JUDGMENT
Jyotirmay Bhattacharya, J.
1. This second appeal is directed against the judgment and decree dated 15th June 1992 passed by the learned Assistant District Judge, Sealdah in Title Appeal No. 92 of 1991 reversing the judgment and decree dated 31st July 1991 passed by the learned 3rd Court of Munsif, Sealdah in Title Suit No. 216 of 1986.
2. The appellant before this Court is the plaintiff (landlord) in a suit for eviction on the ground of reasonable requirement.
3. The plaintiff appellant filed a suit for eviction against the defendant respondent on the ground of reasonable requirement of the plaintiff and the members of his family.
4. At the time of institution of the suit the family of the plaintiff consisted of the plaintiff himself, his wife, a son of marriageable age and a married daughter who often used to visit her ailing mother to look after her. Apart from those family members, the plaintiffs had a full time maidservant in his family. The accommodation available to the plaintiff comprises of two living rooms on the first floor, a kitchen on the roof and a privy on the part of the premises in between the two floors. Thus, the accommodation which was available to the plaintiff in the said premises was insufficient to meet his requirement. The plaintiff claimed that the plaintiff who was the owner of the suit premises had no other reasonable suitable accommodation elsewhere. Accordingly, the plaintiff filed the said suit for eviction, as the plaintiff reasonably required an additional bedroom, one drawing room and a thakur ghar in addition to his existing accommodation.
5. During the pendency of the said suit, the size of the family of the plaintiff increased on account of the marriage of the son of the plaintiff. Thus, the plaintiff got another additional member in his family.
6. The defendant/respondent contested the said suit denying the requirement of the plaintiff, as claimed in the said suit. The defendant claimed that the married daughter is staying with her children at her matrimonial home, though occasionally comes to the suit premises but does not spend night in her paternal house. Accordingly, the defendant claimed that the plaintiff cannot require any additional room to accommodate his daughter in the suit premises during her occasional visit. The defendant further claimed that the plaintiff is a retired person and as such he does not require any drawing room in the suit premises. According to the defendant, the accommodation which is available to the plaintiff in the said premises is sufficient to meet his requirement. Thus, though the ownership of the plaintiff/ appellant in the suit premises was not challenged in the said suit but the requirement of the plaintiff was denied and disputed by the defendant in his written statement.
7. The learned trial Judge, after considering the pleadings as well as the evidence of the respective parties passed a decree for eviction against the defendant/respondent by holding that the plaintiff reasonably required the suit premises for his own requirement as well as for the requirement of his family members.
8. The learned trial Judge held that the plaintiff required one bedroom for self and his wife, one bedroom for his married son and daughter-in-law, one drawing room which can also be used for accommodating guests including the married daughter. According to the learned trial Court, an accommodation is necessary for the married daughter during her occasional visit in her paternal house irrespective of illness of her mother.
9. The learned trial Judge alter considering the size of the covered varandah measuring about 13′-1″ x 5′, held that the said space cannot be used as drawing room. However, the ‘L’ shaped room on the roof of the said premises which is being used by the plaintiff as thakur ghar was found to be sufficient for the plaintiff for the said requirement.
10. Thus, on the aforesaid findings, the learned trial Judge decreed the said suit by holding that the plaintiff reasonably required the suit premises, as he had no other reasonable suitable accommodation elsewhere.
11. Being aggrieved by and dissatisfied with the said decree, the tenant/defendant preferred an appeal being Title Appeal No. 92 of 1991 before the learned Assistant District Judge at Sealdah.
12. The learned Appellate Court reversed the said decree by holding that the requirement of the plaintiff for one drawing room is neither so acute nor so urgent so as to enable the Court to pass a decree for evicting a lawful tenant. According to the learned first appellate Court, in these days of acute residential problem in a busy Metropolis like Calcutta most of the families do not have any drawing room from the strictest sense of the term. As such, the learned first appellate Court found that it would be a mere luxury to afford a drawing room to the plaintiff by evicting a lawful tenant from the suit property.
13. The learned first appellate Court further held that, however, in case of any necessity, the Meter Room or the space in between the two rooms which is used as passage for the ingress and egress between the two rooms, can be used by the plaintiff to accommodate his guests. The requirement of the married daughter of the plaintiff was also ignored by the learned first appellate Court on the ground that the married daughter is not the only issue of the plaintiff. As such, no separate room can be provided to the plaintiff to accommodate such a married daughter during the time of her occasional visit in her paternal house.
