Madan, J.
1. The appellant (defendant) has challenged the judgment & decree dated 21.8.99 of the ADJ No. 2, Ajmer who allowed respondent's civil appeal No. 1/98 by setting aside trial Court's judgment dated 15.1.96 in civil suit No. 8/91, and accordingly granted decree of eviction against the tenant (appellant.
2. Facts giving rise to this second appeal briefly stated, are that the plaintiffs (respondents-landlords) instituted a civil suit seeking decree of arrears of rent due from 1.1.1990 @ Rs. 50/-per month and for eviction of the defendant (appellant) from the suit shop described in the plaint on the grounds inter alia of-(1) default in making payment of regular & monthly rent @ Rs. 50/- from 1.1.1990, (2) denial of title of landlords (plaintiffs) as to the suit shop; and (3) bona fide and reasonable need of the plaintiffs.
3. In written statement, the defendants denied the averments of the plaint to the effect that the plaintiffs had purchased Khasra Nos. 2098 & 2099, Christian Ganj Road Ajmer alongwith constructions thereon from legal representatives of Gopinath & Pannalal. However the defendants stated that the plaintiffs be put to strict proof as to the facts stated in para 1 of the plaint which were to the effect that the defendant was tenant of the legal representatives of Pannalal for a shop duly constructed in Khasia No. 2098/2099 at a monthly rent of Rs. 50/- and that by virtue of purchase of aforesaid land of Khasras (supra) alongwith shop constructed thereon from 1.1.1990, the defendant became tenant of the plaintiffs by at tornment. As per para 4 of the plaint, the notice of at tornment was sent to the defendant but he defaulted by not paying monthly rent w.e.f 1.1.1990. In written statement as per para 12, the defendant denied himself to be tenant of the plaintiffs but it was slated that Narain Prakash Mathur was the owner of the suit shop.
4. On the basis of the pleadings of the parties, as many as eight issues were framed. The plaintiffs examined Rama Goyal (PW1) whereas defendant examined himself as DW1. After trial, the trial Court by its judgment dated 18.3.94 dismissed the suit for eviction, against which plaintiffs preferred civil first appeal No. 104/94 wherein by substituting issue No. 1 and while setting aside dismissal of plaintiff's suit, the first appellate court by its judgment dated 6.10.95 remanded the suit back to the trial court under Order 41, Rule 23 CPC for deciding all the issues after taking evidence of the parties only on substituted issue No. I.
5. However, no evidence was led by both the parties and therefore, the trial Court after hearing arguments by its judgment dated 15.1.96 again dismissed suit No. 8/91 : (144/90), against which the plaintiff preferred appeal No. 13/96 wherein the appellate court under its judgment dated 30.7.96 remanded the matter back to the trial Court for deciding issue Nos. 3, 4 & 5 afresh and newly framed issue No. 8A after affording opportunity to the parties for leading their evidence and thereby directed the trial Court to remit its conclusion on aforesaid four issues. The trial Court by its judgment dated 28.4.97 remitted its conclusions and according to findings arrived at by it, issue Nos. 3, 4, 5 & newly framed issue No. 8A were decided in favour of the plaintiffs and against the defendant. Therefore the defendant submitted his objections against the conclusions drawn by the trial Court in its judgment dated 28.4.97 on issue Nos. 3, 4, 5 & 8A before the first appellate court. Accordingly the first appellate court heard the plaintiffs appeal against findings on issue Nos. 1, 2, 6 & 7 arrived at by the trial Court in its earlier judgment dated 15.1.96 and further considered the defendants' objections as against conclusions drawn on reframed issue No. 8A & remanded issue Nos. 3, 4 & 5 under trial court's judgment dated 28.4.97 and after considering rival contentions, the first appellate court by impugned judgment dated 21.8.99 while deciding all issues 1 to 8A except No.7 in favour of the plaintiffs, decreed their suit for eviction & arrears of rent against the defendant and set aside dismissal of the suit under judgment dated 15.1.96 impugned in plaintiff's appeal No. 1/98. Hence this second appeal has been preferred by the defendant assailing not only judgment dated 21.8.99 of the first appellate court but also concurrent findings arrived at by the trial Court in its judgment dated 28.4.97 on issue Nos. 3, 4, 5 & 8A affirmed by judgment impugned in this second appeal.
