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2009 DIGILAW 526 (JK)

Ab. Ahad Wani v. Halima

2009-11-03

J.P.SINGH

body2009
1. M/s Abdul Ahad Wani and Manzoor Ahmed Wani have filed this Appeal against the 4th Additional District Judge, Srinagars Decree of July 24, 2001, on respondents predecessor-in-interests Suit, for Declaration, Possession, Mesne Profits and Rendition of Accounts, directing the appellants to handover the vacant and peaceful possession of the suit shop situated at Lal Chowk, Amirakadal Road, Srinagar, to the plaintiff and for Compensation at the rate of Rs.3,000/- per month from April, 1996 onwards, till vacation of the shop. 2. Respondents too have filed Cross Objections, supporting the Decree besides seeking additional Preliminary Decree for assessment of Mesne Profits at the rate of Rs.10,000/- per month. 3. Facts leading to the filing of the Appeal, may be stated thus: A shop measuring 360 Sqft situated at Lal Chowk, Amirakadal Road, Srinagar, where the appellants are running business under the name and style of "Shoe Shoppe", is stated to have been given on Licence to the appellants by a written and registered Licence Deed of June 18, 1990, for a period of three years at monthly licence fee of Rs. 425/-, by Ghulam Abas Rather- plaintiff, the predecessor-in-interest of the herein respondents. He is, however, stated to have been, under duress, later made to accept monthly licence fee of Rs. 450/-, in terms of an unregistered Licence Deed of December 03, 1993. 4. Pleading appellants possession over the suit shop after March 31, 1996 unauthorised, the plaintiff filed a suit, seeking reliefs, summary whereof, for facility of reference, is reproduced hereunder:- a) Decree for declaration that the plaintiff was the owner of suit shop/ premises 360 sqft.. b) Mandatory Injunction, directing the defendants to restore quiet, peaceful and vacant possession of the suit shop. c) A decree for damages at the rate of Rs. 5000/- per month as mesne profit from April 01, 1996. d) A decree for appropriation of each day huge profits, derived by the defendants from unauthorised and illegal occupation and use of the suit shop. e) A preliminary decree in terms of the relief clauses (c) and (d). f) Costs of the suit." 5. 5000/- per month as mesne profit from April 01, 1996. d) A decree for appropriation of each day huge profits, derived by the defendants from unauthorised and illegal occupation and use of the suit shop. e) A preliminary decree in terms of the relief clauses (c) and (d). f) Costs of the suit." 5. The plaintiff had sought Decree against the appellants on the ground that they were in unauthorised occupation of the shop, which was required by him for his own and his dependents necessity, additionally urging that the appellants were not entitled to the protection of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, because their monthly income was more than Rs. 40,000/-. 6. The appellants, pleaded that they had entered into a partnership with the erstwhile tenant in the Suit shop and on its dissolution, had retained the possession of the shop as tenants thereof. The plaintiff had thereafter filed a Suit against the original tenant, which was, however, later compromised, And, in terms thereof, a fresh Lease came into being acknowledging them to be plaintiffs tenants in the shop for a period of three years, at the monthly rental of Rs. 400/-. They invested huge money in renovating the shop and after the expiry of the initial period of Lease, it was further renewed upto March 31, 1990, when the rent of the shop was mutually agreed to be Rs. 425/- per month. Referring to the terms of the Lease Deed and the conduct of the parties, the appellants pleaded the Lease inter-parties, Perpetual in nature. 7. Contesting plaintiffs entitlement to Decree in the suit, the appellants pleaded protection of the Jammu and Kashmir Houses and Shops Rent Control Act, projecting their status in the shop as that of a tenant and not as Licencee, as alleged by the plaintiff. 8. The trial Court accordingly, put the parties to issues, which are reproduced as under : 1. Whether the defendants have taken suit shop on licence through written licence deed dated 18-6-1990 for three years? OPP 2. Whether the plaintiff under duress was made to accept on 3-12-1993 the licence fee of Rs. 450/- per month? OPP 3. Whether the defendant is in illegal possession of the suit shop? OPP 4. Whether the plaintiff is entitled to Rs. 5000/- per month as mesne profit? OPP 5. OPP 2. Whether the plaintiff under duress was made to accept on 3-12-1993 the licence fee of Rs. 450/- per month? OPP 3. Whether the defendant is in illegal possession of the suit shop? OPP 4. Whether the plaintiff is entitled to Rs. 5000/- per month as mesne profit? OPP 5. Whether the provisions of Rent Control Act have no application to suit property, if so how? OPP 6. Whether the court has no