Ujjal Sing And Sons v. Rajendra Kumar Kedia — 1997 DIGILAW 660 (PAT)

Judgment P.K.Deb, J. 1. For last thirty years the parties are fighting for eviction of suit premises. Title Suit No. 1149 of 1968 was filed by the plaintiffs-appellants-respondents against the defendants-respondents-appellants on the plea of defaulter and on many other grounds. 2. The plaintiffs case was that Ram Narayan Kedia and Mohan Lal Kedia were the owner of the suit premises and the defendants-Ujjal Singh and his sons having a partnership firm took the suit house on rental but the defendants defaulted in payment of rent for the month of June and July, 1966 and also had sublet a part of the suit premises. It was the specific case of the plaintiffs that the defendants-tenant had neither paid nor tendered rent for the month of June and July, 1966 nor remitted the same by Money Order at any time before 21.9.1966. It was further alleged that the partnership which was constituted by Defendant Nos. 2 to 5 has introduced Defendant No. 6 as a tenant since January, 1955 which amounted to subletting. 3. Defendants on the other hand, contested the suit by filing written statement and pleaded, inter alia, that there was no default on the part of the defendants in payment of rent inasmuch as when the plaintiffs refused to take the rent hand to hand then they had no other alternative but to remit the rent through post and the rent for June and July, 1966 was sent in due time which was refused by the plaintiffs on 16.7.1966. It was also asserted that there has been no subletting and the defendant No. 6 was a partner of the Firm. 4. At the initial stage, the suit was dismissed by the Munsif, Ranchi vide judgment and decree dated 9.8.1974 holding that there has been no tendering and subletting. It must be mentioned here that the relationship between the landlord and tenant became strained long back and plaintiffs had also filed two eviction suits on previous occasion on default ground and many other grounds, but those Eviction suits had been dismissed and that the plaintiffs were in search of getting any clue or negligence on the part of the defendants for coming up for an eviction suit. 5. 5. Although the Money Orders were sent regarding the rent but still the plaintiffs filed suits claiming rents from the defendants and as it could be found by the Courts that the Money Orders were being regularly sent and then the suits were decreed for the rent only and no cost awarded and no interest was given. Now, after the dismissal of the suit, the plaintiffs preferred Title Appeal No. 56 of 1974 which was allowed by 7th Additional Sub Judge, Ranchi vide judgment and decree dated 31.3.1975 holding that the tendering of rent for the months of June and July, 1966 in time could not be proved from the side of the defendants. The issue regarding subletting was although decided against the plaintiffs. Then the defendants-appellants against the finding of defaulter and eviction thereof filed Second Appeal No. 38 of 1976 (R) before this Court which was ultimately dismissed on 13.2.1984 affirming the judgment of the 1st Appellate Court. The defendants thereafter filed S.L.P. No. 5234 of 1984 before the Hon ble Supreme Court and leave was granted on 10.8.1984 and the S.L.P. was converted into Civil Appeal No. 3198 of 1984. The said Civil Appeal was decided on 12.12.1991 setting aside all the judgments of the trial Court, appellate Court and the second Appellate Court and the case was remandeo to the 1st Appellate Court with some directions and also allowing the parties to adduce fresh evidence. 6. It must be mentioned here that the defendants did not produce the Money order receipt regarding standing of the Money orders for the month of June and July together, although they stated in course of evidence that the said Money Order was sent on 4.7.1966 but they proved the refused Money Order coupons with an endorsement of refusal which was marked as Ext. B/23 and in the Ext. B/23, portion of endorsement regarding refusal was marked as Ext. C. But that Ext. C could not be proved formally by the peon Jagdish Ram. The plaintiff, PW-8 stated in his evidence that he had been regularly refusing to accept rent which were set by the tenant for the period from 1966 till 1968 and it was canvassed by the defendants that this was an admission on the part of the plaintiffs regarding regular sending of Money orders in time. The plaintiff, PW-8 stated in his evidence that he had been regularly refusing to accept rent which were set by the tenant for the period from 1966 till 1968 and it was canvassed by the defendants that this was an admission on the part of the plaintiffs regarding regular sending of Money orders in time. That admission on the part of the plaintiffs as PW-8 was considered by the Apex Court and also considered Ext. C the endorsement regarding refusal of the Money order towards rent for the months of June and July, 1966 on 16.7.1966. 