6. Albeit the learned counsel for the appellant proposed in memo of second appeal as many as fifteen questions describing them as substantial but contrarily, learned counsel for the respondents contended that the questions proposed by the appellants are neither involved nor they are substantial in the light of Section 100 CPC inasmuch as in view of the concurrent findings of fact of both the courts below on certain issues, this appeal deserves to be dismissed.
7. After having heard the learned counsel for the parties and considered their rival contentions, I may hasten to point out that questions proposed in memo of this appeal describing them as substantial are not formulated properly and they are mere repetition to each other. It is not in dispute that the fate of this litigation hinges on issue No.1 framed & decided by the trial Court as to relationship of tenancy between the plaintiffs & defendant (appellant) so also as to the denial of title and ownership of the plaintiffs in respect of the suit shop/rented premises. Hence I albeit reframe following questions for consideration while hearing and deciding this appeal but at this juncture I restrain from saying as to whether they are substantial questions of law or are involved for admitting this second appeal for hearing within the purview of Section 100, CPC-
1. Whether advocate/pleader in the suit itself can appear as a witness without retiring from a case and whose such evidence can be read - as admissible in the facts and circumstances for the present case, especially as a power of attorney holder and as an attesting witness to material documentary evidence, i.e. sale deed?
2. Whether in a eviction suit contested on denial of not only title by the defendant but also denial of relationship as landlord and tenant in between plaintiffs and defendant, a decree of eviction can be passed especially in the absence of plaintiffs or their predecessors in-title, having failed to appear as witness to support their case?
3. Whether in an eviction suit by a co-owner, ground of default can be proved by other witness then landlord or his predecessors in title who failed to appear as witness to prove default?
4. Whether principle of Order 8 Rule 4 CPC is applicable in the facts and circumstances of the case?
8. Shri Rajesh Kapoor learned counsel for the respondent (appellant) contended that in para 12 of written statement to the amended plaint, the defendant had stated that Narain Prakash Mathur was the real landlord, to which the plaintiffs could have objected for deletion of that name, inasmuch as in his statement recorded on 16.3.94, Rals Ahmed (DW1) (defendant) deposed that he has been paying Rs. 50A per month to the said Narain Prakash Malhur, to which also no cross examination was made by the plaintiffs, where defence of the defendant was struck off, and however, such statement had remained unrebutted thereby the defendant discharged his burden proving Narain Prakash Mathur as his landlord. Thus, according to Shri Kapoor the learned first appellate court while reversing dismissal of the suit, has committed an error of law in holding that the defendant has neither clearly stated in written statement as to who was his landlord nor any evidence was led in that regard.
9. Contrarily, Ms Rama Goyal for the plaintiffs (respondents) urged and drew attention of this Court to the averments made in paras t, 2 & 3 of the plaint and corresponding paras of written statement including para 17, in order to show that the defendant did not specifically deny the ownership so also relationship of landlord and tenant of the suit shop.
10. Further case urged by Mr. Kapoor is that in the present suit for eviction, the plaintiff have not been examined to prove their case in the plaint and instead, their pleader & power of attorney holder Ms Rama Goyal has appeared as PW1 whereas according to Rule 13 of the Bar Council of India Rules, an advocate cannot appear in a case where he/she believes that he/she will be a witness. Shri Kapoor cited a decision in R.K. Agrawal v. Rana Harish Chand (1), as per which statement of advocate recorded be expunged from the record as no evidence. Another decision cited by Shri Kapoor is Ram Prasad v. Hari Narain (2.
11. Shri Kapoor also urged that despite factual objections having been taken and supported by defendant's evidence, the plaintiffs have failed to appear in witness box, which alone is a good ground to discredit truthfulness of their case, inasmuch as according to sale deeds (Ex. 1 & 2), only half of shares of the vendors had been bought by the plaintiffs while as per Ex.1 vendors are not previous landlord of the defendant and further as per notice (Ex.6) having been given by the vendors. Narain Prakash Mathur was the owner of 15 sq. yards, and who would have instigated the defendant not to pay rent to the previous landlord onwards and, therefore, Narain Prakash Mathur was one of co- sharers in the property purchased by the plaintiffs under sale deeds Ex.1 & 2) as is borne out from notice (Ex.6) and pleaded by the plaintiffs in paras 10, 11 & 12 of the amended plaint. Shri Kapoor then contended that once thete was dispute as to who was the landlord in respect of the defendant, for which material witness was either the plaintiffs, or the predecessors in title but having failed to examine these material witnesses, adverse inference ought to have been drawn under Section 114 of the Evidence Act. Shri Kapoor cited decisions in Abdul Kareem v. Babulai (3), and Bajrang Lal Poddar v. Sitaram Kedia (4.