14. The learned first appellate Court also found that the L shaped room which is now being used by the plaintiff/appellant as Thakur Ghar is sufficient for the said purpose and as such, the plaintiff does not require any additional room for thakur ghar as there is neither any permanent deity nor any priest for performing daily puja in the plaintiffs family.
15. Accordingly, the judgment and decree passed by the learned trial Judge was reversed by the learned first appellate Court on the ground that the necessity of the plaintiff was not so acute and the need was not so urgent for passing the decree of eviction on the ground of reasonable requirement.
16. Such a decree is under challenge in this second appeal.
17. Since no substantial question of law was formulated by this Court at the time of admission of the said appeal, the following substantial questions of law were formulated by this Court in course of hearing of this appeal.
“1. For that the Court of Appeal below erred substantially in thrusting his own choice upon the plaintiffs/landlords requirement without practical approach instructed by the realities of life and without any regard to the landlords genuine need of the suit premises for his own use and occupation.
2. For that the Court of Appeal below erred in failing to appreciate the scope of the term “reasonable requirement” and substantially erred in law by proceeding upon the view “in these days of acute residential problem in a busy metropolis like Calcutta most of the families do not have any drawing room from the strictest sense of the term” and it will be a luxury to afford a drawing room to the plaintiff by evicting a lawful tenant.
3. For that the Court of appeal below erred in law in refusing a guest room for accommodating the married daughter.
4. For that the Court of appeal below failed to appreciate the plaintiffs need of separate drawing and dining room.
5. For that having regard to the subsequent events that the grandson of the original plaintiff (now eleven years of age and a student of Class-V) needs separate accommodation for his residence and study.
6. For that the Court of appeal below failed to notice that some of the rooms are very small.
7. Whether the appellate Court while considering a second appeal can consider the changed requirement of the substituted heirs of the original plaintiff/landlord in an altered set of facts which took place pending the second appeal.”
18. Let me now consider the merit of the instant appeal with reference to the substantial questions of law, as formulated above.
19. Before entering into the merit of the said appeal, I must indicate certain changes in the size of the plaintiffs family and consequently the change in the nature of requirement of the present appellant.
20. Admittedly, both the original plaintiff and his wife died during the pendency of this appeal. Now the son and the married daughter of the original plaintiff are the substituted appellants in this appeal. The reduction in the size of the family of the original plaintiff is an undisputed fact and the same is apparent from the record itself.
21. Another important change which has taken place during the pendency of this appeal has also been brought on record by the appellants by way of filing an application for taking note of subsequent event being C.A.N. No. 6897 of 2004, on 12th August 2004. The said change is that one son, viz., Aveek Paul was born on 1st September 1993 out of the wedlock of the appellant No. 1 and his wife. It was also stated in the said application that the said son of the appellant No. 1 who is presently aged about 11 years, is now reading in class V at Narendranath Vidyamandir.
22. The appellants, thus, claim that the appellants require one separate bedroom-cum-study room for the said son of the appellant No. 1, as the said grown up son cannot be accommodated in the bedroom of the said appellant. The birth certificate of the said son of the appellant and the receipt showing payment of tuition fees of the said son of the appellant No. 1 issued by the Narendranath Vidyamandir, are also annexed to the said affidavit.
23. The defendant/respondent also used an affidavit to the said application wherein the addition of one additional member to the family, his date of birth and/or nature of studies, he is prosecuting now, have not been denied by the respondent. The respondent, however, claims that the said son of the appellant No. 1 who is now aged about 11 years old only can be accommodated in the existing accommodation. The respondent, however, claimed that since the said requirement has been introduced for the first time in appeal without amendment of plaint, such requirement of the plaintiff cannot be considered by this Court in this second appeal.
24. It was further claimed by the said respondent that one additional room on the second floor (ultimate roof of the said premises) was constructed by the appellant during the pendency of this appeal. Accordingly, the requirement of the appellant has been satisfied by the said additional accommodation.