7. The observation of the Supreme Court is relevant, when the case was sent on remand for the purpose of fresh disposal to the 1st Appellate Court. The observations are in the following manner: The trial Court found that the landlord PW-8 had admitted that the landlord had been regularly refusing to accept the rent or the period 1966 till 1968, Apart from the admission of the plaintiffs, the defendant-tenant had produced Ext. C which is Money order coupon containing an endorsement to the effect that the money had been refused. That amount was for the months of June and July, 1966 which is the period in question. The trial Court dismissed the landlord suit for eviction. On appeal, the first Appellate Court held that Ext. C had not been proved as the postman who is stated to have made the endorsement had not been summoned to speak to the endorsement. The 1st appellate Court also noted that rent for the months of June and July had been sent by Money Order in the month of September, 1966. This fact was considered by the 1st Appellate Court as an evidence against the tenant, he had tender the money in September showed that he had not paid the money in the month of June and July. The 1st appellate Court did not accept the submission of the tenant that he had been regularly sending the money and has admitted by the plaintiff himself, the money had been repeatedly refused by the plaintiff and that is why he sent the amount second time in September, 1966. The finding of the 1st appellate Court was upheld by the High Court by the impugned judgment. The finding of the 1st appellate Court was upheld by the High Court by the impugned judgment. The only question which arise for consideration in this appeal is as regards the alleged tender for the months of June and July, 1966. In so far as the plaintiff had relied on Ext. C, although it was not proved properly and in so far as trial Court had found that the landlord as PW-8 had admitted regular payment and repeated refusal by him. We are of the view that the parties should be given another opportunity to adduce fresh evidence regarding the alleged non payment for two months in question. It will be open to the appellants-tenant to prove Ext. C and also adduce whatever other evidence which may be available to him to substantiate his contention regarding tender of the amount due for the period in question and the refusal of the landlord to accept the same. The landlord will also no doubt have an opportunity to adduce fresh evidence, if so desires. 8. After remand of the case to the 1st Appellate Court, it was transferred to the Court of 6th Additional Judicial Commissioner, Ranchi for disposal in Title Appeal No. 56 of 1974. Both parties adduced further evidence. The defendant examined, DW-10, Ataur Rahman Khan, Assistant Post Master of Ranchi G.P.O. and DW-11, Sarju Prasad, Munsi of the defendant-firm. The plaintiffs also examined one witness namely, PW-9, Indradeo Narayan Tiwary, a postman in Ranchi G.P.O. 9. The learned 1st Appellate Court after consideration of the materials on record came to the finding that the defendant has failed to prove that the rents for the months of June & July, 1966 was sent on 4.7.1966 and as such tendering was not there within the prescribed period and when it could be proved from the side of the plaintiff that the rent for the month of June and July was sent on 21.9.1966 vide Ext. 9. Then there is no scope for the defendants to tender the rents for the months of June and July. 1966 prior to 21.9.1966. Regarding Ext. C, it was found by learned Court below that the same could not be proved on production of Jagdish Ram, the postal peon who had made the endorsement as "refused" on 16.7.1966. 10. 9. Then there is no scope for the defendants to tender the rents for the months of June and July. 1966 prior to 21.9.1966. Regarding Ext. C, it was found by learned Court below that the same could not be proved on production of Jagdish Ram, the postal peon who had made the endorsement as "refused" on 16.7.1966. 10. It must be mentioned here that after the remand from the Supreme Court when the defendant tried to bring Jagdish Ram, it could be found that by this time he is already dead and therefore it was not physically possible for the defendants to prove formally Ext. C by the hands of Jagdish Ram on production of Jagdish Ram himself, but it could be proved by DW-10 who was very much acquainted with the signature and writing of Jagdish Ram to the effect that the said endorsement and signature was made by Jagdish Ram himself and as such Ext. C was formally proved. But the learned Court below did not take the defendants contention in confidence. He has held that the defendant had the scope to call Jagdish Ram before the trial Court and when practically they had taken such steps on one occasion but did not proceed with the same then the laches are there from the side of the defendants and now the defence is debarred from taking the plea as Jagdish Ram is dead, he could not be brought to prove his endorsement in Ext. C formally. 