12. In Abdul Kareem v. Babulai (supra) the plaintiff did not go into the witness box to contradict the evidence of as many as six witnesses on the side of the defendants, therefore, the Bhopal High Court held that the inference drawn by the trial Court was perfectly correct and the conclusion that the plaintiff had waived his right of pre-emption, was unassailable.
13. In Bajranglal Poddar v. Sitaram (supra), the Calcutta High Court observed that failure of the plaintiff to call his wife and Chirnanlal's wife being the persons according to the plaintiff whose goods were attached and who were present at the time of attachment and the failure to call Hemrat as being the person (who alone could have proved that the good attached were not his) entitles to draw the inference, for which the Court drew inference that if such persons were called they would not have supported the plaintiffs case.
14. In R.K. Agrawal v. Rana Harish Chandra (supra) from the pleadings i.e. para 9 of the plaint & written statement at para 19, it was clear that on 30.12.1991 there was a meeting wherein Advocate Vaishnav was also present alongwith other persons and therefore the Bombay High Court observed that in the facts and circumstances of the case -Vaishnav knew fully well and he was likely to be cited as a material witness and therefore he had a choice either to appear as a witness or to appear as an advocate and once he exercised the said choice, then he could not be examined as a witness on behalf of the defendants by retiring from the suit at a subsequent stage. After having considered provisions of Section 120 of the Evidence Act which only deals with as to who testify as a witness, the Bombay High Court observed that this section did not lay down any restriction or restraint on the advocate to be a witness in the case where he is acting as an advocate. The Court then observed that advocate's duty of utmost good faith or trusteeship will prevent him as Advocate and witness in the same case unless he is formal witness; and that in law Advocate owes duty to his client as well as to the rival party and also to the Court and, therefore, it is undesirable that he should testify either for or against the party whose case he is conducting.
15. Further, as per 5.60 of the Evidence Act so also Order 3 Rule 1 CPC, competency of a person to testify as a witness is different from that of credibility of the testimony of the witness inasmuch as Order 3 Rule 1 CPC does not restrict a holder of power of attorney to depose on behalf of the plaintiff (party) in relation to the mailer in issue and moreover deposition of the power of attorney holder is not a part of the pleadings, as it is a part of the procedure for proving a case according to Section 118 of the Evidence Act, and that being so, in view of Sections 118 & 66 of the Evidence Act, power of attorney holder is a competent witness and is entitled to appear as such and his deposition will be read in evidence on record. What precauh on which requires to be taken is that it is for the Court to draw necessary inference in case of failure of the party to appear in person in the matter and it will then consider the burden so discharged by the person appearing and whether power of attorney holder has personal knowledge of the matter in issue is a question which is to be thrashed by cross examination. I am fortified from the view taken by this Court in Kailashi Devi v. Matadeen Agarwal (5), which was based on a catena of decisions referred to therein.
16. His settled law that giving deposition on oath as a power of attorney holder of a party is not a part of pleadings, and rather it is a part of procedure for proving a case by examining a competent witness; who can be competent witness is envisaged in the Indian Evidence Act alone as per Section 118 thereof. The power of attorney holder of a party merely on the ground of his holding such power of attorney, cannot be said to be a person who is incapable of being witness under Section 118 of the Evidence Act, because the question whether such a power of attorney has personal knowledge about the controversy or not, may be a question which can be thrashed out by cross examining him and only if it is found that power of attorney holder had no personal knowledge about the facts in controversy, the evidentiary value of his deposition can be whittled down, Inasmuch as that has nothing to do with compelence of such a power of attorney holder to depose either before a Court or a judicial Tribunal as a competent witness.
