Hawa Devi and Others vs Gangaram and Others

Dr. Vineet Kothari, J.—The present second appeal has been filed by Smt. Hawa Devi w/o. Brahm Deo Nai along with appellant No. 2 Rameshwar s/o. Chunni Lal, who were defendants in the suit filed by the respondent - Ganga Ram and both are now represented by their respective legal representatives as with the long lapse of time in the chequered history of litigation, both Ganga Ram and Hawa Devi have since expired.

The present second appeal itself was filed in this Court on 15/3/1994 and is being decided after 21 years, whereas, the present suit out of which the present second appeal arises itself was filed way back in the year 1972 on 2/5/1972 by the plaintiff - Ganga Ram, which Original Suit No. 243/72 - Ganga Ram vs. Hawa Devi & Rameshwar Lal for declaration of the title and possession of the suit shop in question came to be dismissed by the learned trial court of Munsif & Judicial Magistrate, Jodhpur City, Jodhpur on 16/9/1993. The plaintiff Ganga Ram and one Chhela Ram were real brothers and the present appellant Hawa Devi is the daughter-in-law of Chhela Ram, being wife of his son Brahm Dev. The brother Chhela Ram, as per the plaint averments, expired on 4/2/1957. According to the plaint averments, before his death there was a partition between Chhela Ram and Ganga Ram and the suit property in the present case namely; a shop situated on the southern side of the entire house of two brothers, fell in the share of plaintiff Ganga Ram and on the basis of said oral partition, both the brothers applied in the competent court for giving Patta on 27/8/1956, where the statements of Chhela Ram and one Moti Lal were recorded but the Patta of the respective shares could not be issued by the competent authority. The suit shop in question was in the tenancy of defendant No. 2 - Rameshwar, who was not related to this family, under the rent note executed in favour of plaintiff Ganga Ram on 6/8/1959. Smt. Hawa Devi filed a suit for recovery of rent against the tenant Rameshwar and also impleaded Ganga Ram as her agent as a defendant and the said suit filed under the Rent Control & Eviction Act, 1950 came to be decreed in her favour but the issue relating to title between Smt. Hawa Devi and Ganga Ram was not decided by the learned trial court and her right to receive rent from Rameshwar was upheld upto the High Court.

Later on, the present suit No. 243/72 was filed by Ganga Ram s/o. Peer Dan Parihar against Smt. Hawa Devi and tenant Rameshwar for declaration of his title over the said suit shop and for possession of the shop in question, which suit came to be dismissed by the learned trial court against the plaintiff Ganga Ram, though the factum of partition between Ganga Ram and Chhela Ram was held to have taken place but the trial court held that the said factum of partition was not clearly proved by the plaintiff as to whether it was oral or in writing and whether the shop in question situated on the southern side of the house fell in the share of Ganga Ram. The relevant extract of the order dt: 16/9/93 of learned trial court on this issue is quoted below for ready reference:-

The other issues Nos. 2, 3 and 4 were decided against the plaintiff and, thus, the suit was dismissed by the learned trial court with the following findings and observations:-

The plaintiff - Ganga Ram being aggrieved by the same filed the first appeal before the learned Addl. District Judge, No. 3, Jodhpur being Appeal No. 5/93 - L.Rs. of Ganga Ram vs. Smt. Hawa Devi & Ors., which came to be allowed by the learned first appellate court on 16/2/1994 with the following observations and findings:-

Being aggrieved by the same, the defendants Smt. Hawa Devi and Rameshwar filed the present second appeal on 15/3/1994, which after hearing both the parties was admitted by the learned Single Judge of this court on 24/7/1996. However, the stay application came to be dismissed by the learned Single Judge on the same day. Both these orders of admission and rejection of stay application are quoted below, in which substantial question of law framed for consideration of this court are also quoted below for ready reference:-

"Hon''ble Mr. P.P. Naolekar, J.

Mr. M.L. Chhangani, for the appellant.

Mr. D.S. Shishodia with Mr. Suresh Shrimali for the respondents.

Heard.

The amendment application is allowed.

The appeal is admitted on the following substantial question of law:-

"Whether the appellant who is held to be landlord in a previous litigation by the Court has a right to challenge the decree for possession granted in favour of the legal representatives of Ganga Ram although no ground under the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 has been made out against the tenant?"