pecuniary jurisdiction to try the suit? OPD 7. Whether the suit has been wrongly valued? OPD 8. If Issue No. 1 and 2 are not proved, whether defendants have executed lease deed with plaintiff which is subsisting? OPD 9. What are the comparative advantage and disadvantageous of the parties in case of ejectment ? OPD 10. Whether the defendants have invested huge amount in renovation of suit property if so, what is its effect ? OPD 11. Whether the defendants are depositing the rent before the Rent Controller Officer? OPD 12. Whether the deed dated 18-6-1998 Annexure-P-1 was lease in perpetuity? OPD 13. Whether the plaintiff has no cause of action? OPD 14. Whether the defendants are entitled to continue to remain in possession of the suit property as tenants? OPD 15. Relief." 9. Besides appearing as his own witness, the plaintiff examined Abdul Gani Nigroo, Ghulam Mohd. Sheikh, Ghulam Rasool Rather and Mohd. Yasin Sunkar, as his witnesses, whereas the defendants, besides examining themselves produced Mohd. Muteem Wani, Sheikh Riyaz and Haji Mehraj-ud-Din as their witnesses. 10. After appreciating the evidence of the parties and considering the material on its records, the trial Court came to the following conclusions:- I) The relationship between the parties to the suit, vis-a-vis the suit shop, was that of the Landlord and tenant. II) The Lease between the parties was not Perpetual but was for the period fixed in the last Lease Deed between the parties. III) The appellants possession over the shop, after the expiry of the period of Lease, was unlawful and unauthorised. IV) The income of the appellants was Rs.60,000/- per annum. V) The appellants had spent huge amount of money in the renovation of the shop. VI) The appellants were liable to pay compensation of Rs.3,000/- per month to the plaintiff, until the shop was vacated by them. 11. Based on the aforementioned findings, the trial Court decreed the plaintiffs Suit, deciding Issue Nos. V) The appellants had spent huge amount of money in the renovation of the shop. VI) The appellants were liable to pay compensation of Rs.3,000/- per month to the plaintiff, until the shop was vacated by them. 11. Based on the aforementioned findings, the trial Court decreed the plaintiffs Suit, deciding Issue Nos. 1, 2 and 8 against the plaintiff and Issue Nos. 3, 4 and 5 in his favour, besides Issue Nos. 6,7,9,11,12,13 and 14 against the appellants. 12. Questioning the findings of the trial Court on the issues decided against them and in favour of the plaintiff, the appellants learned counsel urged that the finding of the trial Court holding that the appellants were not entitled to the protection of the Jammu and Kashmir Houses and Shops Rent Control Act, was illegal and unwarranted, as the plaintiff had failed to prove that the appellants Annual income exceeded Rs. 60,000/- as contemplated by Section 1(3) (iii) of the Jammu and Kashmir Houses and Shops Rent Control Act. 13. He next contended that the trial Courts findings on Issue No. 3 that the appellants possession over the shop was unauthorised, too was illegal, even if one were to consider the applicability of the provisions of the Transfer of Property Act to the lease in question, in view of the position admitted by the plaintiff that he had been receiving Rs.450/- from the appellants, after the expiry of period fixed in the Deed, which the plaintiff had claimed to be the Licence Fee and the appellants would call it as rent. Having accepted rent from the appellants, after the expiry of the period of Lease, the appellants status was that of a tenant Holding Over and not of an unauthorised occupant, as held by the trial Court, argued the learned counsel. 14. Having accepted rent from the appellants, after the expiry of the period of Lease, the appellants status was that of a tenant Holding Over and not of an unauthorised occupant, as held by the trial Court, argued the learned counsel. 14. Respondents learned counsel, on the other hand, while supporting the findings of the trial Court on the issues decided in favour of the respondents and against the appellants, And defending the Decree, prayed for modification therein to the extent of raising the quantum of Mesne profits to Rs.10,000/- per month, relying on the Written Submissions and the case law cited therein, to support the respondents submission that after the determination of three years period as indicated in the unregistered Lease Deed, the appellants were under an obligation to deliver vacant and peaceful possession of the Suit shop to the respondents in view of the provisions of Section 111 of the Transfer of Property Act. 15. I have considered the appellants counsels submissions and gone through the Written Submissions filed by the respondents Advocate. 