25. The construction of such additional room on the ultimate roof of the said premises was denied by the appellant in his affidavit-of-reply. It may be mentioned herein that an application for taking note of subsequent event was also filed by the respondent herein for bringing on record the said fact regarding construction of the additional room on the second floor of the said premises. However, the said application was subsequently abandoned and accordingly, the same stood rejected as not pressed by the respondent.
26. It is now settled position in law that in a suit for eviction on the ground of reasonable requirement, the Court must be satisfied with regard to the actual requirement of the plaintiff (landlord) as on the date of passing of the ultimate decree. Accordingly, in a suit of this nature the Court, before passing the ultimate decree for eviction must consider not only the requirement of the plaintiff as on the date of filing of the suit but also the requirement of the plaintiff as on the date of passing of the decree. Accordingly, all changes which took place regarding the requirement of the plaintiff (landlord) during the pendency of the suit and/or appeal arising therefrom, should be taken note of by the Court before passing a decree for eviction on the ground of reasonable requirement.
27. If that be the law, then this Court while considering the merit of this appeal cannot ignore the subsequent events which took place during the pendency of the appeal, causing a change not only in the size of the family of the landlord but also in the nature and extent of the requirement of the landlord.
28. Of course the normal rule is, in a case where changes occur on account of happening of such subsequent event, the appellate Court is required to remit the matter to the Court below for fresh disposal with an opportunity to the parties to adduce evidence to prove their respective claims. But there are certain exceptions to such ordinary rule. The exception is that in a case where allegation of facts regarding such subsequent events which the Court is required to take note of, are admitted by the other party, there is no need to remit the matter to the Court below to collect oral evidence from them, as the admitted facts or the facts which are deemed to be admitted by non-traverse, need not be proved.
29. Thus, since in the instant case, I find that the subsequent events which were pleaded by the appellants in the said application, having not been denied by the respondent shall be deemed to be admitted by the respondent. Accordingly, by following the decision of the Hon’ble Supreme Court in the case of Ramesh Kumar v. Kesho Ram reported in 1992 supp (2) SCC 623, I hold that this Court can proceed to consider the merit of the appeal by taking note of the said subsequent events without even remitting the suit again to the Court below for collection of evidence.
30. Let me now consider the merit of this appeal by taking note of the requirement of the present appellants in such altered situation.
31. In order to get a decree for eviction on the ground of reasonable requirement under the West Bengal Premises Tenancy Act, the plaintiff/landlord must prove the following three requirements:
(i) The plaintiff must prove his ownership in the suit premises,
(ii) the plaintiff must prove that he reasonably requires the suit premises for his own requirement as well as for the requirement of the members of his family and
(iii) the plaintiff must also prove that the plaintiff is not in possession of any reasonably suitable accommodation elsewhere.
32. Let me now consider how far the appellants have been able to prove the said requirements in the altered situation.
33. So far as the first requirement is concerned, it appears that both the Courts below concurrently held that the ownership of the original plaintiff in respect of the suit premises is not disputed by the defendant/respondent. The Courts below found that the original plaintiff is the owner of the suit premises. After the death of the original plaintiff, the appellants being the son and daughter of the original plaintiff became the owner of the suit premises by inheritance. Accordingly, the first requirement is satisfied in the instant case.
34. Let me now consider how far the appellants are able to satisfy the second requirement, as aforesaid.
35. For ascertaining the same, I must mention the present size of the family of the appellant No. 1 and the nature of their requirements.
36. The family of the appellant No. 1 presently consists of the appellant No. 1, his wife and a son. The appellant No. 1 has also a married sister who also occasionally visits her paternal house. Thus, the basic requirement of the appellant No. 1’s family is as follows:
37. The appellant No. 1 requires one bedroom for himself and his wife. This requirement of the appellant No. 1 is not disputed.
38. The requirement of one room for the 11 years old son of the appellant No. 1 and another for drawing room where the appellant can also accommodate his guests including the married sister during her occasional visits in her paternal house, are disputed by the respondent as, according to the respondent, the said requirement of the appellant is not a reasonable one.
39. Mr. Dasgupta, learned senior advocate, appearing on behalf of the appellants, submitted that the learned Court below erred in holding that affording one drawing room to the plaintiff in these days of acute residential problem in a busy metropolis like Calcutta where most of the families do not have any drawing room from the strictest sense of the terms will be a luxury to the plaintiff.