Mr. Shishodia with Mr. Suresh Shrimali already entered appearance for the respondents, therefore, notice need not be issued.

The matter shall be heard and disposed of finally in the second week of August, 1996.

sd/- (P.P. Naolekar), J."

"Hon''ble Mr. P.P. Naolekar, J.

Mr. M.L. Chhangani, for the appellant.

Mr. D.S. Shishodia with Mr. Suresh Shrimali for the respondents.

In view of the order passed that the appeal shall be heard and disposed of finally in the second week of August, 1996 no order is required to be passed on the stay application.

The stay application is dismissed.

sd/- (P.P. Naolekar), J."

However, before admission of the appeal, on 30/10/1995 the appellant No. 2 Rameshwar, tenant, withdrew the second appeal and the coordinate Bench of this court passed the following order on 30/10/95:-

"30.10.95

Hon''ble Shri R.R. Yadav, J.

Mr. Misri Lal, for the appellant No. 1.

Mr. S.S. Purohit, for appellant No. 2.

Mr. D.S. Shishodia, for the respondents.

On behalf of the appellant No. 2 Rameshwar, learned counsel Mr. S.S. Purohit made a statement that he has instruction to withdraw the instant second appeal.

According to Mr. S.S. Purohit, he does not propose to proceed with the appeal.

In view of the aforesaid facts and circumstances of the case, learned counsel Mr. Misri Lal appearing on behalf of appellant No. 1 stated that he proposes to move an application for transposition as contemplated under Order 23, Rule 1-A CPC. He prays for and granted two weeks time to move application for transposition of appellant No. 2 to array of respondents. However, it is made clear that the appeal filed by appellant Rameshwar shall be deemed to have been withdrawn with effect from today.

Sd/- (R.R. Yadav), J."

Therefore, on the application filed by the appellant No. 1, Smt. Hawa Devi, the Court transposed the appellant No. 2 - Rameshwar as respondent No. 2 in the array of respondents vide order dated 4/4/1996 which is also quoted below for ready reference:-

"4.4.96

Hon''ble Shri R.R. Yadav, J.

Mr. Misrilal Chhangani, for the appellant.

Mr. Suresh Shrimali, for the respondents.

In pursuance of the order dated 30.10.95 passed by this Court, learned counsel for the appellant Mr. Misri Lal Chhangani has moved application for transposing the name of Rameshwar tenant from array of the appellant to the array of respondents as respondent No. 7.

Learned counsel Mr. Suresh Shrimali appearing on behalf of the contesting respondents vehemently opposed the aforesaid application. This application has not been moved within the prescribed period of two weeks from the date of the order i.e. 30.10.95.

Learned counsel for the appellant Mr. Misri Lal Chhangani made an oral application under Section 148 , CPC to extend the time. I consider it just and proper to condone the delay and extend the time of filing the application for transposition under O. 23 R. 1A CPC uptil date.

Request for transposition of tenant Rameshwar from array of appellant to the array of respondents is just and proper, therefore, the application for transposition is hereby allowed and name of Rameshwar (Appellant No. 2) be arrayed as respondent No. 7 in the array of respondents.

Learned counsel for the appellant is directed to file amendment cause title within a week from the date of this order.

On the joint request of learned counsel for the parties, put the instant second appeal for admission on 15.4.1996.

sd/- (R.R. Yadav), J."

Arguing the present second appeal on behalf of the appellant No. 1 - Smt. Hawa Devi, Mr. M.L. Chhangani, learned counsel for the appellant-defendant No. 1 urged that not only the aforesaid substantial question of law framed on 24/7/1996 deserves to be answered in favour of the appellant defendant, but other substantial question of law arising in the present second appeal, also deserve to be framed and answered in favour of the appellant.

Elaborating his submissions, Mr. Chhangani urged that there was no partition of the suit property between the plaintiff Ganga Ram and his brother Chhela Ram and, therefore, declaration to that effect has been wrongly given by the learned first appellate court in the impugned order dated 16/2/1994 and despite the vacant possession of the suit shop allegedly having been handed over by the appellant No. 2, tenant Rameshwar to the plaintiff Ganga Ram/his legal representatives, the right to sue and right to maintain the present second appeal qua the appellant No. 1 - Smt. Hawa Devi deserves to be sustained even now and the declaration given in favour of the plaintiff Ganga Ram on the basis of the said partition in the year 1956 deserves to be cancelled. He also urged that the defendant tenant Rameshwar was wrongly dispossessed, who is said to have been dispossessed on 24/7/1996 with the rejection of the stay application and as landlord the appellant No. 1, Smt. Hawa Devi, is entitled to claim back the possession of the suit shop from the plaintiffs, the legal representatives of Ganga Ram.

