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Raja Surya Pal Singh Vs. Chiranji and anr. - Court Judgment

LegalCrystal Citation
Subject Property;Civil
CourtAllahabad
Decided On
Reported inAIR1944All170
AppellantRaja Surya Pal Singh
RespondentChiranji and anr.
Excerpt:
- - the learned assistant collector rejected the application for execution, holding that it was only chiranji lal's own share of the rent which was properly payable by him and an appeal to the district judge failed. in a third sense they are payable to all the cosharers because they are entitled ultimately to receive and enjoy them. i do not think it is safe to assume that the legislature had the other acts in mind when it passed the stayed arrears of rent (remission) act. it seems that the legislature was willing to suffer anomalies in exceptional cases in order to afford a general measure of relief and i am of opinion that the possibility of anomalies should not affect our decision. 165 of 1942 i am of opinion that the decision was incorrect in law but there was no failure to.....iqbal ahmad, c.j.1. i have had the advantage of reading the judgments of my brother judges constituting the full bench. i agree with the conclusion arrived at by my brother hamilton j.allsop, j.2. we have before us two second appeals and application in revision. one second appeal, no. 224 of 1942, arises out of a suit for arrears of rent in the court of an assistant collector in the etah district. the trial court gave the plaintiff, raja surya pal singh, a decree for rs. 137-12.0 with proportionate costs and interest on account of the rent for the years 1846 and 1847f, but refused to give any relief on account of the other years in suit, namely, rabi 1348 and kharif 1344f., on the ground that the defendant, krishan pal singh, was protected by the provisions of the stayed arrears of rent.....
Judgment:

Iqbal Ahmad, C.J.

1. I have had the advantage of reading the judgments of my brother Judges constituting the Full Bench. I agree with the conclusion arrived at by my brother Hamilton J.

Allsop, J.

2. We have before us two second appeals and application in revision. One Second Appeal, No. 224 of 1942, arises out of a suit for arrears of rent in the Court of an Assistant Collector in the Etah district. The trial Court gave the plaintiff, Raja Surya Pal Singh, a decree for Rs. 137-12.0 with proportionate costs and interest on account of the rent for the years 1846 and 1847F, but refused to give any relief on account of the other years in suit, namely, Rabi 1348 and Kharif 1344F., on the ground that the defendant, Krishan Pal Singh, was protected by the provisions of the Stayed Arrears of Rent (Remission) Act (U.P. Act 18 of 1939) because the rent payable by him was not more than Rs. 500 a year.

3. Krishan Pal Singh had three holdings of his own and was one of several co-tenants in five others. The total rent of the eight holdings was over RS. 1500, but the total amount payable by Krishan Pal Singh on account of his separate holdings and his own share in the joint holdings was less than Rs. 500. The learned District Judge in appeal gave a decree on account of the rent for the years 1343 and 1344F. He held that the tenants of the joint holdings were jointly and severally liable for the whole rent and that Krishan Pal Singh was not protected because the whole rent of over Rs. 1500 was payable by him.

4. The other Second Appeal, No. 1318 of 1942, arises out of a suit for arrears of rent against six joint tenants who were jointly and severally liable to pay a rent of over Rs. 500 although the share of the rent payable by each of them was less than Rs. 500. The trial Court held that they were not protected by the provisions of the Stayed Arrears of Rent (Remission) Act and passed a decree against them. The District Judge in appeal held that each of them was so protected and dismissed the suit. The application for revision arises out of proceedings in execution of a decree for arrears of rent against Chiranji Lal and Hub Lal. They were joint tenants of a holding on account of which they paid a rent of Rs. 205 a year. Chiranji Lal was with seven others a tenant in another holding of which the rent was Rs. 410. The decree-holder sought to execute the decree against him on the ground that the rent payable by him was the sum of the full rents of the two holdings by reason of the joint and several liability of the tenants. The learned Assistant Collector rejected the application for execution, holding that it was only Chiranji Lal's own share of the rent which was properly payable by him and an appeal to the District Judge failed.