17. This Court in Kailashi Devi v. Maladeen Agrawal (supra) after having placed reliance on various decisions referred to therein held that the power of attorney is competent witness and is entitled to appear as such; his statements in the court cannot be ignored nor can be held that his stalernent shall not be read in evidence only because of me reasons that he had appeared as a power of attorney and in case the parties to suit (plaintiff or defendant) do not choose to appear as a witness in witness box, it cannot be said that the his evidence (power of attorney holder's who appeared in the capacity as a holder of power attorney) is not lobe read at all. In another decision (Gulab Devi v. Bhagwan Sahai (6), this Court held that it was open to the plaintiff to examine her witness and the learned Munsif committed an error of law in the exercise of his jurisdiction when he denied that right to the plaintiff and refused to examine her attorney as her witness and thus committed another similar error in deciding on behalf of the plaintiff that she should record her own statement in support of her claim in the suit.
18. Even in Ram Prasad v. Hari Narain (supra), cited by Shri Rajesh Kapoor), this Court observed as under:-
'I am of the considered view that word 'acts' used in Rule 2 of Order 3 Code of Civil Procedure does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever he has knowledge about the case, he can state on oath but he cannot appear as a witness on behalf of the party in the capacity of that party.'
19. Here I may advert to significant provisions of Section 109 & 110 of the Evidence Act which relates to burden of proof as to relationship in the cases of partners, landlord and tenant, principal and agent. As per Section 109, ibid, when the question is whether persons are partners, landlord and tenant, or principal and agent, and if it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it. Similarly according to Section 110, ibid, which relates to burden of proof as to ownership, when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
20. In the instant suit for eviction & rent, as against the case of the plaintiffs tenancy relationship subsists between him and the defendant, contrarily, it is the case of the defendant that sub relationship does not subsist between them and rather the defendant denied not only the title of landlord but also tenancy with the plaintiff. Keeping in view the provision of Section 109 of the Evidence Act, the burden of proving that they do not stand in relationship as landlord & tenant or that the plaintiff is not the owner of the suit shop, was heavily on the defendant who affirmed that he is not the tenant or that the plaintiff is not the owner, but nevertheless he failed to discharge that onus.
21. No doubt, the plaintiffs have not appeared in the witness box. Similarly the defendant albeit has appeared and examined himself as DW1, but curiously enough at the very threshold of his deposition during examination-in-chief, upon having pointed out on behalf of the plaintiffs as to the defendant's defence having already been struck off, his evidence was discontinued and closed and thereby the plaintiff had obviously no opportunity to cross examine the defendant inasmuch as after having defendant's defence stood struck off, his evidence or deposition, having been left incomplete, it cannot be taken into consideration for his benefit on the assertion made on his behalf in this appeal that no cross examination was made by the plaintiffs on the fact which was deposed during part of recorded of the statement of defendant (DW1) that he was paying monthly Rs. 50/- to Shri Narain Prakash Mathur. Thus once the defence of the defendant stood struck off, the question of cross-examination or any suggestion being put to the defendant by the plaintiff that Narain Prakash Mathur is not the landlord of the defendant; would not have legally arisen nor any non-cross examination on the part of the plaintiffs in view of striking out the defence of the defendant would draw adverse inference against the plaintiffs, nor it can be said that since statement of defendant, if any, recorded incompletely has remained unrebutted and therefore cannot be relied upon. In view of the striking off the defence, the defendant ought to have discharged his burden of proving the fact that Narain Prakash Mathur was in fact his landlord, by thrashing out in cross examination of plaintiffs' witnesses which he failed to do so.
22. As regards status of Narain Prakash Mathur, the plaintiffs not only in para 3 of earlier plaint but also in amended plaint have specifically pleaded that Narain Prakash Mathur has been their tenant, to other parts of House No. 1/1064 where the suit shop is situated and similar averments have been made in para 10 of the plaint showing status of Narain Prakash Mathur has not been denied in written statement and only assertions made in paras 3 & 10 of written statement are that paras 3 & 10 are not accepted for went of knowledge.