Mr. M.L. Chhangani submitted that the impugned order of the appellate court dated 16/2/1994 is not in accordance with the requirement of Order 41 Rule 31 CPC and no issue wise finding was given by the learned first appellate court and this itself gives rise to the substantial question of law and the impugned order, therefore, deserves to be set aside. He also emphatically argued the point of res judicata and submitted that once the finding of the High Court in favour of the appellant Smt. Hawa Devi that she was the landlady qua the defendant-tenant Rameshwar had become final in the previously instituted eviction suit, the appellate court in the present case in the impugned order dated 16/2/1994 could not hold otherwise and declare the plaintiff Ganga Ram as owner of the said suit shop and held him entitled to recover the possession of the suit shop in question.

Mr. M.L. Chhangani relied upon a large number of judgments in support of his aforesaid contentions before this Court, to frame additional substantial questions of law, about the tenor of the impugned order not being in accordance with Order 41 Rule 31 CPC and the principle of res judicata applying in the present case. It may be stated straightway here that there is no quarrel with the principles sought to be relied upon by the learned counsel for the appellant and the case laws relied upon by him but the detailed discussion is not found necessary here in the present case in view of the following reasons on which the present appeal is being disposed of by this Court.

Countering the submissions made by the learned counsel for the appellant, Mr. Suresh Shrimali, learned counsel appearing for the respondent-plaintiffs, legal representatives of Ganga Ram vehemently submitted that as a matter of fact the present appeal of Smt. Hawa Devi itself has become infructuous and foundation-less, since the appellant No. 2 Rameshwar, the original tenant, has already withdrawn the present second appeal and has handed over the vacant possession of the suit shop in question to the legal representatives of Ganga Ram on 24/7/1996 itself. Learned counsel Mr. Shrimali submitted that the appellant No. 1 - Smt. Hawa Devi has neither filed any suit for declaration or partition nor has filed any counter claim or cross objections in this regard before the courts below and she cannot challenge the declaration and title given in favour of the plaintiff Ganga Ram on the basis of old partition in 1956 between the two brothers, Ganga Ram and Chhela Ram, which on the basis of various evidences, oral as well as documentary, brought before the court below & the appellate court has returned the correct findings in favour of the plaintiff, while the learned trial court finding that there was some partition but did not give any concrete findings that the said suit shop fallen in the share of the plaintiff Ganga Ram.

About the argument of res judicata raised by the learned counsel for the appellant, learned counsel for the respondent-plaintiff, Mr. Suresh Shrimali emphasized that the findings in the earlier suit for eviction filed by Smt. Hawa Devi against the defendant tenant - Rameshwar could not form the res judicata in the present suit for declaration and possession of the suit shop as the definition of "landlord" under the Rent Control Act is of wide nature and the question of title is neither relevant nor was decided in favour of the appellant Smt. Hawa Devi. He also brought to the notice of the Court the decision of learned Single Judge of this Court in S.B. Civil Second Appeal No. 103/78 between these parties; Ganga Ram vs. Smt. Hawa Devi decided on 11/4/1991 (Hon''ble N.C. Kochar, J.) arising out of the present civil suit No. 243/72 in its first round of second appeal under Section 100 CPC before this Court, holding that the previous order of the trial court dated 22/8/67 in eviction suit of 1965 would operate as res judicata only on the point which has been decided in the earlier suit that the Rameshwar is a tenant of Smt. Hawa Devi and is liable to pay rent to her and the plaintiff''s (Ganga Ram) present suit for declaration that he is the owner of the property cannot be thrown out on the ground that this suit is barred by the principle of res judicata and, thus, the case was remanded back to the trial court & thereafter, this second appeal is before this Court in the second round of litigation in the suit No. 243/72. The said order dated 11/4/1991 is quoted below in extenso for ready reference:-

"S.B. Civil Second Appeal No. 103/78 Gangaram Vs. Smt. Hawadevi & Anr.

11.04.1991

Hon''ble Mr. N.C. Kochar, J.