40. Mr. Dasgupta further pointed out that the learned Court below should not have held that in case of necessities, the guests can be accommodated by the plaintiff either in the Meter Room or in the space available in between the two rooms which is used for the ingress and egress to the said rooms.
41. By referring to the Commissioner’s report, particularly, with regard to the nature of user thereof, Mr. Dasgupta submitted that neither the Meter Room nor the space available in between the two rooms can be used as a drawing room. Mr. Dasgupta further submitted that the Court cannot thrust his own choice upon the plaintiffs/landlord’s requirement without taking a practical approach instructed by the realities of life without giving any regard to the genuine need of the landlord. In support of his said submission Mr. Dasgupta relied upon a decision of the Hon’ble Supreme Court in the case of Shiv Sarup Gupta v. Mahesh Chand Gupta reported in AIR 1999 SC 2507 wherein it was held that needless to say that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction.
42. Mr. Dasgupta contended that the learned Court below ought not to have held that the said Meter Room and/or the available space in between the two rooms can be regarded as a reasonably suitable accommodation which may entail denial of the claim of the landlord for a drawing room. Thus, Mr. Dasgupta submitted that the appellant also reasonably requires one room for his drawing room.
43. With regard to the requirement of another room for the 11 years old son of the appellant No. 1, Mr. Dasgupta by referring to a decision of this Court in the case of Smt. Golap Maitra v. Biswanath Sarkar reported in 1987(1) CLJ 50 submitted that a landlord can seek eviction of his tenant by anticipating his need for accommodation in foreseeable future. Thus, Mr. Dasgupta contended that the requirement of the son of the appellant No. 1 cannot be disregarded as the need for accommodation of the said son in foreseeable future, can very well be anticipated.
44. Mr. Dasgupta further submitted that even the present requirement of the said son of the appellant No. 1 who is reading in class V and is of tender age cannot be ignored. Mr. Dasgupta further submitted that an exclusive reading room is necessary for the said son. Therefore, Mr. Dasgupta submitted that the appellant No. 1 also reasonably requires another bedroom for the said son of the appellant No. 1 which can be used for a combined purpose, i.e., bedroom-cum-study room of the said son of the appellant No. 1.
45. Mr. Dasgupta by referring to another decision of this Court in the case of Himanshu Bikash Das v. Ramendra Mohan Dutta reported in 1991(1) CLJ 392 submitted that the requirement of one room to accommodate the married sister of the appellant No. 1 during the period of her occasional stay in the said premises cannot be ignored. Thus, Mr. Dasgupta submitted that the appellant No. 1 also requires one room to accommodate his guests including the married sister during the period of their occasional stay in the suit premises.
46. Mr. Dasgupta further submitted that drawing room where the outsiders and/or visitors are normally attended, cannot be used as a guest room for accommodating the guests and/or relations and/or the married sister during the period of their occasional stay in the house.
47. Therefore, according to Mr. Dasgupta, the appellant No. 1 reasonably requires at least one bedroom for himself and his wife, one bedroom for his son, another room for his drawing room and another room for accommodating the married sister and/or guests and/or other relations during the period of their occasional stay.
48. By referring to the Commissioner’s report, Mr. Dasgupta submitted that the covered Varandah measuring about 13′-1″ x 5′ cannot be used either as a guest room or as drawing room. Mr. Dasgupta further submitted that there is no dinning space available to the appellant No. 1 in the suit premises. In any event, according to Mr. Dasgupta, the suit premises is reasonably required by the appellant No. 1 to meet his basic requirement, as the said appellant has no other reasonably suitable accommodation elsewhere to satisfy his said requirement.
49. Thus, Mr. Dasgupta prayed for restoration of the decree of the trial Court after setting aside the decree of the learned Court below.
50. Mr. Roy, learned advocate, appearing for the respondent, submitted that this Court while considering the second appeal cannot consider the requirement of the substituted heirs of the original plaintiff/landlord in an altered set of facts which took place during the pendency of the second appeal, as according to him, the personal requirement for which the said suit was flied by the original landlord abates with the death of the original landlord/plaintiff.