5. Section 3, Stayed Arrears of Rent (Remission) Act, provides that certain suits and applications for the recovery of arrears of rent shall be dismissed and Section 5 provides that the provisions of Section 8 shall not apply to a suit or application instituted or made against any person the rent payable by whom in the year 1344 F. was more than five hundred rupees or to any person who in the year 1937 was assessed to income-tax or to any person whose land was assessed in the year 1344 F. to a local rate of more than twenty five rupees. The common questions which arise in the matters before us are whether the rent payable by a tenant within the meaning of Section 5 of the Act is the rent of the holding which is the subject of the suit or application or the total rent of all the holdings in which he has an interest and whether the rent payable by one of a number of co-tenants is the whole rent of the joint holding or only his share of that rent.

6. One argument addressed to us was based on the definition of the term 'person' in the United Provinces General Clauses Act and the use of that term in Section 5, U.P. Stayed Arrears of Rent (Remission) Act. As 'person' is defined to include any association or body of individuals whether incorporated or not the suggestion seems to be that the whole body of co-tenants was not protected by Section 5 if their joint rent was more than Rs. 500 a year. It is unnecessary to consider whether for some purposes the body of co-tenants might be treated as a single entity and described as a person. For the purposes of a suit for arrears of rent it seems clear enough that they are not in the ordinary way so treated. It is possible that there may be exceptions as for instance in the case of a joint Hindu family (although I express no opinion upon the point) but generally tenants are sued not only on their joint liability but as separate persons on their several liability. If it were otherwise the decree would be against the body of tenants as one entity described as a 'person' and consistency would demand that it should be executed against that person, that is against the property owned by the body of co-tenants as such, and not against the individual tenants or persons who constituted the body, that is not by attachment and sale of the property of those individual tenants or persons. I do not express any opinion upon the question whether it would be possible in law to sue the body of tenants as a single entity or person or to say that they owned any property as such entity or person. It is sufficient to point out that tenants are not in fact ordinarily sued in that way and that they were certainly not so sued in the cases with which we are dealing. The tenants were sued as separate persons and the question whether each or any of them is protected by Section 5 must depend upon the interpretation that is to be put upon the term 'payable' in that section.

7. I have had occasion more than once to notice that this term is ambiguous because payment may mean the physical delivery of money or the discharge of an initial or of an ultimate liability. We may consider a lambardari mahal in which the lambardar employs an agent who is authorized to collect rents and give valid discharges and is required to pay the Government revenue out of his collections. In one sense the rents are payable to the agent because he is entitled to collect them. In another sense they are payable to the lambardar because he is entitled to sue for them. In a third sense they are payable to all the cosharers because they are entitled ultimately to receive and enjoy them. Under the provisions of Section ii, Agra Tenancy Act, 1926, any person taking possession of land without the consent of the landholder could be ejected on the suit of the landholder. A landholder was defined in that Act as a person to whom rent was payable. The Board of Revenue in Sri Ram Chanderji v. Raghunath ('229) 13 R.D. 426 held that the lambardar was the landholder and as such could eject any of his cosharers who happened to be in possession of any land in the joint mahal without the lambardar's permission. A Full Bench of this Court in Sultan Ahmad Khan v. Jalaluddin : AIR1940All370 held that it was not the lambardar alone, but the whole body of cosharers, which was the landholder and that the lambardar could not eject a cosharer, who had as much right to possession over every inch of the mahal as he himself. The Board of Revenue regarded the rent as payable to the lambardar. This Court regarded it as payable to the cosharers.

8. In the same way the Government Revenue might be regarded as payable by the cosharers or by the lambardar, from whom the Collector might immediately recover it, or by the lambardar's agent, who had a duty to the lambardar to pay it. As the term payable is ambiguous it is necessary to examine the context in which it is used in order to assign a meaning to it in any particular case. In Section 5, Stayed Arrears of Rent (Remission) Act, there are references to the payment of income-tax, local rates and rent. Any person who pays income-tax must have a certain minimum income.