11. Regarding the Accounts book, namely Ext. 10 and 10/A, the learned Court below has also disbelieved the same on the ground that there was scope of manipulation of those Account Books as those books remained in custody of the defendant for a long time after the same was taken back to his custody and then refiled on this suit. The learned Court below the also relied on Ext. 12 which is the postman books which was in the hand of Jagdish Ram, as was proved by PW-6 and also admitted by D.W. 10 in his cross-examination. The learned Court below the also relied on Ext. 12 which is the postman books which was in the hand of Jagdish Ram, as was proved by PW-6 and also admitted by D.W. 10 in his cross-examination. Although, it was mentioned in the judgment that the said Post Man book has been produced by the plaintiff which is not from proper custodian (the proper custodian being the Post Office itself and not being called for from the Post Office) but still then he had relied so as the said postman book has been admitted in evidence without objection. In that Post Man book, there is no entry regarding the remittance of Money Order on 4.7.1966. Thus, on these points, the learned list Appellate Court after remand from the Supreme Court has held that the plaintiff, could be able to prove that the defendant was defaulter for rent for the months of June and July, 1966 and as such the plaintiff in entitled to get a decree of ejectment as contemplated under Sec. 11 (1)(d) of the B.B.C. Act. 12. The Eviction suit was filed on the ground of defaulter and other grounds also but only the defaulter ground remained for dispute and other grounds by the plaintiffo-landlord had given up at the time of argument as is revealed from the judgments of the Courts below and also before the Supreme Court. Before this Court also, it has been stated that other grounds for eviction as has been claimed had not been pressed by the plaintiffs-landlord. The suit was filed under Sec. 14 of the B.B.C. Act and as per Sec. 11(1)(d) of the B.B.C. Act on the ground that the defendants failed to pay rents for the months o June and July, 1966 within the stipulated period and no tendering was there within the stipulated period and hence the defendants became defaulter and is liable to be ejected. 13. Three points are involved in the case. Firstly, whether the defendants tendered rents for the month of June and July, 1966 within the period of July, 1966. 14. In this respect, it must be mentioned here that for the month of June, the defendant is to tender his rent within the month of July and for the month of July, he should tender it within the month of August, 1966. 14. In this respect, it must be mentioned here that for the month of June, the defendant is to tender his rent within the month of July and for the month of July, he should tender it within the month of August, 1966. It is nobody case that tendering of the rent for July was made in the month of August, 1966 rather the rent for the month of June and advance rent for the month of July were tendered as per the defence case in the month of July, 1966 itself. 15. Second point whether there is any presumption under the law that there was no tendering in the month of July, 1966 when admittedly the rent for the month of June and July, 1966 was again tendered in the month of September, 1966, Thirdly, whether there was any wilful default on the part of the defendant when the defendant was very much cautious regarding being defaulter as on previous occasion also there were to Eviction suites of defaulter grounds alone and the suits have failed because of tendering in time and that since 1960 the defendant was tendering the monthly rent by Money Order as the landlord refused to take rent hand to hand. 16. On the first point, Mr. Debi, Prasad, appearing on behalf of the appellant has submitted that the learned 1st Appellate Court has committed error of law in holding that there was no tendering of the rent for the month of June and July, 1966 in the month of July, 1966. His contention is that there was tendering by sending Money Order on 4.7.1966 as has been proved by oral evidence by two witnesses from the side of the defendants and thus the evidence could not be shattered in any way. His further submission is that even if Money Order could not be proved to be sent on 4.7.1966 then also from Ext. C on Ext. B/23, it could be proved beyond all reasonable doubt that refusal of Money order was there by the landlord on 16.7.1966 which can conclusively presumed or inferred that there was tendering in the month of July, 1966 then there cannot be any defaulter on the part of the defendants. 17. C on Ext. B/23, it could be proved beyond all reasonable doubt that refusal of Money order was there by the landlord on 16.7.1966 which can conclusively presumed or inferred that there was tendering in the month of July, 1966 then there cannot be any defaulter on the part of the defendants. 17. In the plaint, there is a specific case of the plaintiff that the defendant was defaulter for the month of June and July, 1966 and in the written statement it has been specifically stated that the rent for these two months were tendered in time and were refused on 16.7.1966 by the landlord. It has not been stated specifically in the written statement that the Money Order was remitted on 4.7.1966. Only this has come at the time of evidence alone. So, in respect of the date 4.7.1966 regarding remittance, there was no pleading from the side of the defendant. His case was only of remittance in time and refusal by the landlord on 16.7.1966. In that view of the matter, if the refusal could be proved that it cannot be said that the defendant is lacking in not proving the remittance on 4.7.1966. 