Present:- Mr. H.M. Parekh

Mr. R.M. Bhansali) for the appellant.

Mr. M.R. Singhvi, for the respondents.

This second appeal under Section 100 of the Code of Civil Procedure (the Code) is directed against the judgment and decree dated 23.7.1978 passed by the learned Additional District Judge No. 2, Jodhpur in Civil Appeal No. 8/75 arising out of the judgment and decree dated 29.3.1975 passed in Civil Suit No. 243/72 decided by the learned Munsif City, Jodhpur. The brief facts are as under:-

Plaintiff Gangaram and Chhelaram were the real brothers. Chhelaram had a son Brahmdeo, who was married to respondent-defendant No. 1 Hawadevi. Brahmdeo died issueless during the life time of his father Chhelaram. Rameshwar, defendant-respondent No. 2 has been occupying the shop in dispute in the capacity of a tenant at a monthly rent of Rs. 20/-. In the year 1965, defendant-respondent Hawadevi filed a suit against Rameshwar and Gangaram stating that Rameshwar had been inducted as tenant by her father-in-law Chhelaram and a rent note was executed by Rameshwar in favour of her father-in-law and that after the death of her father-in-law she inherited his rights in the shop in dispute and was entitled to receive rent from Rameshwar and under her authority plaintiff Gangaram had been receiving rent from defendant Rameshwar and is liable to pay the same to him. In the written statement, defendant Rameshwar admitted that he was a tenant under Chhelaram and after his death under Hawadevi but stated that he had been paying rent to Gangaram on behalf of Hawadevi. The claim of Hawadevi in that suit was contested by Gangaram on the ground that he had inducted Rameshwar in the shop in dispute and he was his tenant and not that of Hawadevi and that he had been recovering the rent from Rameshwar in his own right. He claimed to be the owner of the property in dispute. The learned trial court framed the issues including whether the property in dispute was owned by Gangaram and whether Gangaram had inducted Rameshwar in the property in dispute as a tenant besides framing issue whether Hawadevi was the landlord entitled to recover rent from Rameshwar and Gangaram had been receiving rent from Rameshwar on her behalf. During the pendency of the said suit, an application was moved by plaintiff Gangaram (the defendant in the said case) stating that the suit being for recovery of rent and ejectment, the issue regarding the title to the property was not necessary and was not required to be decided. After hearing the learned counsel for the parties, vide order dated 3.3.1967, the learned trial court deleted the issue regarding title on the ground that it was not necessary to decide it in the above said suit. The remaining issues were decided in favour of Hawadevi and it was held that she was entitled to receive rent from Rameshwar and Gangaram had been receiving rent on her behalf and under her authority from the above said tenant, and consequently, vide judgment dated 22.8.1967 the learned trial court passed a decree directing the plaintiff Gangaram to pay to Hawadevi the amount of rent already recovered by him from Rameshwar and also the rent after the filing of the suit which might have been recovered during the pendency of the suit.

After the decision of the above said suit, the present suit was filed by plaintiff Gangaram in the year 1972 impleading Hawadevi and Rameshwar as the defendants and alleging that the shop in dispute had come to his share by way of partition and that Rameshwar was his tenant but had failed to vacate the shop in dispute inspite of service of notice and had also not paid the arrears of rent and that he being the owner of the shop in dispute was entitled to a decree of ejectment and for damages for use and occupation of the shop in dispute. The suit was contested by both the defendants. Rameshwar-defendant was liable to be evicted from the shop in dispute. Hawadevi contested the suit, inter alia, on the ground that it was passed in the earlier suit on 22.8.1967. The learned trial court, after hearing the learned counsel for the parties, dismissed the suit on the ground that it was barred by the principles of res judicata. His appeal having been dismissed by the learned Additional District Judge vide the impugned judgment dated 27.3.1978, the plaintiff has approached this court by filing this appeal. During the pendency of the appeal, plaintiff Gangaram died and his legal representatives were brought on record as the appellants vide order dated 13.11.1979.

I have heard the learned counsel for the parties and have also perused the record of the case.

The only question that arises for consideration and which has been argued before me is whether the judgment dated 22.8.1967 vide which the earlier suit filed by Hawadevi against plaintiff Gangaram and Rameshwar was decided, would operate as res judicata and, as such, the suit filed by plaintiff Gangaram against Rameshwar and Hawadevi could not be tried by the learned trial court.