9. Local rates are proportionate to an assumed profit from the land assessed. The rate of rent depends generally upon the benefit which the tenant expects to reap from his holding. It seems clear that the payments of income-tax or of certain amounts of local rates or rent were used by the Legislature as measures of a tenant's financial status. In my judgment it follows that the Legislature used the term 'payable' in the sense of the ultimate liability j to pay because it is that liability alone which could be any guide to a man's financial position, that is, any indication of the profit which would accrue to him from his tenancy. A co-sharer in a large holding would get a profit only proportionate to his share of the rent and a cosharer in a mahal would have an income only in proportion to his share in the local rate. If one had to consider the status of a zamindar for any purpose as, for instance his credibility as a witness, it would be natural to rely upon the share of revenue payable by him and not upon the whole revenue of any mahal or mahals in which he happened to be a cosharer. Once it appears that the payment of rent is used in Section 5 of the Act as a measure of status, it seems to me that the ordinary and natural meaning to be assigned to the word payment is ultimate payment, that is, the payment which is to be made by a tenant when all the rights and liabilities of the landholders and the tenants to each other have been adjusted or, in other words, the share of rent payable by a tenant for all his holdings; and it is surely a sound rule of interpretation to give a word in a statute its natural and ordinary meaning.

10. Our attention was drawn to the fact that in three other Acts designed to grant relief to agricultural tenants when the relief depended on the payment of rent not exceeding certain sums the Legislature specifically provided that the rent referred to was the share of each tenant in a joint tenancy and it was argued that the absence of such a provision from the Stayed Arrears of Rent (Remission) Act indicated that the term rent in that Act meant the whole rent of a holding. I do not think it is safe to assume that the Legislature had the other Acts in mind when it passed the Stayed Arrears of Rent (Remission) Act. It might be held that the rent intended was the whole rent of a holding if it was possible to think that the Legislature was intending to interdict suits and proceedings for the recovery of rent due on small holdings, but that is not possible because if such had been the intention, there would have been no mention of income-tax or local rates.

11. Some attempt was made to point out the anomalies which might arise from various interpretations of Section 5, but I do not think that that is a helpful method of approach because anomalies would arise from any interpretation. In particular it was suggested that a suit or proceeding might continue against one of a number of joint tenants and not against others for the recovery of the whole rent and that there might be no possibility of enforcing contributions, if it was held that the rent intended in Section 5 was the rent only of a co-tenant's share and, on the other hand, if contribution could be enforced then the smaller tenants would not in the long run be protected. Such anomalies cannot, however, be escaped. There might, for instance, be a joint rent of less than Rs. 500 and yet one of the co-tenants might not be protected because he paid income-tax. It would be equally anomalous if a single tenant paying a rent of Rs. 499 was protected and ten co-tenants paying a joint rent of Rs. 600 were liable. It seems that the Legislature was willing to suffer anomalies in exceptional cases in order to afford a general measure of relief and I am of opinion that the possibility of anomalies should not affect our decision.

12. My conclusion is that the rent payable by a tenant within the meaning of Section 5 is his share of all the rents of all the holdings in which he is a tenant. In the result I would allow Appeal No. 224 of 1942 with costs, set aside the decree of the lower appellate Court and restore the decree of the trial Court and I would dismiss Appeal No. 1318 of 1942 and the application in civil Revn. No. 162 of 1942 with costs.

13. I may add that there is another reason of dismissing the application in revision. The Courts below did not refuse to exercise jurisdiction. They came to a decision right or wrong that the application for execution must be dismissed and they dismissed it. This Court generally should not interfere in revision merely because it thinks that the decision of the lower Court is wrong.

Hamilton, J.

14. There are before us second Appeal No. 224 of 1942, S.A. No. 1318 of 1942 and civil Revn. No. 165 of the same year. The civil revision came first before the single Judge who referred it to a Bench. The second appeal came before a Bench of two Judges and was referred to a larger Bench and as the civil revision had been connected with it it was kept connected and also referred. As regards the civil revision it has been urged that it is not maintainable but the point of law on the ground of which it was referred to a Bench is the same as that in the appeal, namely the interpretation of Section 5, Arrears of Rent (Remission) Act (Act 18 of 1939) which is as follows:

The provisions of Section 3 of this Act shall not apply to a suit or application instituted or made against any person the rent payable by whom in the year 1344 Fasli was more than five hundred rupees or to any person who in the year 1937 was assessed to income-tax under the Income-tax Act, 1922, or under the Income-tax law of any Indian State or to any person whose land was assessed in the year 1344 Fasli to a local rate of more than twenty-five rupees.

15. The defendant-appellant of the second appeal was sole tenant in 3 holdings, a tenant with nine others in two, with eight others in one, with six others in one and with five others in one the total of the rents being Rs. 1503-14-0. If the rent payable by him under Section 6 was the total of the rents it exceeds Rs. 500 but if the rent payable by him be taken to mean one-tenth of the rent of a holding where there were ten co-tenants etc., the total amount payable by him was Rs. 482-8-2. The trial Court gave it the latter meaning and the appellate Court gave it the former meaning.