23. As regards contention of Shri Kapur that in para 11 of the written statement it has been clearly mentioned that Narain Prakash Mathur was the real landlord, here 1 must hasten to add that though the trial Court allowed amendment in the plaint to the plaintiff but not to the defendant who had only to reply to the amended paras allowed to be added in the plaint, whereas para 12 of the plaint was neither sought to be amended nor amended by the plaintiff who only added paras 12(a) and 12(b) before para 13, to which the defendant had to reply in subsequent written statement to the amended plaint. But curiously enough the defendant ought not to have changed his pleading by stating new facts other than those averred in earlier written statement (wherein he neither disclosed name of his alleged landlord to whom he claimed to be tenant nor he disclosed that Narain Prakash Malhur was the landlord or owner to the rented suit shop) to the unamended plaint.
24. In earlier written statement to the unamended plaint the defendant has not at all asserted that he was paying rent of the suit shop to Narain Prakash Mathur or that Narain Prakash Mathur has been his landlord or owner of the suit shop. Even otherwise in subsequent written statement to the amended plaint, in para 12 though the defendant has disclosed name of Narain Prakash Mathur but in fact he recited, 'Narain Prakash Malliur Jo Ki Vaadgrasat Parisar ke Asali Malik Hai' which means that his assertion was that Narain Prakash Mathur was the owner of suit shop. Thus is my considered view, since the defendant never specifically asserted that Narain Prakash Mathur is his landlord or that he has been paying rent of the suit shop/rented premises to him, it is thus not open to him at later and subsequent stage to shift his stand to the disadvantage of the plaintiffs. It is only when-the plaint was sought and allowed to be amended then only in reply thereto, the defendant subsequently asserted in para 12 (which was not sought or allowed to be amended and therefore, he was not required to reply to para 12 of the amended plaint) as is being contended by Shri Kapur and that too not in a specific term but by only averring that Narain Prakash Mathur is real owner of the suit demise and while he did not state that he (Narain Prakash Mathur) was his landlord. Hence 1 find no substance in the contention made in this manner on behalf of the defendant by Shri Kapur as he has been merely trying to shift his burden on one pretext or the other.
25. As regards admissibility and credibility of the evidence of Ms Rama Goyal (PW1), it is not in dispute that she has been appearing as advocate of the plaintiffs right from the threshold of trial stage through out and further that she did also hold power of attorney and despite all this defendant has strenuously alleged that since she appeared as a witness to support the plaintiffs' case therefore her deposition as attorney should not be relied upon, cannot be accepted. As already held above, there is no embargo for a power of attorney holder to appear in the witness box, nor his/her evidence can be held to be not reliable merely because she as power of attorney holder has appeared in that capacity, nor the Evidence Act lays down any restriction or restraint on the advocate to be a witness, in the case where he/she is acting as an advocate.
26. As per decision cited by Shri Kapur, in R.K. Agrawal v. Rana Harish Chandra (supra) an advocate should not testify either for or against the party whose case he is conducting. It was a case where as per plaint & written statement the advocate was likely to be cited as a material witness on account of his being present in a meeting out of which the dispute had arisen, whereas in the present case, situation is otherwise different. Rather not only in examination-in-chief but also in cross-examination upon suggestion put on behalf of the defendant, Ms Rama Goyal (PW1) categorically deposed that she has also been member of family of the plaintiffs and that Gopal Prakash (plaintiff No.1) is her brother, Lata & Shobhagya (plaintiff Nos. 2 & 3) are her sisters while Chinni Devi (plaintiff No.4) is her mother and that Gopal Prakash has given power of attorney in her favour, besides Vakalatnama. Thus, being member of plaintiffs family, it can safely be assumed that Rama Goyal had personal knowledge not about the execution of sale deed, but also with regard to attornment and therefore in the facts and circumstances, Rama Goyal (PW1) was competent witness to testify even in the absence of plaintiffs who were her brother, sisters and mother by appearing in support of their case. Hence her testimony cannot be doubted on discredited on the premise as so contended by appellants' counsel.
27. It is trite law that the first appellate court is required to come into close quarters with the conclusions drawn by the trial Court and then to assign its own reasons while reversing a finding fact and for arriving at a different finding. This viewed, the first appellate court continues as before to be a final Court of facts and its findings recorded on due appreciation of evidence are not open to challenge before the High Court in second appeal. Accordingly the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one requiring adjudication by this Court in second appeal.