16. The findings of the trial Court on Issue Nos. 1 and 2 that the appellants had obtained the suit shop on lease for a fixed period, and not on licence, as alleged by the plaintiff, is supported by the Compromise Deed, which the parties had entered into in the plaintiffs earlier Suit against the appellants, being Suit No. 181 of 1984, wherein the appellants had been acknowledged by the plaintiff as his tenants in the suit shop, and by the subsequent two Lease Deeds, one registered with Sub- Registrar, Srinagar and the other, an unregistered one, admitted to have been executed by the plaintiff. The contents of both these Lease Deeds, demonstrate unmistakably that the relationship between the parties vis-a-vis the Suit shop was that of the Landlord and Tenant. 17. Even otherwise there is abundant evidence on the records to support the trial Courts finding that the relationship of the parties in respect of the Suit shops was that of a Landlord and Tenant. This apart, the respondents do not dispute this finding of the trial Court in the Written Submissions. 18. Even otherwise, finding no material on the records in support of the plaintiffs plea that the appellants were the Licensees in the Suit shop, I find the trial Courts finding on issue Nos. 1 and 2 well merited. 19. This apart, the respondents do not dispute this finding of the trial Court in the Written Submissions. 18. Even otherwise, finding no material on the records in support of the plaintiffs plea that the appellants were the Licensees in the Suit shop, I find the trial Courts finding on issue Nos. 1 and 2 well merited. 19. In view of the above finding of the trial Court on the two issues aforementioned, the controversy between the parties has been narrowed down in view of the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, hereinafter to be referred as "the Act", for short. 20. This is so because the non obstante clause with which Section 11 of the Act, opens, governs the eviction of the tenants of the Houses and Shops, notwithstanding anything to the contrary contained in any other Act, Law, Order or Decree, meaning thereby that notwithstanding anything contrary contained in the provisions of the Transfer of Property Act, the eviction of the tenants, including those whose tenancy has expired, by efflux of time, would be governed by the provisions of the Act, provided, however, the Act was not otherwise inapplicable to the tenancy. 21. The question that therefore needs to be examined in the first instance, is the plaintiffs plea that the appellants were not entitled to the protection of the Act. 22. To determine the question aforesaid, the finding returned by the trial Court on Issue No. 5, that the provisions of the Act had no application to the tenancy in question, needs to be noticed. 23. While dealing with the issue, the trial Court has noticed that though the plaintiff had not brought any evidence on records to prove that the Annual income of the appellants exceeded Rs.60,000/-, yet influenced by the fact that the employees of the defendants were getting Rs. 1500/- to 2000/- per month as salary and the shop had a telephone facility too, so in the absence of any evidence by the appellants that their income was not more than Rs. 60,000/- per annum, the income had to be presumed to be more than Rs. 60,000/- per annum. 24. Concluding portion of the finding of the trial Court, in this respect, reads thus : "As already mentioned here-in-above cogent evidence on this issue is lacking. 60,000/- per annum, the income had to be presumed to be more than Rs. 60,000/- per annum. 24. Concluding portion of the finding of the trial Court, in this respect, reads thus : "As already mentioned here-in-above cogent evidence on this issue is lacking. But the court has to take note of the fact that it was not easy for the plaintiff to produce cogent evidence regarding this issue. After all what is the annual income of the defendants will be very well known to the defendants alone or those who keep their accounts . It was very difficult for the plaintiff to arrange for such an evidence. This being a civil case , the issues are to be disposed of on the basis of preponderance of evidence. As already mentioned here-in-above the statement of the defendants is enough to presume that the net annual income of the defendants is more than Rs. 60,000/- per annum in the case in hand. Therefore, it is held that the provisions of Houses and Shops Rent Control Act have no application to the suit property." 25. To examine as to whether or not the aforementioned finding of the trial Court that the appellants Annual income was more than Rs. 60,000/-, could be sustained in the absence of requisite evidence, proving as a fact, the appellants income as aforementioned, reference needs to be made to what was held by this Court while dealing with a similar question in Mohd. Ashraf Ahanger Vs Ghulam Mohd. Shah and ors. reported as AIR 1982 Jammu & Kashmir 11, where it was held as follows:- "Sub-section (1) of Section 11 of the Act reads as under:- (1) Protection of a tenant against eviction.