16. In the suit which gave rise to the civil revision, the trial Court gave it the latter meaning and the appeal was dismissed. There was one holding with a rent of Rs. 205 in which there were two tenants, Chiranji and Khub Lal, and another holding with a rent of Rs. 410 in which Chiranji had seven co-tenants. Under the Tenancy law for one agricultural holding there is one rent but there may be more than one field and more than one tenant. Let us take a holding consisting of ten fields, the tenants being A and B and the landholder X and the rent Rs. 200 yearly. Under the Tenancy Act, the rent payable by A to X and recoverable by X from A is Rs. 200 and the same figure represents the rent payable by B to X and recoverable by x from B. If A pays Rs. 100 the balance of Rs. 100 is still payable by him just as much as by B. If A pays Rs. 200 he may bring a suit against B under Section 149, U.P. Tenancy Act of 1939 which is as follows:

A co-tenant who has paid rent on account o another co-tenant or from whom such rent has been recovered may sue such co-tenant for the amount so paid.

17. He can do so because he has paid rent which was payable by B no less than by himself. Supposing there was any remission of rent under Section 123 and A chose to pay the whole rent, could he by suing B under Section 149, recover any portion of the amount remitted? I think not because having been remitted it was no longer payable by B.

18. In 1937 there was passed the United Provinces Stay of Proceedings (Revenue Courts) Act (Act 4 of 1937) by which suits and applications in respect of rent up to Rabi 1344 were stayed. Such rent in my opinion was not payable while the Act was in force so that if a co-tenant chose to pay he could not during that period recover any part of the amount from another co-tenant. Then came Act 18 of 1939 to remit the arrears of rent the proceedings for the recovery of which had been stayed by Act 4 of 1937, with the result, in my opinion, that that rent was not payable by certain tenants.

19. If Section 5 did not apply to either A or B of the example which I have given, then that rent was not payable by either A or B and if A nevertheless chose to pay it he did not pay rent on account of his co-tenant and so was not entitled to get anything from B under Section 149. If Section 5 applied to A and not to B then the position was that the rent of the holding had been suspended for a period which had expired in so far he was concerned so that it was now payable by him, but it had been remitted in so far as B was concerned and was not payable by him. The landholder could, therefore, recover from A the whole of the rent but A could not recover any part from B as no part of what he paid was on account of B whose rent had been remitted. If one argues that the rent payable by a co-tenant is the rent of a holding, which under the Tenancy Act is payable by him, minus the amount for which he can sue another co-tenant the answer is that the rent payable by a person : to whom Section 5 applies is the full rent of the holding because he will get nothing by a suit under Section 149 from a co-tenant whose rent has been remitted.

20. Apart from this, Section 2 of Act 18 of 1939 states that unless there is something repugnant in the subject or context all words used in the Act which are denned in the Agra Tenancy Act, 1926, shall have the meanings assigned to them therein. In the Act of 1926, there was no section corresponding to Section 149, Tenancy Act of 1939. Finally I would refer to three Acts. In the U.P. Temporary Postponement of Execution of Decrees Act do of 1937) Section 2 an agriculturist is denned. One of the classes is a person who pays rent of agricultural land not exceeding Rs. 1000 (Section 2(2)(e)) and there is then Expln. 2 to the effect that in the case of joint tenants each tenant shall be considered to be an agriculturist whose share in the rent does not exceed the aforesaid limit. In the U.P. Debt Redemption Act (18 of 1940) Section 8(d) provides that a joint tenant shall be deemed to be the tenant of so much of the joint tenancy, not being the tenancy of a joint Hindu family, as appertains to his share. In the Agriculturists' Relief Act (27 of 1934) in Section 2 there is Expln. 2 as follows:

In the ease of members of a joint Hindu family or joint owners or joint tenants, each member or owner or tenant shall be considered to be an agriculturist for the purposes of Chaps. 2 (except Sections 3, 4, 5 and 8), 3 and 6, whose share or interest in revenue local rate or rent or the rent free land, as the ease may be, does not respectively exceed the aforesaid limits.

21. Considering these provisions in one Act of 1984, another of 1987 and one of 1940 the omission of a similar provision in Act 18 of 1989 does not appear to be accidental. In. view of all that I have stated above I am of opinion that the rent payable by a tenant against whom a suit has been instituted or an application made, in Section 5 of Act 18 of 1989, is the rent of the holding whether the tenant be a sole tenant or one of a number of co-tenants and if that person is a tenant in more than one holding then the sum of the rents of the, holdings.

22. I would therefore dismiss, with costs Second Appeal No. 224 of 1942 and allow Section A. No. 1318 of 1942. As regards civil Revision No. 165 of 1942 I am of opinion that the decision was incorrect in law but there was no failure to exercise jurisdiction and no exercise of jurisdiction illegally or with material irregularity and therefore the application should be rejected with costs.

Dar, J.

23. These three cases of recovery of rent by a landlord against a tenant under the Agra Tenancy Act raise a common question of law and have been referred to this Bench to settle a conflict which exists on the interpretation of Section 5, U.P. Stayed Arrears of Rent (Remission) Act, 18 of 1939. In two of these cases Raja of Awagarh is the landlord. In the third case the landlord is Ram Gopal, a zamindar of village Mahamai Salamatnagar in Aligarh district. The tenants in all the thrfe, cases are different, the aggregate rent payable by these tenants of their entire holdings exceeds Rs. 500, but the individual share of each tenant in all the holdings in aggregate is less than RS. 500. In one of the cases of Raja of Awagarh and in the case of Ram Gopal the claim of the landlord was dismissed by the Court below holding that under Section 5 of Act No. 18 of 1989 the personal share of the rent paid by tenant was to be taken into consideration. In the third case of Baja of Awagarh, the Court below has decreed the claim taking the view that under Section 5 the joint rent of the tenant was to be taken into consideration.

24. The relevant facts of these cases and the two views which exist on the interpretation of the section are set out in the two judgments which my brothers, Allsop and Hamilton have prepared in this case, and as I concur with the reasoning and the judgment of my brother Allsop, it is unnecessary for me to set out the facts of these cases in detail or to reproduce the reasons given by my brother Allsop in support of his interpretation of the section. But I shall shortly state why I consider that the interpretation put by him on the section should be accepted.

25. By the U.P. Stay of Proceedings (Revenue Courts) Act, 4 of 1937, pending further legislation all pending and future proceedings arising out of suits and execution for recovery of rent by landlords against tenants under the Agra Tenancy Act were stayed. Section 3, U.P. Stayed Arrears of Rent (Remission) Act, 18 of 1939, enjoins that the proceedings which have been stayed under the aforesaid Act of 1937 shall be dismissed and future suits or proceedings will not be instituted with regard to any matter which would have been stayed under the provisions of the aforesaid Act of 1937. But there is an exception to this dismissal which is provided by Section 5, U.P. Stayed Arrears of Rent (Remission) Act, and which is expressed in these terms:

The provisions of Section 3 of this Act shall not apply to a suit or application instituted or made against any person the rent payable by whom in the year 1344 Fasli was more than five hundred rupees or to any person who in the year 1937 was assessed to income-tax under the Income-tax Act, 1922, or under the Income-tax law of any Indian State or to any person whose land was assessed in the year 1344 Fasli, to a local rate of more than twenty-five rupees.

26. Section 3 of Act 18 of 1939 as its marginal note shows grants remission of stayed arrears generally; Section 5 as its marginal note shows provides that the Act was not to apply to certain classes of tenants and these are persons who paid rent of more than Rs. 500 in the year 1344 Fasli or who were assessed to income-tax in the year 1937 or whose land was assessed in the year 1344 Fasli to local rate of more than Rs. 25. Section 5, therefore, provides that persons of certain financial status, those who paid rent above Rs. 500 or who paid income-tax or whose land paid a local rate of more than Rs. 25, shall, not have the benefit of the remission which is contained in Section 3 of the Act. There are three classes of e tenants mentioned in Section 5 who are excepted from the remission provided for by Section 3 of the Act. So far as two of these classes are concerned, namely, persons who paid income-tax and persons whose land was assessed to a local rate of more than Rupees 25 it is not disputed that the statute contemplated the income-tax and the local rate paid personally by the tenant or personally for his share by the individual against whom proceedings for recovery of rent are taken. But it is contended that in the case of the third class of the tenant, namely, the persons who paid rent of more than Rs. 500, the personal share of j the tenant is not to be taken into consideration, but the joint rent which was legally recoverable from the tenant is to be taken into account.

27. The expression 'rent payable by a tenant' in a case where tenancy is joint and is shared by a number of persons is an ambiguous expression; it may mean the rent notionally payable or legally recoverable or it may mean the rent actually payable by a tenant for his share. Whether it is used in one sense or the other falls to be determined with reference to the context in which the expression is used. In any matter arising in enforcement of a contract between the landlord and the tenant for recovery of rent, the expression 'rent payable by a tenant' should mean rent legally recoverable. But, in a matter relating to franchise or in a mater relating to privilege or exemption depending upon financial status of a tenant, the rent payable prima facie should mean the rent actually paid by him and not the rent notionally paid by him or the rent to which he is jointly liable with others but which in practice he never pays. In Section 5 of Act 18 of 1939 the expression 'rent payable' is used to determine the financial status of the tenant and, therefore, it should mean the rent actually payable by the tenant for his share and not the one which is legally recoverable by the landlord. I would, therefore, dismiss the claim of the landlord in all the three cases with the result that the second Appeal No. 224 of 1942 will be allowed with costs and civil Revision No. 165 of 1942 and Second Appeal No. 1318 of 1942 will be dismissed with costs.

Mathur, J.

28. These two second Appeals Nos. 224 and 1318 of 1942 and civil Revision No. 165 of 1942 have been referred to this Full Bench for deciding upon the correct interpretation of Section 5, United Provinces Stayed Arrears of Rent (Remission) Act (Local 18 of 1989). The section reads as follows:

The provisions of Section 3 of this Act shall not apply to a suit or application instituted or made against any person the rent payable by whom in the year 1344 Fasli was more than five hundred rupees or to any person who in the year 1937 was assessed to income-tax under the Income-tax Act, 1922, or under the Income-tax law of any Indian State or to any person whose land was assessed in the year 1344 Fasli, to a local rate of more than twenty-five rupees.

While it is urged on one side that the rent payable by a tenant means the entire rent of the holding or holdings in which he has got a share, it is argued on the other, that it means only the share of a tenant out of the rent of the joint holding or holdings. I have had the advantage of reading the judgment of my learned brother, Allsop J., and I am in entire agreement with him that the rent payable by a tenant within the meaning of Section 5 is his share of the rent in all the holdings in which he is a tenant. The obvious object of enacting the United Provinces Stayed Arrears of Rent (Remission) Act was to give relief to a certain class of tenants having regard to their financial status. It is clear from a reading of Section 5 that the financial status of individual has to be taken into account. If any tenant is assessed to income-tax, he will not be entitled to have the benefit of Section 3 although he may be a co-tenant with others in a holding with a rent of much less than Rs. 500. Similarly, if the land revenue of an individual is assessed to a local rate of more than Rupees 25, which means that he is paying a Government revenue of more than Rs. 250, that alone shall determine his financial status.

29. It was argued that the Act being of the nature of a confiscatory legislation it ought to be very strictly construed and that no tenant should get advantage unless he comes strictly within the terms of the Act. I am, however, of opinion that it would be wrong to apply the nomenclature of a confiscatory legislation to this Act as it is not a matter between the crown and the subjects. In Raghuraj Singh v. Hari Kishan Das ('44) 31 A.I.R. P.C. 35 their Lordships of the Privy Council have called the Agriculturists' Relief Act, which is an Act of the same nature as the present one, a remedial statute and have made the following observations:

The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the class intended to be relieved.

In this view of the matter, all tenants whose status is the same, namely, that they pay a rent of less than Rs. 500 whether separately or jointly should be relieved. I would, therefore, agree with Allsop J. and allow appeal No. 224 of 1942 with costs but dismiss the Appeal No. 1318 of 1942 as well as the Civil Revision No. 165 of 1942 with costs.

30. Second Appeal No. 224 of 1942 is allowed, the decree of the lower appellate Court is set aside and the decree of the trial Court is restored with costs throughout. Second Appeal No. 1318 of 1942 and Civil Revision No. 165 of 1942 are dismissed with costs.


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