As noted above, in the earlier suit, the case set up by Hawadevi was that Rameshwar had been inducted as a tenant in the shop in dispute by her father-in-law Chhelaram and that after his death she had inherited his rights in the property in dispute and that Rameshwar who was earlier liable to pay rent to Chhelaram was liable to pay rent to her and that whatever rent was paid by Rameshwar to Gangaram had been received by the latter on her behalf and under her authority and that in the said suit Gangaram had denied not only the fact that the property in dispute had been let out by Chhelaram and had pleaded that he had inducted Rameshwar in the shop in dispute but had also taken a plea that he was the owner of the shop in dispute and on these pleadings besides framing the issue regarding relationship of landlord and tenant, between Hawadevi and Rameshwar and between Gangaram and Rameshwar an issue about the title of Gangaram in respect of the property in dispute was also framed which was deleted as redundant being not necessary to be decided, in the earlier suit, on an application moved by Gangaram which was decided by the court vide order dated 22.8.1967. It thus cannot be disputed that in the earlier suit the question of title was not gone into by the court, who in the judgment dated 22.8.1967 specifically held that the point was not to be decided by the court and was not being gone into and the only decision was recorded in respect of the remaining issues, according to which it was found that Rameshwar was a tenant under Hawadevi and not under Gangaram and whatever amount of rent had been received by Gangaram from Rameshwar was on her behalf and under the authority of Hawadevi.

Shri Singhvi, the learned counsel for the respondents has contended that in the earlier suit the plea of ownership ought to have been got decided by the plaintiff and he having not got it decided it should be taken that the plea was not taken and should be deemed to have been decided against the plaintiff. He placed reliance on the decision in cases Shri. Nirmal Enem Horo Vs. Smt. Jahan Ara Jaipal Singh, , "Koshal Pal & Ors. V/s. Mohan Lal & Ors." ( AIR 1973 SC 688 ) and Shah Jawaharlal Vs. Shah Chhaganlal and Others, .

Section 11 of the Code along with its explanation (IV) is reproduced as under:-

"Section 11 . Res Judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit"

Bare reading of Section 11 shows that it can apply only if the issue arising in the second suit was required to be decided and was decided and all pleas/grounds for or against the issues which were available to the party concerned ought to have been taken in the earlier suit and if the suit is brought in regard to the same issue on a ground or plea which was not taken in the earlier suit, the latter suit would be barred by the principles incorporated in this section.

As noted above, the suit was for recovery of rent from a tenant and the definition of the landlord as mentioned in the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (the Rent Act) would show that it is not necessary that the landlord must be the owner of the tenanted premises. It may further be noticed that although the plea of ownership was raised by the plaintiff who was the defendant in that suit, the court found it unnecessary to decide it as the suit was filed by the landlord within the meaning of the Rent Act against the tenant. Whether order holding that the issue was not required to be decided was passed by the court on its own or on the application of the plaintiff would make no difference but the fact remains that the issue regarding title remained undecided. None of the above said authorities relied upon by the learned counsel for the respondent Hawadevi deals with the situation like the one in the case on hand. The said authorities clarify the principle of res judicata and the main stress is that all pleas for or against the issue involved in the earlier previously decided suit ought to have been taken in the earlier suit. They are, therefore, in my view, of no assistance to the respondents.

In my view, judgment dated 22.8.1967 would operate as res judicata to the point which had been decided in the earlier suit i.e. that Rameshwar is a tenant under Hawadevi and is liable to pay rent to her and the plaintiff''s suit for declaration that he is the owner of the property in dispute cannot be thrown out on the ground that the suit is barred by the principles of res judicata. Of course, it will be for the learned trial court to find out whether the plaintiff his successors-in-interest (legal representatives) are the owner of the property in dispute and if so to what rights, if any, they are entitled.

In view of my above discussion, I partly accept this second appeal, set aside the impugned judgments and decrees and remand the case to the learned trial court to decide the same in light of the observation made above. In the circumstances of the case, there will be no order as to costs. The appeal stands decided accordingly."