18. Mr. N.K. Prasad, appearing on behalf of the plaintiffs-landlords has submitted that although there was no specific mention of remittance on 4.7.1966 in the written statement then also when the same has been claimed by the defendant himself in his evidence then it becomes the bounded duty of the defendant to prove the same. According to him, remittance is the tendering and not the refusal. It is true that tendering must be there for the purpose of satisfying the needs ass contemplated under Sec. 11(1)(d) of the B.B.C. Act but such sort of tendering can be proved by any way, not only by specific proof of remittance alone. If a Money Order is remitted and such remittance has been refused and the refusal portion could be proved then the tendering becomes automatic and a legal inference can be drawn out of it unless it could be proved that the refusal portion of the Money Order coupon is a forged and fabricated one. 19. Hon ble Apex Court had sent the matter to the 1st Appellate Court for consideration of formal proof of Ext. 19. Hon ble Apex Court had sent the matter to the 1st Appellate Court for consideration of formal proof of Ext. C and that of the statement of the landlord regarding remittance of rent regularly and refusal by him regularly for the purpose of deciding the crucial point of defaulter in the month of June and July, 1966. 20. At the very outset, Mr. Debi Prasad. took the plea that the 1st Appellate Court have not discussed the evidence adduced after remand as the learned 1st Appellate Court was duty bound to discuss those evidence as an original Court and in that way the appellate judgment is bad. 21. It is true that the evidence of the witnesses which have been adduced after remand had not been specifically discussed as required as an original Court. But, on going through the whole of the judgment I could find that the learned Appellate Court had applied his judicial minds on those evidence also and it cannot be said that the judgment suffers for non consideration or any misreading of evidence adduced after the remand order was passed. So, this submission has got no much force. 22. Then another point has been raised by Mr. Debi Prasad, appearing for and on behalf of he defendants-appellants that there was no wilful default on the part of the defendants in tendering the rent by Money Order and if no wilful default is there then from the circumstances of the case, defaulter ground may not be available for the landlord, for the purpose of eviction. He has referred to 1988 PLJR 37 (S.C.), Gowali Charan V/s. Surendra Kumar Khadani and Ors. It was held by the Supreme Court that the plea of wilful default not being established by the plaintiff, he is not entitled to decree for eviction. That was also a case under the B.B.C. Act and such observation was made while discussion is being made under Sec. 11(1)(d) of the Act. According to Mr. Debi Prasad, circumstances of this case very much attract the abovementioned Supreme Court decision. That was also a case under the B.B.C. Act and such observation was made while discussion is being made under Sec. 11(1)(d) of the Act. According to Mr. Debi Prasad, circumstances of this case very much attract the abovementioned Supreme Court decision. According to him, it has come in evidence that since 1960 the relation between the landlord and tenant was strained and the landlord was not receiving the rent tendered by the tenant and as such he was sending rent by Money Order regularly and it was admitted by the landlord also that the tenant was sending rent by Money Order regularly and he was also refusing it. Moreover, even in those circumstances also on earlier occasions two eviction suits were filed but those were dismissed. Money suits were also filed claiming rents and those were decreed for the rent alone without compensation holding that rent was being tendered always by the tenant. It is the contention of Mr. Debi Prasad that in such circumstances the tenant was always cautious that at any time he might be trapped by the landlord for the purpose of eviction on defaulter ground in tendering the rent in time. 23. In reply to it, Mr. N.K. Prasad submitted that the abovementioned decision of the Supreme Court had come up for discussion in very many latter cases before this Court. His further submission is that the Legislature had never put the word wilful under Sec. 11(1)(d) of the Act and as such defaulter cannot be clarified as wilful default. He has referred to Single Bench decision of this Court as reported in 1989 BBCJ 517 , Darshan Singh V/s. Bilquish Jamal Begum and 1993 BBCJ 202 Jhari Mistry and Ors. V/s. Ranjan Sinha and Ors. The Single Bench in those two decisions have not stated much about the decision of the Supreme Court, rather they had not applied the same in the circumstances of the cases in the hands of the learned Single Judges as observation was made in Gowali Charans case (supra) that there was already payment of rent before the filing of the suit. 24. 24. It is not out of place to mention here that in this still also as provided under Sec. 15 of the B.B.C. Act, all rents were paid alongwith after and are being deposited till date also, as is submitted in the Bar and has not been denied from the side of the landlord. 