Bombay High Court
Shri Manoj A.S. Dhargalkar Alias ... vs Taramati Harichandra Salgaonkar ... on 20 April, 2000
Equivalent citations: 2000(4)BOMCR508, 2001(2)MHLJ758
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
ORDER R.M.S. Khandeparkar, J.
1. Rule. By consent, rule made returnable forthwith.
2. This revision application arises from order dated 6-1-2000 passed in Civil Misc. Application No. 3/2000 in Regular Civil Suit No. 16/91 by the Civil Judge, Junior Division, at Pernem. By the impugned order the trial Court has dismissed the application dated 12-8-99 filed by the petitioners praying for a decree of the Court in favour of the petitioners on the ground that there was no need of any further trial in the suit as the issue of tenancy sought to be raised by the respondents has been finally decided against the respondents and that there is no other plea of defence raised by the respondents in the suit.
3. The undisputed facts relevant for the decision that the petitioners filed the suit against the respondents for the relief of permanent injunction to restrain the respondents and their agents from interfering in any manner in the suit property. The suit property comprises of property known as "Hondali Sorva" situated in Village Dhargalim, taluka of Pernem bearing Survey No. 260/2 and admeasuring 89,000 sq.mtrs. in area having therein different types of fruit bearing trees. The petitioners who are the owners of the suit property, have inherited the same from their father alongwith other heirs. The suit property has been registered in the record of rights in the name of the father and uncle of the petitioner No. 1. An area of 7125 sq.mtrs. of the said property was acquired by the Government for the purpose of improvement of National Highway No. 17 by issuing Notification under the Land Acquisition Act on 1-11-1983 and the entire compensation for such acquisition was paid to the owners of the suit property.
4. It is the case of the petitioners that the respondents have no right or title or interest of whatsoever nature in or to the suit property and yet they sought to disturb the possession of the petitioners on 14-2-1991 and again on 22-2-1991 and even demolished their temporary hut in the suit property and hence they were compelled to file the present suit.
5. On the other hand, it is the case of respondents that they are tenant in possession of the property over a period of last forty years and therefore there is absolutely no cause of action for filing the suit. As regards the compensation received by the owners on acquisition of an area of the suit property, it is their case that the owners had promised the respondents that the monies would be paid to them as soon as the same were received by the owners.
6. In view of the plea of tenancy, the Issue No. 2 was framed as to whether the defendants prove that they are tenants in possession of the suit property and in terms provisions of Goa, Daman and Diu Agricultural Tenancy Act, 1964 hereinafter referred to "as the said Act" the jurisdiction to decide the said issue being with the Mamlatdar, the respondents were directed to obtain the necessary declaration of tenancy in respect of the suit property from the Court of Mamlatdar. The order to that effect was passed by the Trial Court on 30-11-1991. Accordingly, the respondents filed an application before the Mamlatdar of Pernem being Case No. TNC/2/92 seeking a declaration that they were the tenants in possession of the suit property. The respondents' claim was rejected by the Mamlatdar by its judgment and order dated 8-7-1994 after holding necessary inquiry in that regard. An appeal preferred by the respondents bearing No. TNC/APL/ 10/95 was dismissed by the Deputy Collector and Sub Divisional Officer, Mapusa by its judgment and order dated 25-7-1995. The Revision application against the same bearing No. 58/96 filed by the respondents was also dismissed by the Administrative Tribunal by its judgment and order dated 8-2-1999. Consequently, the petitioners herein filed the application dated 12-8-1999 praying for a decree of the Court for permanent injunction against the respondents to restrain them from interfering in the suit property on ground that there was no need of any further trial in the suit, in view of the plea of tenancy raised by the respondents having been finally decided against the respondents, nothing remains for contest in the suit. The trial Court, however, by the impugned order has rejected the said application on the ground that the Issue No. 1 still survives and is required to be proved by the petitioners on account of specific denial in that regard by the respondents. It has also been held that the petitioners have yet to prove the possession of the suit property as well as the cause of action for filing the suit.
