suit with a view that protection may be granted to him from eviction under Section 13A of the Act. The Court, vide its order dated February 5, 1976, determined that a sum of Rs. 8,613.50 was payable to the landlord by the tenant. The Court further granted 60 days' time to the defendant to deposit the said amount in the executing Court. The defendant, however, failed to comply with this order. He is, therefore, liable to be evicted under Section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 on the ground of being a defaulter in payment of rent for more than six months.9. I accordingly allow this appeal, set aside the decree of the lower appellate Court, and decree the plaintiff's suit for eviction as well as for the recovery of arrears of rent amounting to Rs. 1,425/-. The plaintiff shall get costs from the defendants of all the three courts. Appeal allowed. *******