25. The question is as to whether the landlord will take opportunity of technicalities in the getting the eviction decree against the tenant when the tenant was always ready to pay the rent and the landlord was always refusing the same searching for an opportunity of getting technical fault in tendering of the rent by Money Order. 26. 1 find in this particular case atleast Gowali Charcms case would be well attracted in view of the statements made by the landlord that the tenant was always remitting rent through Money Order and he was always refusing it and the circumstances that on previous occasions also he filed Eviction suits which were dismissed and then Money suits for getting the rent knowing fully well remittance were there, which attitude and behaviour of the landlord goes to show that he was searching for an opportunity to get technical flow in remitting of rent by Money Order by the tenant for the purpose of cause of action for filing the Eviction suit. I hold that there was no wilful default and technically should not be taken much to find out the defaulter clauses for the purpose of eviction. 27. As regards the falsity of Ext. B/23 marked with Ext. C it is the contention of Mr. N.K. Prasad that definitely no rent was tendered in the month of July, 1966 as claimed otherwise there was no reason why again the rent for these two months were sent on 21.9.1966. According to him, if the rent would have been sent earlier in the month of July then would not be resent again on 21.9.1966. 28. Against this, Mr. Debi Prasads contention is that at that time, law was that if the rent is not received by the landlord then tenant is to tender every time alongwith its arrears. He has referred to 1971 BLJR 1073 Mahabir Prasad Saraogi and Ors. V/s. Sibhuti Mohan Bhattarcharya and Ors. 28. Against this, Mr. Debi Prasads contention is that at that time, law was that if the rent is not received by the landlord then tenant is to tender every time alongwith its arrears. He has referred to 1971 BLJR 1073 Mahabir Prasad Saraogi and Ors. V/s. Sibhuti Mohan Bhattarcharya and Ors. wherein it was held that the previous rents should also be repeated again and again while sending current rent by Money Order, but that law has been changed but according to Mr. Debi Prasad as that was the prevalent law at that time the defendants had remitted the rent in the month of September again. He has also referred to Ext. B/20 to show that not only for once such repeatation was made on other occasion also the repeatation, was made regarding sending of rent. Thus, according to Mr. Debi Prasad on this ground Ext. B/23 alongwith Ext. C cannot be disbelieved. Moreover, there is no plea from the side of the plaintiff that Ext. B/23 is a forged document. 29. It is very peculiar to note here that this sending of rent on 21.9.1966 the plaintiff has produced a photo copy of the same. According to the defendants, the plaintiff has got the photo copy of the Money Order when the postal peon had tendered it to the plaintiffs. This shows the attitude and behaviour and conduct of the landlord to always in search of finding technical flow for making defendant a defaulter. Thus, in the circumstances, I find that this document of sending of rent for the month of June and July, 1966 on 21.9.1966 again cannot nullify Ext. B/23 together with Ext. C. 30. Mr. N.K. Prasad has given much stress on non proof of sending of Money Order on 4.7.19766 as claimed from the side of the defendant. According to him, it is found from the evidence of the defendants witness that postal receipts regarding sending of Money Order were always being tagged with the reused Money Order coupon and kept in custody but in this case sending of Ext. B/23 on 4.7.1966, there is no evidence that such Money Order receipt was lost and as such according to Mr. N.K. Prasad, there is suppression from the side of the defendant. 31. I am not much convicted with such submission. B/23 on 4.7.1966, there is no evidence that such Money Order receipt was lost and as such according to Mr. N.K. Prasad, there is suppression from the side of the defendant. 31. I am not much convicted with such submission. It is true that tendering could not: be proved by positive evidence on production of Money Order receipt but after remand. DW-11 has proved the message portion in Ext. B/23 wherein the date 4.7.1966 has been mentioned and when Ext. B/23 has been proved alongwith its message portion and also the refusal portion it is fit to be considered for the purpose of holding whether tendering was there or not. In respect of sending of Money Order on 4.7.1966 the defendant has relied on the Account Books as mentioned earlier. But, according to the plaintiffs-landlord those Account Book cannot be relied on as the same remained in custody of the: defendants for a long time. That those account books were maintained in regular course of business is found to be proved as the case was relied in the Money suits where it was filed. How the submission has been made and has also been observed by the learned Appellate Court regarding long custody of the Account Books with