7. While assailing the impugned order Shri S.D. Lotlikar, the learned Advocate appearing for the petitioner submitted that the learned trial Judge has proceeded patently on wrong assumption that the petitioners have to establish the cause of action in order to show that they are entitled for permanent injunction and thereby has totally failed to appreciate that there was neither any issue nor there could be any issue on the aspect of cause of action because the specific case of the petitioner that they are owners of the suit property has neither been disputed nor the respondents have denied the acts of their interference in the suit property on 14-2-91 and 22-2-1991 which led to the filing of the suit. The only issue in respect of which the burden of proving was cast upon the petitioners was whether the petitioner prove that they are entitled for the relief of permanent injunction to restrain the respondents from interfering in the suit property and in view of the admitted position that the petitioners are admittedly owners of the suit property, the respondents are bound to be presumed to be not entitled to interfere therein, and consequently the petitioners are entitled for the relief. He further submitted that the pleading in the written statement clearly disclose the plea of tenancy and the possession in the capacity as the tenants of the petitioner in relation to the suit property. The pleadings of the respondents do not disclose any claim to the possession, of the suit property otherwise than that of tenants. Admittedly there is no plea of adverse possession. He sought to rely upon the judgment in the matter of Bhagwantrao s/o Jijaba Auti v. Ganpatrao s/o Mugaji Rout and another, .
8. Shri M.S. Sonak, learned Advocate appearing for the respondents however vehemently contesting the claim of the petitioners has submitted that although the respondents have failed to establish their claim of tenancy in relation to the suit property, the issue regarding possession still remain to be established. He further submitted that in a suit for permanent injunction, it is incumbent upon the petitioners to prove their possession of the suit property on the date of the filing of the suit, otherwise the suit is liable to be dismissed. In the case in hand, the respondents have specifically stated that they are in possession of the suit property and therefore, it is necessary for the petitioners to prove their possession before seeking the relief of injunction against the respondents. He submitted that the decision of the competent authority is on the point of character of possession and not on the factum of possession. He sought to place reliance on the decision of the Apex Court in the matter of Bruce v. Silva Raj and others, reported in 1987 (supp) Supreme Court Cases 161, in the matter of Bajan Sahib and another, , in the matter of Ratiram Pundlik Khedar v. Pundlik Arjun Khedar, , in the matter of Maravakulath Alavi v. Palarakkat Kallingal Mohammedkutty Haji and others, , in the matter of Karthiyayani Amma v. Govindan, . He further submitted that the possession of the suit property being with the respondents, the suit for injunction simpliciter itself is not maintainable and in that regard placed reliance upon the judgment in the matter of Mosque known as Masjid Shahid Ganj and others v. Shromani Gurdwara Parbandhak Committee Amritsar, reported in A.I.R. 1938 Lahore 369.
9. The impugned order discloses that the trial Court has rejected the petitioners' application wherein the petitioners had prayed for decree in the suit without requiring the petitioners to adduce any evidence in the matter. It had been rejected on the ground that the issue No. 1 still remains to be decided and the petitioner in that regard have to prove their possession of the suit property as well as the cause of action for filing the suit to be entitled for the relief of permanent injunction. It is therefore, necessary to know what the Issue No. 1 states. It reads thus :
"Whether the plaintiffs prove that they are entitled for a permanent injunction, to restrain the defendants from interfering with the suit property ?"
The said issue requires the petitioners who are the plaintiffs in the suit to prove that they, the petitioners, are entitled for a permanent injunction to restrain the respondents from interfering in the suit property. Ex-facie therefore, the said issue is purely on point of law. It speaks about the entitlement of the plaintiffs for the relief of injunction. Does the said issue require the petitioners to establish any fact? In the facts and circumstances of the case can it be said that the petitioners are not entitled to claim the relief of injunction on the basis of whatever materials available on record? Is it necessary for the petitioners to adduce any evidence relating to the factum of possession and of ownership of the suit property to obtain the relief of injunction?