-- (1) Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any house or shop shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired". On its plain terms, every suit for ejectment of a tenant, irrespective of what is contained in any other Act, law, order or decree of any court, shall be governed by the Act, and a decree for ejectment of the tenant would be passed only on anyone or more of the grounds mentioned in this section. On its plain terms, every suit for ejectment of a tenant, irrespective of what is contained in any other Act, law, order or decree of any court, shall be governed by the Act, and a decree for ejectment of the tenant would be passed only on anyone or more of the grounds mentioned in this section. The Act is obviously a special legislation in so far as ejectment of tenants is concerned. It will thus clearly override the general provisions of ejectment of tenants contained in the Transfer of Property Act on the principle generalia specialibus non derogant. Once it is shown that the Act applies to the area in which the suit property is situated, the case would be presumed to be governed by its provisions, unless it is shown by the party interested in excluding its application that either the property or the tenant falls under the exemptions contained in sub-section (3) of Section 1 of the Act. There can be no quarrel the proposition propounded by Mr. Tassaduque that exception or exemption has to be pleaded and proved by the party who wants to take benefit of the same. But, the question that still remains to be answered is: who is to plead and prove the exemption contained in sub-sec. (3) to his benefit in a suit for ejectment? The answer is that the exemption has to be pleaded and proved by the plaintiff who wants to exclude the application of the special provisions of the Act which indubitably abridges his right to evict his tenant, so as to bring his case within the four corners of the Transfer of Property Act. It is the landlord and not the tenant who would be benefitted on proof of the exemption. In the instant case, much less to speak of its proof, not even a pleading has been made by the plaintiffs/respondents that the suit is not governed by the provisions of the Act, and if so how. On the other hand, the averments made in the plaint clearly indicate that the respondents themselves treated the suit as one governed by the provisions of the Act. A similar view was taken by one of us (Kotwal J.) in 1980 Srinagar LJ 145." 26. On the other hand, the averments made in the plaint clearly indicate that the respondents themselves treated the suit as one governed by the provisions of the Act. A similar view was taken by one of us (Kotwal J.) in 1980 Srinagar LJ 145." 26. Another question which needs to be considered before coming to the point in issue, is as to what the expression "Net Income", appearing in the explanation appended to Section 1(3)(iii) of the Act, means. The question is no longer res integra and stands explained by this Court in Union of India Vs Narain Singh and Ors. reported as AIR 1976 J&K 5, where while dealing with the question, this Court had held as follows:- "It remains now to be seen as to whether the Union of India can invoke cl. (iii) of Section 1(3) of the Act. It is well-settled that the net income as contemplated by the aforesaid cl. (iii) of Section 1(3) of the Act means the income that remains with a tenant after compulsory deduction, say, for instance, by way of tax, or the income which remains after deducting from the total receipts the capital invested and the expenses incurred to secure the total receipts, depending on whether the tenant belongs to a fixed income group as in the former case or to a business community as in the latter case. No material has been placed before us to show that the net income of the Union of India does not exceed Rs.20,000/-. In this view of the matter, the appellant cannot take advantage of cl.(iii) of Section 1(3) of the Act. We are fortified in this view by an unreported decision of a Division Bench of this Court in Civil first Appeal No. 3 of 1973 entitled Rawel Singh v. Union of India, decided on May 2, 1974. In the result the appeal fails and is hereby dismissed, but without any order as to costs." 27. We are fortified in this view by an unreported decision of a Division Bench of this Court in Civil first Appeal No. 3 of 1973 entitled Rawel Singh v. Union of India, decided on May 2, 1974. In the result the appeal fails and is hereby dismissed, but without any order as to costs." 