In view of the aforesaid judgment of this court dated 11/4/1991, which has not been challenged further, the argument of the learned counsel for the appellant Mr. M.L. Chhangani that the findings of trial court in the judgment dated 22/8/1967 about Smt. Hawa Devi being the landlady qua tenant Rameshwar would operate as res judicata for present suit for declaration of file & possession is liable to be rejected straightway, since this Court has already put to rest the said issue. The same is accordingly rejected.

Now coming to the issue of declaration and possession based on the title of the plaintiff Ganga Ram given by the learned first appellate court in the impugned order, it may be pointed out that the substantial question of law framed by this Court on 24/7/1967 does not even touch the said point. The said substantial question of law, as quoted above, is about the issue of res judicata only and in view of the aforesaid the substantial question of law framed by this Court clearly deserves to be answered against the appellant Smt. Hawa Devi and she cannot claim any relief in the present second appeal or on the basis of previous judgment dated 22/8/67 in her favour in the eviction suit filed by her, wherein, she was declared landlady qua the tenant Rameshwar and the question as framed is liable to be answered against her and in favour of the respondent-plaintiff Ganga Ram holding that she does not have any right to challenge the decree of possession in favour of Ganga Ram without claiming any partition of the property in her own right, which she has not done. She has never claimed the suit shop as belonging to her by way of counter claim or cross objection in the present suit filed by Ganga Ram except raising a vague & unestablished plea of adverse possession.

This Court cannot appreciate the stand of the appellant No. 1 - Hawa Devi, particularly when the defendant tenant Rameshwar has already handed over the vacant possession of the suit shop in question to the plaintiff Ganga Ram in the present case on 24/7/1996 itself with the rejection of the stay application and now nothing survives in the present second appeal for the appellant Smt. Hawa Devi. She cannot claim the ownership or title over the said suit shop, particularly with the withdrawal of the present appeal by the defendant tenant Rameshwar and his transposition as respondent No. 7 later on under the order dated 4/4/1996 also does not enure to the benefit of appellant Smt. Hawa Devi in any manner. The findings of the learned court below about partition between the two brothers Ganga Ram and Chhela Ram having taken place in the year 1956 on the basis of proceedings taken for Patta and other oral evidence recorded by the learned trial court do not appear to be perverse in any manner nor any question of law can be said to be arising so as to be permitted to be raised at this stage, as contended. If the appellant No. 1 Smt. Hawa Devi wanted to claim any independent right or title, she could have filed a suit for declaration in this regard. But as a defendant in the suit for declaration and possession filed by the plaintiff Ganga Ram essentially to seek possession from the tenant Rameshwar, which relief stood granted to him with the defendant-tenant Rameshwar having handed over the possession to him on 24/7/1996, therefore, no relief can be granted by this Court in favour of appellant Smt. Hawa Devi & the present second appeal of Smt. Hawa Devi has become infructuous. It may also be pointed out that not only there is no substantial question of law already framed in this regard, nor this court considers it expedient and necessary to frame any such substantial question of law, as no merit in the claim of appellant Smt. Hawa Devi is found. The entire burden of arguments of Mr. M.L. Chhangani is to raise a castle in the air without any foundation for Hawa Devi & her legal representatives now and, therefore, the large number of judgments relied upon by him for urging this Court to frame such additional questions of law and holding the present suit as barred by the principle of res judicata and the impugned appellate order being not in accordance with Order 41 Rule 31 CPC etc. are found to be purely academic question & citations, which do not require application of these case laws to the facts of the present case.

Accordingly, the present second appeal filed by Smt. Hawa Devi is found to be devoid of merit and the long litigation by her deserves to be put to an end by dismissing her present second appeal. This Court would have imposed costs on the appellant - Smt. Hawa Devi but in view of the fact that she is now dead & is represented by her legal representatives only, namely children of her daughter, this Court would refrain from imposing any costs on the appellant Smt. Hawa Devi or her legal representatives.

In view of the above, the present second appeal of defendant - Smt. Hawa Devi is dismissed and the substantial question of law framed by this Court is answered in negative and against the appellant and in favour of the respondent-plaintiff and it is held that the appellant No. 1 Smt. Hawa Devi is not entitled to any relief in view of the fact that the tenant Rameshwar, the co-appellant has already got his present appeal withdrawn and has handed over the vacant possession of the suit shop in question to the legal representatives of plaintiff Ganga Ram & this appeal, therefore, actually has become infructuous.

The second appeal is dismissed. No costs. Copy of the order be sent the parties concerned forthwith.