51. Mr. Roy further submitted that the learned first appellate Court rightly set aside the decree for eviction passed by the learned trial Court, as the requirement of the plaintiff is neither genuine nor bona, fide nor acute. By relying upon a Division Bench decision of this Court in the case of Hiralal Roy v. Sm. Arati Chatterjee reported in 1989(2) CLJ 170, Mr. Roy submitted that in order to get a decree for eviction on the ground of reasonable requirement, under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, the requirement of the landlord must be a genuine and bona fide and not a fanciful or a ruse. Thus, relying upon the said decision, Mr. Roy submitted that the learned first appellate Court rightly set aside the decree for eviction, as the requirement of the plaintiff is neither genuine nor bona fide in the instant case.
52. Mr. Roy further relied upon another Division Bench decision of this Court in the case of S.S. Bhowmick v. Susama Bose reported in AIR 1988 Cal 426 wherein it was held that an additional room for occasional visits of the married daughter cannot be regarded as a reasonable requirement unless it is proved that daughter comes with her husband and stay occasionally in the suit premises. Thus, relying upon the said decision Mr. Roy submitted that this Court must ignore the requirement of one room for accommodating the married daughter during her occasional visits in her paternal house.
53. Mr. Roy further contented that the married daughter is not the only issue of the original landlord. Furthermore both the original landlord and his wife died. Accordingly, the present appellant No. 1 cannot require one exclusive room for accommodating his married sister during the period of her occasional stay in the suit premises. According to Mr. Roy, such requirement cannot be regarded as genuine requirement of the appellant.
54. Mr. Roy further submitted that the requirement of the appellant No. 1 for his minor son is absolutely fanciful. As such a lawful tenant cannot be evicted by taking note of such a fanciful requirement of the appellant. According to Mr. Roy, a child of 11 years old cannot require one exclusive room either for his bedroom or for his study.
55. Thus, Mr. Roy fully supported the decree of the learned Court below and invited this Court to maintain the same in this appeal.
56. Let me now consider the submissions of the respective counsel of the parties with reference to the pleadings and the evidence on record.
57. First of all, let me consider as to whether this Court can consider the requirement of the substituted heirs of the original plaintiff/landlord in an altered set of facts which took place during the pendency of the said appeal.
58. In this regard, I must mention that a suit for eviction on the ground of reasonable requirement of the landlord, is not a suit in the nature of a personal action which abates on the death of the original landlord/plaintiff. It is settled principle of law that in a suit for eviction on the ground of reasonable requirement, not only the requirement of the plaintiff is considered but also the requirement of the members of the plaintiffs family is also considered. Accordingly, if it is found that even after the death of the original plaintiff/landlord, the heirs of the original plaintiff/landlord still reasonably require the suit premises, their requirement can also be considered in the said suit and/or in the appeal arising therefrom. Of course, the change of requirement which is caused due to the death of the original landlord is no doubt a vital factor which is required to be considered by the Court to assess the total requirement of the substituted heirs of the original plaintiff, as on the date of the passing of the ultimate decree.
59. Thus, if I have to accept the submission of Mr. Roy to the effect that the suit for eviction on the ground of reasonable requirement being a suit in the nature of personal action which abates on the death of the original plaintiff then in every case of a death of the landlord the suit will abate and fresh suit is required to be instituted by the heirs of the original landlord for almost the same requirement for which the eviction was sought for against the said tenant. Such a situation cannot be conceived of as that will lead to prolong litigation endlessly for no just purpose.
60. Accordingly, I do not find any substance in such submission of Mr. Roy and I hold that the requirement of the substituted heirs of the original plaintiff/landlord in an altered set of facts can be looked into by this Court even in the second appeal.
61. With regard to the requirement of the present appellants, I have already indicated above that the requirement of one bedroom for the appellant No. 1 and his wife is not disputed. The only dispute which is involved in this appeal is with regard to the requirement of the appellant of one additional room for the son of the appellant No. 1, one drawing room and the other guest room.
62. So far as the requirement of the minor son of the appellant No. 1 is concerned, it appears to me that the said son who is a student of class-V certainly requires one exclusive room for his study. That apart, the son will grow up day by day and his requirement of one exclusive bedroom for him in foreseeable future, can be anticipated very well, as nobody can expect that an adult son will share the same bed with his parent. As such, an exclusive bedroom for the said son in foreseeable future can very much be anticipated.