27. In view of the above mentioned legal position, demonstrated by the law laid down by this Court, a Landlord, desirous of establishing the inapplicability of the Act to a tenancy in respect of a house or a shop, is required to prove that the "Net Income" of the tenant i.e. the income which remains with him after compulsory deductions under any law for the time being in force, and the expenses incurred to secure the total receipts, was more than the limit prescribed in Section 1(3)(iii) of the Act, which according to the amended law is Rs.60,000/- per annum. He is additionally required to prove that such Net Income was for a period of 12 months commencing from the month of tenancy and immediately before the filing of the suit. 28. It is seen that though the plaintiff had pleaded that the Annual income of the appellants was more than Rs. 12.00 lac, yet no evidence was led by him in this behalf to prove that the Net Income of the appellants, as contemplated by Section 1(3)(iii) of the Act, within 12 months immediately before the filing of the Suit, commencing from the month of the tenancy, was more than Rs.60,000/- 29. Omission of the appellants to indicate in their statements as to what was their annual income, would not, in my opinion, raise any such presumption, as has been drawn by the trial Court, in holding that their net annual income was more than Rs. 60,000/-. The plaintiff does not even otherwise, appear to have been eager to prove the appellants net annual income as contemplated by the provisions of the Act and probably for this reason, had opted not to compel production of the appellants records or otherwise proved, from other sources, as required by law, the net annual income of the appellants. 30. 60,000/-. The plaintiff does not even otherwise, appear to have been eager to prove the appellants net annual income as contemplated by the provisions of the Act and probably for this reason, had opted not to compel production of the appellants records or otherwise proved, from other sources, as required by law, the net annual income of the appellants. 30. The finding of the trial Court on Issue No. 5 holding the appellants income more than Rs.60,000/- per annum and them disentitled to the protection of the Act, based on presumption, without being supported by requisite evidence to sustain it, is thus unwarranted and needs to be reversed. 31. Accordingly, reversing the finding of the trial Court, Issue No. 5 is decided against the plaintiff and in favour of the appellants holding that the appellants are entitled to the protection under the Act. All the pleas raised by the plaintiff-respondents in their Written Submissions and in support of the Decree and Judgment appealed against, on the ground that after the expiry of the period of lease, the appellants possession over the premises were unauthorised and they were liable to handover the possession of the shop to the plaintiff, therefore, fail, in the light of the Non obstante clause appearing in Section 11 (1) of the Act, in terms whereof the plaintiff was disentitled to maintain the suit to seek appellants-tenants eviction on grounds other than those prescribed under Section 11 of the Act. Section 11 of the Act is reproduced hereunder, for reference:- "11. Protection of a tenant against eviction. 1. Section 11 of the Act is reproduced hereunder, for reference:- "11. Protection of a tenant against eviction. 1. Notwithstanding anything to the contrary in any other Act or law, no order of decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired: Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession-- (a) against a tenant who has transferred his tenancy right in whole or in part with possession otherwise than by sub-lease; (b) against such transferee; (c) against a tenant who has sub-let the whole or a major portion of the house or shop for more than seven consecutive months: Provided that if a tenant, who has sub-let major portion of the house or shop, agrees to possess as a tenant the portion of the house or shop not sub-let on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the house or shop sub-let and fix proportionately fair rent for the portion kept in possession of such tenant, which portion shall thenceforth constitute house or shop under clause (3) or clause (5) of section 2 and the rent so fixed shall be deemed fair rent fixed under section 8: Provided further that no order or decree for the recovery of possession shall be made in favour of the landlord if the tenant has sub-let the house or shop or portion thereof with the written consent of the owner; (d) where the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of section 108 of the Transfer of Property Act, 1977; (e) where the tenant has been using the house or shop or any part or allowing the house or shop or any part to be used for immoral or illegal purposes: (ee) where the tenant fails to use or occupy the house or shop for a period of not less than seven consecutive months;) (f) where the condition of the house or shop has materially deteriorated owing to acts of waste by, or negligence or default of the tenant, or of any person residing with the tenant or for whose behaviour the tenant is responsible; (g) where the tenant has been guilty of conduct which is a nuisance or annoyance to occupiers of adjoining or neighbouring houses and shops, including the landlord; (h) where the house or shop is reasonably required by the landlord either for purposes of building or re-building, or for his own occupation or for the occupation of any person for whose benefit the house or shop is held: Provided that all sub-tenants in the house or shop are made parties to the suit and allowed opportunity of contesting claim to decree for ejectment. Explanation.