the defendant could not be understood. The said Money suit was decreed long after and the Account Books were taken back and definitely re-submitted before the judgment was passed and afterwards it has been filed in this Court. I do not find any cogent reasons of adverse inference being drawn regarding doubtedness of the account maintained in regular course of business by the defendant when one Court has already held the same to be maintained in regular course of business. In that Account Books, remittance has been mentioned on 4.7.1966 so message portion of Ext. B/23 together with Account Books proved that Money Order was sent on 4.7.1966. But Mr. N.K. Prasad submitted that Ext. 12, the Postman receipt book belies the defence version as in that book there is no entry regarding the date., 4.7.1966. 32. It is peculiar that this Ext. 12 is the post men book kept in regular business by the Post Office and the postal peons. But Mr. N.K. Prasad submitted that Ext. 12, the Postman receipt book belies the defence version as in that book there is no entry regarding the date., 4.7.1966. 32. It is peculiar that this Ext. 12 is the post men book kept in regular business by the Post Office and the postal peons. How this record has come into the hands of the plaintiff-landlord had never been explained and as the document is not coming from proper custody the same cannot be taken into consideration for the purpose of proof or otherwise of any entry in it. 33. Mr. N.K. Prasad again referred to Sec. 34 of the Evidence Act regarding the Account Books and according to him the same can be used and proved for the purpose of liability alone and not for any other purposes. It could not be proved regarding the all act of the person maintaining the accounts and in this respect he has referred to the judgment of the Punjab and Haryana High Court as reported in -- Suresh Kumar alias Surest Chand V/s. Mewa Ram and Ors. It is not a suit for money against the debtor or any customer but an account maintained can be proved for co-lateral purposes about his own act also. The defendant is not relying on it alone but a supporting one for the purpose of saying his sending of Money Orders and debited from his account on 4.7.1966. About, Ext. C, it is the submission of Mr. N.K. Prasad that it could not be formally proved even after remand also. It is true that the same could not be proved on production of Jagdish Ram as he was already dead by this time. Mr. Prasad again takes the previous plea of laches on the part of the defendant in not bringing Jagdish Ram to the witness box when he was alive, although he was once cited as a witness. These, laches were mentioned by the 1st Appellate Court also and as such discarded Ext. C. But, in my view, the laches on the part of the defendant had already been condoned by the Supreme Court while sending it back on remand giving opportunity to prove Ext. These, laches were mentioned by the 1st Appellate Court also and as such discarded Ext. C. But, in my view, the laches on the part of the defendant had already been condoned by the Supreme Court while sending it back on remand giving opportunity to prove Ext. C formally but alas when it came on remand the person who could prove it formally was dead and as such it has been proved by bringing witness from the Post Office who is acquainted with the handwriting of Jagdish Ram and he has proved it. According to Mr. N.K. Prasad, such proof is not a formal proof. 34. I am not convinced with his submission. If a person is dead and another person knowing about his handwriting can very well be brought to prove the handwriting of the deceased person. Thus, Ext. C has been formally proved after remand and the same must be relied on. 35. Let us take the worst view that submitting of Money Order on 4.7.1966 could not proved by the defendant but when Ext. B/23 alongwith Ext. C on it and the message portion had been proved not by the partisan witness alone but by independent witness from the Postal Department also then the matter remains that on 16.7.1966 the Money Order sent by the defendant-petitioner had been refused. On this document, there can be a legal presumption that Money Order must have been sent atleast before 16.7.1966 then tendering was there definitely within the month of July, 1966. Hence, there cannot be any default as contemplated under Sec. 11(1)(d) of the B.B.C. Act. 36. Thus, from the discussions above, I find that the learned Appellate Court had approached the matter on wrong angle and on negative way and as such came to as erroneous finding. 37. This Second Appeal was at the admission stage under Order XLI, Rule 11 C.P.C. but considering the long pendency of the Eviction suit, this Court though it proper to hear the Second Appeal on merit and as such notice was to hear the Second Appeal on merit and as such notice was given to the respondent and lower Court records were called for vide order dated 18.11.1996 and then full fledged hearing was made. 38. 38. As per discussions and decision arrived at as mentioned above, this Second Appeal is hereby allowed and the judgment and decree of eviction against these defendants-petitioners is hereby set aside but in the circumstances, no order as to costs.