28. However, in the instant case, on issue Nos. 3, 4 & 5 the findings of facts and law both are concurrent one and the first appellate court reversed findings of the trial Court on issue No.1, which have been challenged in this second appeal only on the assertion that since the plaintiffs or their predecessors in title have failed to appear as witness to support their case in respect of the controversy as to the tenancy relationship between the plaintiffs & defendant so also as to the denial of title of the plaintiffs over the suit shop, no decree of eviction on the grounds either of default or denttal of title and further stress was laid on the assertions that no decree of eviction can be passed even on the evidence of other than plaintiffs for their non-appearance in the witness box, by their advocate who withstanding as a counsel herself has appeared as an attorney on their behalf.
29. All these assertions have been dealt with at length herein above and in my considered view, in the facts and circumstances of this case, plaintiffs witness Rama Goyal (PW1) despite holding power of attorney or Vakalatnama as advocate on behalf of the plaintiff, was competent witness and whose evidence cannot be held to be inadmissible nor can be ignored or whittled down especially when her personal knowledge of the matter in issue acquired either as power of attorney holder or advocate on behalf of the plaintiff or defendant could not have been discredited in cross examination. In these facts and circumstances of the case, non-appearance of the plaintiffs in witness box cannot be inferred as fatal to their case in an eviction suit, may be on the grounds either of default or of denial of title of the plaintiffs over the suit shop. The grounds of default as well as title of the plaintiffs over the suit shop in this eviction suit have been proved by their own sister who appeared not only as an advocate but also power of attorney holder having personal knowledge to all the transactions made by the plaintiffs in their sale deeds, notice of attornment so also other documentary evidence, which in my view has rightly and properly been appreciated by the first appellate court while reversing the trial court's findings under issue No. 1 which even if erroneous are not vulnerable or open to challenge before this Court in second appeal. Assuming that even if there was no evidence of the defendant on record which could be relied upon that would by itself not strengthen his case obviously because of his defence having been struck off under the rent control law. whatever the defendant deposed in his deposition which was left incomplete keeping in view back ground of the case since his defence against eviction having been struck off, cannot be taken into consideration at this stage being not open to challenge in second appeal.
30. The impugned findings arrived at by the first appellate court on issue No.1 and or other issues as well, in my view, being based on admissible evidence which is neither erroneous nor contrary to the mandatory provisions of law applicable as settled by the Apex Court, do not suffer from any serious infirmity muchless any illegality. There are no convincing assertions on behalf of the defendant either against concurrent findings or against findings of the first appellate court on issue No.1 & other ones except issue Nos. 3, 4 & 5 which in my view, do not at all warrant any interference by invoking jurisdiction of this Court under Section 100 CPC because no substantial question of law arises for consideration requiring admission to hearing and since I am satisfied that the case does not involve any substantial question of law, worth admitting this second appeal to hearing, hence no interference is called for at this stage, requirement to formulate question before deciding the same. The questions framed and proposed by the defendant appellant in memo of appeal stating them as substantial questions of law, which as opined above, are not properly formulated and which in my view cannot be held or termed as substantial muchless questions of law. Further even if the findings of fact reached try the courts below are against the weight of evidence or not, such is a question of fact because it will remain in realm of appreciation of evidence and such a question does not projecl any question of law much less any substantial question of law to upset such a finding of fact. The findings arrived at by the courts below on the issues of default, bona fide need, comparative hardship, and little of the plaintiffs or its denial, since in my considered opinion, are well sustained on record, cannot be interfered with by this Court in second appeal, because of the reason also that it is not open for this Court to reappreciate the evidence of rendering conclusion 'of facts with a view to substitute its own independent conclusion that too on the assertions made in this second appeal as referred to and analysed above. The substitution of conclusions by making an exercise by way of reappreciation of evidence would be patently erroneous approach as the same would even otherwise cannot be sustained. Thus viewed from this angle as well, I do not find any merit in any of the contentions of the appellant to invoke jurisdiction of this court under Section 100 CPC.
31. Resultantly, this second appeal is dismissed without any order as to costs. The impugned judgment of the first appellate court granting decree of eviction in favour of the plaintiffs respondents referred to in para 1 of this judgment is upheld.