-- The Court in determining the reasonableness of requirement for purposes of building or re-building shall have regard to the comparative public benefit or disadvantage by extending or diminishing accommodation, and in determining reasonableness of requirement for occupation shall have regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant: Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the house or shop and allowing the tenant to continue occupation of the rest, and the tenant agrees to such occupation, the Court shall pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the house or shop within clause (3) or clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed under section 8; (i) subject to the provisions of Section 12, where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 14: Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of (thirty) days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period; (j) where the house was let to the tenant for use as a residence by reason of his being in the service or employment of the landlord, and the tenant has ceased to be in such service or employment: Provided that where the tenant is a workman who has been discharged or dismissed by the landlord from his service or employment in contravention of the provisions of the Industrial Disputes Act, 1947, he shall not be liable to be evicted until the competent authority under that Act confirms the order of discharge or dismissal made against him by the landlord; (k) where the house or shop is required for the immediate purpose of demolition ordered by any local authority or other competent authority." 32. In view of the provisions of Section 11 of the Act, the plaintiff could succeed in appellants eviction from the suit shop only if he had pleaded and proved any one or the other grounds mentioned in the above quoted Section. 33. Having failed to plead that the suit shop was reasonably required by him and the parties having not been put to any such issue for determining the reasonable requirement of the plaintiff for his use and occupation of the suit shop, as contemplated by Section 11(h) of the Act, the finding of the trial Court on Issue No. 9, that the comparative advantage was in favour of the plaintiff is unjustified, in the absence of any determination by the Court as to whether the suit shop was reasonably required by the plaintiff for his own occupation. 34. In any case the finding returned by the trial Court on Issue No.9, has been even otherwise, rendered meaningless, in view of the plaintiffs death during the pendency of the litigation. 35. This apart the plaintiff, as his pleadings so indicate, had not sought the appellants eviction under Section 11(h) of the Act and had rather claimed it merely because he was the owner of the Suit shop, supporting his claim on the strength of the provisions of the Transfer of Property Act which as held above, were not applicable to the tenancy in question which was governed by the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act. 36. In above view of the matter, the Decree passed by the trial Court for appellants ejectment from the Suit shop and Mesne Profits, on the ground that the appellants, because of the expiry of the term of their Lease, were in unauthorised occupation of the Shop, on the basis of the findings returned on Issue Nos. 3,4,5,9,11,13 & 14, cannot be sustained, being unwarranted and against the provisions of Section 11 of the Jammu and Kashmir Houses and Shops Rent Control Act. 37. Findings of the trial Court on Issue Nos. 3,4,5,9,11,13 & 14 is, accordingly, set aside and reversed. 38. For all what has been said above, appellants appeal, therefore, succeeds and is, accordingly, allowed. Decree dated July 24, 2001 of Learned 4th Additional District Judge, Srinagar is, therefore, set aside directing dismissal of the respondents-plaintiffs Suit against the appellants, with costs throughout. 39. 3,4,5,9,11,13 & 14 is, accordingly, set aside and reversed. 38. For all what has been said above, appellants appeal, therefore, succeeds and is, accordingly, allowed. Decree dated July 24, 2001 of Learned 4th Additional District Judge, Srinagar is, therefore, set aside directing dismissal of the respondents-plaintiffs Suit against the appellants, with costs throughout. 39. Resultantly, respondents Cross Objections shall stand rejected. Registrar to draw Decree.