10. It cannot be disputed that in a suit the plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiffs. What facts are to be established and proved by each of the parties to a suit can be known by the issue framed in the suit as well as from the pleadings of the parties in the suit. Normally, such facts are known from the issues themselves. But sometimes, either by oversight or for any other reason, the Court may omit to frame an issue on a relevant point even though the pleadings may justify framing of that issue. In that case, certainly the parties can ask for framing of an additional issue by taking recourse to Order 14 Rule 5 Code of Civil Procedure. The Court is required by Sub. Rule 5 of Rule 1 thereof to ascertain as to what material proposition of fact or of law, the parties are at variance and therefore frame the issues on which the right decision of the case appears to depend. Order 14, Rule 1 of C.P.C. provides that the issue arises when a material proposition of fact or of law is affirmed by the party and denied by the other. It further provides that the material proposition are those propositions of law or of fact which plaintiffs must allege in order to show a right to sue or a defendant must allege in order to constitute the defence, Thus the object of framing the issues is to shorten the arena of the dispute and to identify the points required to be determined. The courts are not expected to determine an issue which does not arise from the pleadings. A point alleged by the plaintiffs and admitted by the defendants cannot be said to be in issue and a decision can be given on the basis of the admission without an issue. A mere vague recital that the suit is not maintainable in law cannot give rise for framing of an issue as to the maintainability of the suit. Likewise mere assertion in the written statement that the defendants are in possession of the suit land-since long or for many years without any knowledge thereof to the plaintiffs and without claiming the right of adverse possession does not warrant framing of issue on adverse possession. The averments contained in the plaint which are not traversed in the written statement and as to which no issue has been asked for are to be deemed to be admitted. If the party intends to make a particular averment to be the subject matter of an issue in a suit, then it must be specifically denied. Mere non-admission could not warrant the Court to frame an issue in that regard. It is well established that the Court is not bound to frame issues suo moto on questions of fact where the parties do not ask for the same. The omission to raise an issue on a point implies abandonment of such point by the party. In fact, Rules 3, 4 and 5 of Order VIII of Code of Civil Procedure provides for an intergrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If the denial of a fact is not specific but evasive, then the said fact is to be taken to have been admitted. In such an event, the admission itself being proved, no other proof is necessary and the law in that regard is well settled since the decision of the Apex Court in the matter of Badat and Co. v. Eastern India Trading Co., .
11. Bearing in mind the law relevant for the matter in issue, if one peruses the issues framed in the suit, it is clear that the petitioners are required only to prove that they are entitled for the relief asked for. There is no burden cast upon the petitioner to prove any fact as such. This does not mean that the petitioners are not required to establish their case to succeed in getting the relief asked for. The case pleaded by the petitioners is that they are owners of the suit property, that they were even paid compensation for the acquisition of a portion of the suit property in the year 1983 and that the respondents tried to interfere in the suit property on 14-2-91 and 22-2-91. The pleadings of the respondents disclose that none of the said facts are denied or traversed by the respondents in any manner. This is also aparent from the issues framed whereby no burden is cast upon the petitioners to prove any of the said facts. Two specific pleas were raised, firstly being that the respondents are the tenants in possession in respect of the suit property and secondly the petitioners had promised to pay the respondents the compensation after its receipt from the Government and on those facts, two issues were framed by the trial Court.
12. It cannot be disputed that a party desiring the Court to give judgment as to any legal right or liability dependent upon the existence of facts which the party asserts, then such party prove that those facts exist. Section 101 of the Indian Evidence Act makes is abundantly clear that when the person is bound to prove the existence of any fact, it is said that the burden or proving the same lies on that person. The proof of a fact, however can be given of the fact pleaded and not otherwise. In the absence of assertion of facts in the pleadings, there can be no occasion for framing of issue and/or calling the party to prove any fact not pleaded by him. Section 103 of the Evidence Act therefore provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The occasion for the Court to believe any fact would arise, when the party desiring the Court to believe such fact, fairly pleads the said fact and establishes it with cogent evidence when disputed by the other party. The law regarding burden of proof is that the party on which the onus of proof lies must produce sufficient evidence and only then the party has the onus of rebuttal. However, burden of proof is often of a shifting character and may change from one party to the other as the facts are proved rendering the case of one party more probable than that of the other. But the evidence required to shift the burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by opposite party, but it may comprise of circumstantial evidence or on presumption of law or fact. To determine as to what facts are required to be proved and by whom and in what manner, it is necessary to ascertain with precision as to which propositions of fact or of law the parties are at variance.