63. Accordingly, I hold that the appellant No. 1 requires one room for the said son of the said appellant.
64. With regard to the requirement of the appellant of one room for drawing room, I find that in all families there must be one exclusive drawing room where distant relations, friends and other outsiders can be attended. Here in the instant case, I find that both the Courts below found that the plaintiff requires one drawing room. However, according to the learned first appellate Court, a lawful tenant cannot be evicted for such a requirement of the landlord because of acute residential problem in these days in a busy metropolis like Calcutta where most of the families do not have any drawing room from the strictest sense of the terms. Thus, the learned Court below though has not altogether ruled out the requirement of one drawing room of the plaintiff, but still then refused to pass a decree for such a requirement which according to the learned Court below can be satisfied by utilisation of the Meter Room or the available space in between the two rooms in case of necessity.
65. Let me now consider, how far these approach of the learned Court below can be sustained in view of the decision of the Hon’ble Supreme Court in the case of Shiv Sarup Gupta v. Mahesh Chand Gupta (supra) in paragraph 14 whereof it was held as follows:
“14. ……………………. The landlord may convince the Court that the alternative residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the Court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come.”
66. Now, let me consider as to whether the alternative accommodation which according to the learned Court below can be used as drawing room, can be regarded as reasonably suitable accommodation with reference to the aforesaid decision of the Hon’ble Supreme Court.
67. After considering the mode of user of the Meter Room and the available space in between the two rooms, I hold that the said two spaces cannot be utilised as a drawing room.
68. Accordingly, I hold that those spaces are not reasonably suitable spaces which can be utilised as drawing room by the appellant. On the contrary, one of the suit rooms on the ground floor of the suit premises can very well be conveniently used as drawing room of the said appellant No. 1.
69. With regard to the requirement of another guest room, I find that the plaintiffs/appellants reasonably require one guest room for accommodating his guests including the married sister in the said room during their occasional visit. The drawing room cannot be used for combined purpose, i.e., for the purpose of attending the outsiders, visitors and also for the purpose of accommodating the guests, near relations including the married sister therein. Thus, the requirement of one guest room, in my opinion, is also a basic requirement of the appellant wherein the near relations including the married sister and other relations can be accommodated during the period of their occasional stay. The requirement of one room for accommodating the married sister during her occasional stay in her paternal house cannot be ruled out in view of the Division Bench decision of this Hon’ble Court in the case of Himanshu Bikash Das v. Ramendra Mohan Dutta (supra). In this regard, I also find support from the other decision of this Hon’ble Court in the case of Alok Biswas v. Amita Bose reported in 2004 (3) ICC 336.
70. The decision which was cited by Mr. Roy to show that one exclusive room cannot be accommodated to provide accommodation to a married daughter during her occasional stay, particularly when the landlord had admittedly a male issue in his family, has no application in the facts of the instant case, as here in the instant case the landlord does not want one exclusive room for his married sister. On the contrary, it appears that here in the instant case, the landlord requires one room not only for accommodating his married sister in the said room but also for accommodating his other guests including the married sister. Such a requirement of the landlord cannot be ignored, as the tenant cannot prevent the landlord from allowing his guests including married sister to be accommodated in his house during their occasional stay.
71. In such view of the matter, I hold that the appellant No. 1 reasonably requires at least one bedroom for himself and his wife, one bedroom for his son, one drawing room and one guest room. It appears from the Commissioner’s report that there are only two rooms on the first floor of the said premises which are in the occupation of the appellant. Admittedly, the tenancy of the defendant/respondent also consists of two rooms in the ground floor.
72. Accordingly, I hold that the appellant reasonably requires the suit premises for his own use, occupation and also for the use and occupation of members of his family, as the appellant has no other reasonably suitable accommodation elsewhere.
73. Thus, the judgment and decree which was passed by the learned Court below cannot be sustained and accordingly stands set aside. The decree of the learned trial Judge is restored.
Hence,
ORDERED
that the appeal be and the same is allowed on contest as against the respondent without, however, any order as to costs. The judgment and decree of the learned Court below is hereby set aside and the decree of the learned trial Court is, thus, restored. The respondent is hereby directed to vacate the suit premises and to deliver khas possession of the suit property to the appellants within a period of two months from date.
Let the lower Court records be sent down to the learned trial Court forthwith by Special Messenger at the costs of the appellants. Such costs should be put in by the appellants within a week from date.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities.