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Sibendra Nath Kanjilal Vs. Ganes Chandra Basu - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberS.A. No. 342 of 1976
Judge
Reported inAIR1985Cal269,89CWN608
ActsWest Bengal Premises Tenancy Act, 1956 - Section 13(1), 13(6) and 19(2); ;Transfer of Property Act, 1882 - Section 106
AppellantSibendra Nath Kanjilal
RespondentGanes Chandra Basu
Appellant AdvocateSudhis Dasgupta and ;Tarun Chatterjee, Advs.
Respondent AdvocateBankim Datta and ;Asoke Kr. Sengupta, Advs.
DispositionAppeal allowed
Cases ReferredNikhil Chandra Sen v. Ajit Chandra Mallik
Excerpt:
- .....district judge.2. plaintiff filed the aforesaid title suit for eviction of the defendant from the suit premises and for recovery of mesne profits. it was the case of the plaintiff in brief that the defendant was the tenant under the plaintiff in respect of the suit premises at the monthly rental of rs. 60/- according to english calendar and that the defendant defaulted in payment of rent since may, 1972. the plaintiff requiredthe suit premises for the purpose of building and rebuilding as the same was old and in dilapidated condition, and the plaintiff had sufficent means to undertake such work. the plaintiff accordingly sent a notice to quit dated 15-9-71 to the defendant terminating the tenancy with the expiry of october, 1971 and asking him to vacate the suit premises. the said.....
Judgment:

Sukumar Chakravarty, J.

1. This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, 10th Court, Alipore in Title Appeal No. 1102 of 1974 setting aside the judgment and decree passed by the learned Munsif, 4th Court, Alipore in Title Suit No. 403 of 1972 and in effect dismissing the suit although the learned Additional District Judge has not made any express order to that effect. Such an omission ought not to have occurred in the judgment of the learned Additional District Judge.

2. Plaintiff filed the aforesaid title suit for eviction of the defendant from the suit premises and for recovery of mesne profits. It was the case of the plaintiff in brief that the defendant was the tenant under the plaintiff in respect of the suit premises at the monthly rental of Rs. 60/- according to English Calendar and that the defendant defaulted in payment of rent since May, 1972. The plaintiff requiredthe suit premises for the purpose of building and rebuilding as the same was old and in dilapidated condition, and the plaintiff had sufficent means to undertake such work. The plaintiff accordingly sent a notice to quit dated 15-9-71 to the defendant terminating the tenancy with the expiry of October, 1971 and asking him to vacate the suit premises. The said notice was duly served upon the defendant who wrote a letter dated 6-1-72 to the plaintiff acknowledging the receipt of the notice dated 15-9-71 and intimating that he would vacate the suit premises and deliver possession of the same to the plaintiff within September, 1972. The defendant did not vacate the suit premises. Accordingly the plaintiff filed the suit for the relief as claimed basing on the plaintiffs notice dated 15-9-71 and the defendant's notice in the form of the letter dated 6-1-72.

3. The defendant contested the suit after filing the written statement. The defendant challenged the validity of plaintiffs notice dated 15-9-71 and contended that the plaintiff under undue influence, coercion and pressure got the signature of the defendant on the letter dated 6-1-72. The defendant denied the Plaintiffs requirement of the suit premises for the purpose of building and rebuilding and denied also the alleged default in payment of rent.

4. Before the learned Munsif, the learned Advocates on both sides made their argument only on the point of notice, dated 6-1-72 sent by the defendant intimating the plaintiff that he would vacate the suit premises, although some other issues were also framed in the suit. The learned Munsif treated the defendant's letter dated 6-1-72 as the defendant's notice to quit to the plaintiff under Section 13(1)(j) of the West Bengal Premises Tenancy Act and found the same as valid notice and passed the judgment and decree in favour of the plaintiff only on that ground.

5. On appeal, the judgment and decree of the learned Munsif were challenged at the time of argument of the point of notice to quit alone and the learned Advocates on both sides argued on the point of notice alone. Although the suit was contested at the time of argument on the point of defendant's alleged notice dated 6-1-72 before the learned Munsif and although before the learned Additional District Judge also, the appeal was contested at the time of argument on the point of notice alone, the learned Additional District Judge appears to have wrongly observed at the time of framing the point at issue in his judgment that the learned Advocates appearing on behalf of both sides submitted before the court that they would argue only on the point of the validity of the notice dated 15-9-71 and effect thereof without mentioning the validity of the defendant's alleged notice dated 6-1-72 and effect thereof. It however appears from the perusal of the whole judgment of the learned Additional District Judge that he considered the validity and effect of the defendant's notice dated 6-1-72 and arrived at the finding placing reliance on the decision in : AIR1973Cal473 that the defendant who became the statutory tenant on service of plaintiffs notice to quit dated 15-9-71 terminating the contractual tenancy, could no longer issue notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act (hereinafter referred to as the Act) and that the plaintiff could not get eviction of the defendant on such notice. The learned Additional District Judge accordingly set aside the judgment and decree passed by the learned Munsif and in effect dismissed the suit although no express order to that effect was passed.

6. Being aggrieved, plaintiff has preferred this second appeal on the ground that the learned Additional District Judge has committed mistake in law in reversing the judgment and decree passed by the learned Munsif.

7. Mr. Sudhis Dasgupta, appearing on behalf of the plaintiff-appellant, has submitted that in view of the decision of the Supreme Court in the case of Damadilal v. Parashram reported in : AIR1976SC2229 and in the case of V. Dhanapal Chettiar v. Yesodai Ammal reported in : [1980]1SCR334 , the decision of this High Court in the case of Dilip Kumar Singha v. Abodh Gopal Ghosh reported in : AIR1973Cal473 on the basis of which, the learned Additional District Judge dismissed the suit, is no more a good law and has been impliedly reversed by the Supreme Court decision as mentioned above. Mr. Das Gupta has further submitted that the plaintiff-landlord after serving the notice to quit dated 15-9-71 upon the defendant accepted the rent from the defendant and accordingly waived the notice dated 15-9-71 terminating the tenancy of the defendant and that accordinglythe defendant was no longer a statutory tenant when he issued the notice to quit dated 6-1-72 and that accordingly the defendant cannot get the benefit of the decision in : AIR1973Cal473 also, if found to be not impliedly reversed by the Supreme Court decision.

8. Mr. B. C. Datta, learned Counsel appearing 6n behalf of the defendant-respondent has submitted that neither the Supreme Court decision in : AIR1976SC2229 nor the Supreme Court decision in : [1980]1SCR334 has considered the scope of the notice under Section 13(1)(j) of the West Bengal Premises Tenancy Act and the decision in : AIR1973Cal473 and did not reverse the decision laying down the principles of law therein and that accordingly the decision in : AIR1973Cal473 remains still in force. Mr. Datta has further submitted that if any occasion arises for the court not to agree to the Single Bench decision in : AIR1973Cal473 then, this court should refer the point to the Division Bench for decision. As regards the alleged notice dated 6-1-72, Mr. Datta has submitted that the same was not at all a valid notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act and that the said letter under the signature of the defendant was obtained by the plaintiff under undue influence, duress and coercion.

9. Before I go into the discussion with regard to the decision in : AIR1973Cal473 vis a vis the decisions in : AIR1976SC2229 and : [1980]1SCR334 , I take up for my consideration the submission made by learned counsel on both sides regarding the point whether the letter dated 6-1-72 Ex. 2 addressed to the plaintiff by the defendant was rightly and legally treated by the Courts below as the valid notice to quit under Section 13(1)(j) of the West Bengal Premises Tenancy Act.

10. It appears that the plaintiff filed the ejectment suit against the defendant alleging that the cause of action of the suit arose on 1-11-71 when the defendant did not vacate the suit premises after the termination of the tenancy by plaintiffs notice to quit dated 15-9-71 terminating the tenancy with expiry of October, 1971 and/or on 1-10-72 when the defendant did not vacate the suit premises on defendant's notice to quit dated 6-1-72 in the form of a letter intimating that he would vacate the suit premises with the expiry of September, 1972. Plaintiffs notice to quit dated 15-9-71 is Ex. 1 and defendant's alleged notice to quit dated 6-1-72 is Ex. 2. It appears from the judgments of both the courts below that the learned counsel on both sides before the courts below made their argument only on the point of notice accepting Ex. 1 and Ex. 2 as the notice to quit issued by the plaintiff and the defendant respectively. Both the Courts below also in their judgment arrived at their respective finding on accepting Ex. 1 and Ex. 2 as the notice to quit issued by the plaintiff and the defendant respectively. So in the premises as mentioned above, the concurrent finding of fact of both the courts below that the Ex. 1 and Ex. 2 are the notices to quit issued by the plaintiff and the defendant respectively cannot be interfered with in the second appeal. This however does not debar the parties to challenge the validity of the notice to quit on the point of law in the Second Appellate Court.

11. The validity of the notice to quit Ex. 2 only has been challenged on the point of law by Mr. Datta, the learned counsel for the defendant-respondent. It has been submitted by Mr. Datta that in the notice to quit (Ex. 2) dated 6-1-72, it has been stated by the defendant that he would vacate the house within September, 1972 and accordingly the notice is bad in law as the notice Ex. 2 did not indicate that the defendant would vacate the house with the expiry of September, 1972. The tenant may give notice to quit to the landlord under Section 13(1)(j) of the Act and the landlord can evict the tenant if the tenant fails to deliver vacant possession of the premises to the landlord in accordance with the notice. Section 13(1)(j) of the Act does not say in what manner the notice to quit is to be given by the tenant. Section 13(6) of the Act provides that notwithstanding anything in any other law for the time being in force, no suit for recovery of possession of any premises on any of the grounds in sub-section (1) except the grounds mentioned in Clauses (j) and (k) of that sub-section shall be filed by the landlord unless he has given to the tenant one month's notice expiring with a month of the tenancy. It is clear from Section 13(6) itself that the notice to quit to be given by the tenant under Section 13(1)(j) of the Act is not governed by Section 13(6) of the Act. The notice to quit under Section 13(1)(j) of the Act will therefore be governed by Section 106 of the Transfer of Property Act read with Section 19(2) of the Act with regard to the manner of the notice in the absence of any provision in this respect in the West Bengal Premises Tenancy Act. Section 106 of the Transfer of Property Act, read with Section 19(2) of the Act says that monthly lease shall be terminable on the part of the lessor or lessee by a month's notice expiring with the end of a month of the tenancy. So the notice to quit Jo be given by the tenant under Section 13(1)(j) of the West Bengal Premises Tenancy Act must be a month's notice expiring with the end of a month of the tenancy, as Section 19(2) of the West Bengal Premises Tenancy Act requires the tenant to give 1 month's notice expiring with one month of the tenancy.

12. In the instant case the notice to quit dated 6-1-72 (Ext. 2) says that the defendant will vacate the house within September, 1972. The question is whether the said notice which was undoubtedly more than one month's notice can be accepted as a notice expiring with the end of September, 1972. According to Mr. Datta, it cannot be and in support of his submission, he relies on the decision in the case of Mathura Mohan Goswami v. Jyotirmay Chaudhury reported in (1965) 69 Cal WN 568 whereas according to Mr. Das Gupta, the notice (Ex. 2) can be accepted as the notice expiring with the end of September, 1972 in view of the decision in the case of Mozam Shaikh v. Annada Prasad Bhadra reported in AIR 1942 Cal 341. Mr. Das Gupta has further submitted that even if the notice Ex. 2 is found to be defective, still the said notice given by the tenant-defendant and accepted by the plaintiff-landlord will determine the tenancy and the tenant defendant serving the notice shall be estopped from denying its validity. In support of his such submission, Mr. Das Gupta has relied on the decision in the case of Calcutta Credit Corporation Ltd. v. Happy Homes (P.) Ltd. reported in : [1968]2SCR20 .

13. In the decision in (1965) 69 Cal WN 568 it has been held that the notice under Section 13(1)(j) of the Act must be strictly construed against the landlord and in favour of the tenant as such notice deprives the tenant from the statutory protection. There is no dispute with regard to the principle of law as enunciated therein. In the case reported in (1965) 69 Cal WN 568, the facts were different. In that case it was not for consideration whether the notice stating that the tenant will vacate the premises within September can be treated as the notice expiring with the end of September. The decision in AIR 1942 Cal 341 is rather on the point as mentioned above. In that case a notice to quit was served on the defendant on 30th Aswin 1343 B.S. asking him to quit within 30th Chaitra, 1343 B.S. The defence was that the notice served was insufficient and defective inasmuch as it was not a notice expiring with the end of the month of the tenancy. It was held by the Division Bench in that case as follows : 'The notice asked the defendant to quit by 30th Chaitra, 1343 B.S. The exact vernacular words used in the notice were 'Trisha Chaitra Madhye'. It was contended on behalf of the appellant that these words mean that he was asked to quit before the expiry of 30th Chaitra, 1343 B.S. and hence defective. We are unable to accept this contention of the appellant. The words Trisha Chaitra Madhye' would mean 'by 30th Chitra' and the tenant would have the whole of that day to give up the tenancy.' So placing reliance on that decision in AIR 1942 Cal 341 the words 'within September' will mean 'by September' and the tenant would have the whole of September to give up the tenancy, and accordingly the notice cannot be treated as defective.

14. Even if it be assumed for the sake of argument, that the notice Ex. 2 was defective, being not the notice expiring with the end of September, 1972, still placing reliance on the decision in : [1968]2SCR20 , I find that the said defective notice being accepted by the landlord, has terminated the tenancy of the tenant and the tenant is estopped from denying its validity.

15. Mr. Datta, learned counsel for the defendant-respondent has advanced another branch of argument to attack the validity of the notice Ex. 2. According to him, the learned Additional District Judge has not given any finding in his judgment on the defendant's plea that the notice Ex. 2 was obtained by the plaintiff from the defendant under undue influence, duress, coercion and molestation although the trial court rejected that plea in his judgment. It appears from the judgment of the trial court that the learned Munsif rejected such plea of the defendant on appreciation of evidence both oral and documentary. Mr. Das Gupta, learned Counsel for the plaintiff-appellant has submitted that the very fact that the learned Additional District Judge has not stated anything in his judgment about such finding of the learned Munsif, shows that the defendant-appellant in the court of the first appeal, did not agitate that point at the time of the hearing of the first appeal. It appears from the written statement that the defendant did not set forth the particulars of undue influence, duress and coercion etc. in the written statement as required under Order 6 Rule 4 of the Code of Civil Procedure although such plea was taken therein. Further the General Diary entry Ex. C which was lodged by the defendant in the Police Station on 11-1-72 only 5 days after the date of 6-1-72 when admittedly the defendant wrote the notice Ex. 2 and paid arrear rent to the plaintiff, shows that the complaint was made only on plaintiffs refusal to give rent receipt and not on any other ground like undue influence, duress, coercion and molestation. The learned Munsif therefore rightly found that the notice Ex. 2 was not vitiated by any element of undue influence, duress and coercion etc.

16. Next comes the most important branch of the argument as advanced by Mr. Das Gupta, learned counsel for the plaintiff-appellant with regard to the legal effect of the notice to quit (Ex. 2) issued under Section 13(1)(j) of the Act by the defendant to the plaintiff, placing reliance on the decision in : AIR1976SC2229 , : [1980]1SCR334 , (1981) 1 Ren CJ 114 (Cal) and : AIR1984Cal31 ; and also the argument as made by Mr. Datta, learned Counsel for the defendant respondent placing reliance on the decision in : AIR1973Cal473 . It has already been stated that in both the courts below at the time of hearing of argument, plaintiff rested his suit for eviction only on the ground of defendant's notice to quit (Ex. 2) under Section 13(1)(j) of the Act and learned counsel on both sides before the courts below advanced their argument only on the point of notice. It appears from the plaint that the plaintiff filed the suit for ejectment of the defendant on two causes of action, accruing on 1-11-71 and 1-10-72. The first cause of action accruing on 1-11-71 refers to plaintiffs claim for recovery of possession in the suit premises on the ground of defendant's default in payment of rent and plaintiffs requirement of the suit premises for building and rebuilding after terminating defendant's contractual tenancy by plaintiffs notice to quit dated 15-9-71 served upon the defendant, and the second cause of action accruing on 1-10-72 refers to plaintiffs claim for eviction of the defendant on the ground of defendant's notice to quit dated 6-1-72 served upon the plaintiff intimating that the defendant would vacate the suit premises with the expiry of September, 1972.

17, It is an undisputed fact that the plaintiff had given up his claim for eviction on the cause of action accruing on 1-11-71 at the time of argument of the suit before the courts below. Plaintiffs claim for eviction of the defendant on the cause of action accruing on 1-10-72 was decreed by the learned Munsif but dismissed by the learned Additional District Judge on reversing the decree of the learned Munsif, placing reliance on the decision in : AIR1973Cal473 which is on the point of notice to quit under Section 13(1)(j) of the Act. His Lordship Mr. Justice Salil Kumar Datta in the case reported in : AIR1973Cal473 has held that the ground in Clause (j) of Section 13(1) of the Act, relates to contractual tenancy and when such tenancy has - been determined and statutory tenancy has come into existence, there is no further scope for determining such tenancy by the tenant by the notice to quit. Mr. Justice Datta while considering the definition of 'tenant' as defined in Section 2(h) of the Act which includes any person continuing in possession after the termination of his tenancy, and the provisions of Section 13(1)(j) of the Act, has further observed in the case reported in : AIR1973Cal473 as follows: 'The definition of 'tenant' thus means any person continuing in possession after the termination of his tenancy. In the case of a valid notice, the contractual tenancy is terminated and the possession by such person thereafter is not on the basis of contract but under provisions of the statute. This tenancy is described and accepted as a statutory tenancy and its incidents are governed obviously by statute. The incidents of such tenancy do not empower the tenant or landlord to terminate such tenancy as in the case of contractual tenancy and such tenancy is to continue till a decree or order for eviction is made by a court of competent jurisdiction on the basis of the determination of the contractual tenancy. The 'notice to quit' which has always been accepted in legal parlance for determination of a contractual tenancy cannot be extended to a statutory tenancy in absence of any provision therefor as already noted when the contractual tenancy is non-existent'. The case in : AIR1973Cal473 was disposed by Mr. Justice Datta on 27-3-1973 and the learned Additional District Judge in his judgment dated 17-3-1975 followed rightly that decision. The Supreme Court in its decision : AIR1976SC2229 , while considering the definition of 'tenant' as defined in M. P. Accommodation Control Act, which is similarly defined in West Bengal Premises Tenancy Act, has observed as follows : 'We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation without ascertaining what his rights are under the statute ..... Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy and heritabiity is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation..... The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists. The incidents of such tenancy and a contractual tenancy must therefore be the same unlessany provision of the Act conveyed a contrary intention.' Basing on such observations, the Supreme Court in the case as mentioned above came to the finding that a statutory tenant under the M.P. Accommodation Control Act has the right to sublet the tenancy of course in accordance with the provisions of that Act.

18. In the Supreme Court decision in the case reported in : [1980]1SCR334 , where the main question was whether in addition to the notice for bringing a suit for eviction under the State Rent Control Act, the notice to quit under Section 106 of the Transfer of Property Act was necessary, the Supreme Court while holding that determination of a lease in accordance with the Transfer of Property Act was unnecessary has observed as follows : 'In many cases the distinction between a contractual tenant and a statutory tenant was alluded to for the purpose of elucidating some particular aspects which cropped up in a particular case. This led to the criticism of that expression in some of the decisions. Without detaining ourselves on this aspect of the matter by any elaborate discussion, in our opinion, it will suffice to say that the various State Rent Control Acts make a serious encroachment in the field of freedom of contract. It does not permit the landlord to snap his relationship with the tenant merely by his act of serving a notice to quit on him. In spite of the notice, the law says that he continues to be a tenant and he does so enjoying all the rights of lessee and is at the same time deemed to be under all liabilities such as payment of rent etc. in accordance with the law.'

19. The aforesaid two Supreme Court decisions have established that the 'tenant' as defined in the State Rent Control Act like West Bengal Premises Tenancy Act has put the statutory tenant on par with the contractual tenant, having the same incidents, and the said decisions by implication override the view of Mr. Justice Datta in : AIR1973Cal473 to the effect that the incidents of a statutory tenant under West Bengal Premises Tenancy Act are governed by statute, being distinctive from the incidents of contractual tenant, and that the incidents of such statutory tenancy do not empower the tenant to terminate such tenancy as in the case of contractual tenancy. Mr. Justice S. K. Datta himself in his subsequent decision in the case of Santosh Kumar Chatterjee v. Santosh Roy Chowdhury reported in (1981) 1 Ren CJ 114 (Cal), has followed the decision in : AIR1976SC2229 saying that statutory tenant is on par with the contractual tenant having the same incidents. The principles of law in this respect as laid down in : AIR1976SC2229 was adumbrated also in : [1980]1SCR334 as already discussed. Mr. Justice B. C. Chakravarty in his decision in the case of Nikhil Chandra Sen v. Ajit Chandra Mallik reported in : AIR1984Cal31 has also followed the said principles of law.

20. It is true that the Supreme Court decisions in : AIR1976SC2229 and : [1980]1SCR334 had not specifically reversed the decision in : AIR1973Cal473 because the decision in : AIR1973Cal473 was not under the consideration of the Supreme Court in the aforesaid two cases. But the principle of law as laid down in those Supreme Court cases regarding the incidents of statutory tenant and the contractual tenant under the State Rent Control Acts has overridden the principle of law as laid down by Mr. Justice Datta in the decision in : AIR1973Cal473 regarding the incidents of the statutory tenant, and Mr. Justice Datta subsequently has followed the aforesaid Supreme Court decision in the case reported in (1981) 1 Ren CJ 114 (Cal). If a statutory tenant can sublet his tenancy according to law in view of the decision in : AIR1976SC2229 , then a tenant being a statutory tenant on termination of his contractual tenancy by the plaintiff by service of notice under Section 106 of the Transfer of Property Act, can legally serve a notice to quit upon the landlord under Section 13(1)(j) of the Act and the plaintiff can get eviction on that ground if not otherwise barred and I accordingly decide so. This decision of mine is no doubt against the decision in : AIR1973Cal473 but I felt no necessity to refer the case to the Division Bench for their decision on this point as the principle of law as laid down in the Supreme Court decisions in : AIR1976SC2229 and : [1980]1SCR334 overrides the principle of law laid down in : AIR1973Cal473 leading to the decision in that case, and as the Judge who gave the decision in : AIR1973Cal473 followed the principle of law laid down by the Supreme Court, in his subsequent decision in (1981) 1 Ren CJ 114 (Cal).

21. Before I come to the conclusion of my judgment, let me answer also another point raised by Mr. Das Gupta, the learned counsel for the plaintiff-appellant. Mr. Das Gupta has submitted that plaintiff after service of notice to quit dated 15-9-71 upon the tenant-defendant, waived the same by accepting rent amicably for the period prior and posterior to the issue of notice to quit. The plaintiff filed the suit on the basis of the notice to quit dated 15-9-71 also, making out a case in the plaint on the basis of that notice to quit dated 15-9-71. Plaintiff led evidence also placing reliance on that notice to quit. The plaintiff by his conduct as discussed above never intended to treat tenancy as subsisting. So there was no waiver of the notice to quit dated 15-9-71 by the plaintiff. Again the decisions in : AIR1976SC2229 and : [1980]1SCR334 have rendered the termination of contractual tenancy by service of the notice to quit under Section 106 of the Transfer of Property Act and subsequent waiver thereof if any, meaningless in the suit for eviction on the ground under Section 13(1)(j) of the Act. The decision in : AIR1984Cal31 is relied on in this respect.

22. In view of what has been discussed above, I find that the learned Additional District Judge committed mistake in law in reversing the judgment and decree passed by the learned Munsif.

23. In the result, this second appeal is allowed on contest. The judgment and decree passed by the learned Additional District Judge setting aside the judgment and decree passed by the learned Munsif are set aside, and the judgment and decree passed by the learned Munsif are restored and confirmed. I make no order as to costs. The defendant is allowed time for six months from the date to vacate the suit premises, failing which, the plaintiff shall get possession in the same in execution of the decree.


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