13. Once it is clear that the respondents have not denied the ownership of the petitioners, applying the law that the possession follows the title, the petitioners are deemed to have established the right to enjoy the property without any interference by whomsoever including the respondents, unless the respondents are able to set out and establish better title to the suit property. Admittedly, the respondents have raised the right of tenancy in respect to the suit property. However, they have failed to establish the same. Undisputedly, apart from the right of tenancy, the respondents have not claimed any other right or interest in or to the suit property. The plea of tenancy by the respondents implies admission of ownership of the suit property in someone other than the respondents. Besides the claim of ownership of the petitioners is also not disputed. The fact of the acquisition of a portion of land of the suit property by the Government in the year 1983 as well as that of payment of the compensation for the same to the petitioners are also admitted by the respondents. Undisputedly, the respondents did not raise any objection to such payment of compensation to the petitioners. Not even a share therein was ever demanded by the respondents. The defence of the respondents that the petitioners had promised to pay the same to them is to be established by the respondents. However, the claim for such right cannot subsists in view of failure of the respondents to establish the plea of tenancy in relation to the suit property.
14. Learned Advocate Shri Sonak did submit that the respondents have also raised the defence of possession of the property with the respondents. In that regard, he also submitted that the factum of possession is different from the character of possession and merely because the respondents have failed to establish the character of possession i.e. tenancy, that by itself will not lead to the conclusion that the factum of possession in relation' to the suit property also stands proved against the respondents. According to the learned Advocate the pleadings of the respondents clearly disclose the plea of possession of the suit property with the respondents and therefore the question of decreeing the suit without recording evidence does not survive. On the other hand, the contention of the learned Advocate, Shri Lotlikar is that the plea of possession is qualified by the claim of tenancy and it is not a plea of possession simpliciter or by way of adverse possession or as settled possession of a trespasser. The plea of tenancy implies the possession and there cannot be a tenancy without possession.
15. There is no dispute that the plea of tenancy which was raised by the respondents was in terms of the provisions of law contained in the said Act. Section 2(22) of the said Act defines the expression "tenancy" to mean the relationship of landlord and tenant. The term "tenant" is defined in section 2(23) as a person who on or after the date of commencement of the said Act holds land on lease and cultivates it personally and includes a person who is deemed to be a tenant under the said Act. The word "lease" is defined in section 2(13) to mean a transfer of a right to enjoy land, made orally or in writing, for a specified of unspecified period, and in consideration of rent. The word "land" is defined in section 2(11) as land which is used for agriculture or which is capable of being so used, but is left fallow, and. includes farms buildings appurtenant to such land. Section 2(6) provides that "to cultivate" with grammatical variations and cognate expressions, means to till or husband land for the purpose of raising or improving agricultural produce, whether by manual labour or machinery, or to carry on any agricultural operation thereon. The expression "to cultivate personally" defined in sub-section (7) of section 2 means to cultivate land on one's own account by one's own labour, or by the labour of any member of one's family, or under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in on wages payable in cash or kind but not in crop share.
16. The provisions of law contained in the said Act therefore clearly show that without actual possession of a property, no person can be a tenant of the property. The person to be a tenant in relation to any property has necessarily to be in possession of the property of which the tenancy is claimed. In otherwords, the possession of the property is one of the necessary ingredients of the definition of the expression "tenant". Therefore a person claiming to be a tenant in respect of a property is necessarily required to establish the possession of such property with him. Naturally therefore, if a person claiming to be a tenant in respect of the property fails to prove his claim of tenancy, it will have to be concluded that he has failed to establish his possession in the capacity as the tenant in respect of the property of which the tenancy is claimed.
17. Perusal of pleadings as well as the issues framed in the case in hand clearly disclose that apart from claiming tenancy, there is no other defence put forth by the respondents is answer to the case pleaded by the petitioners.
The so called possession is also claimed in the capacity of a tenant in relation to the property. Apart from qualifying and characterising the possession to be that of a tenant, there is no other right or interest disclosed of pleaded by the respondents to remain in possession of the suit property. Coupled with this, there is no specific denial of the instances of interference in the suit property by the respondents on 14-2-91 and 22-2-1991. There is also no issue framed in respect of the same.
18. The contention of learned Advocate Shri Sonak as regards the difference between the character of possession and factum of possession would have been perhaps relevant if the claim of the petitioners to be the owners of the suit property was disputed or if the respondents had claimed some right to be in possession of the suit property, apart from the claim of tenancy.
Besides, as already seen above, the issue of tenancy, implies not only the character of possession but also factum of possession. In case of tenancy, both character and factum of possession are intrinsically connected with each other and are necessary in order to establish the claim. Being so, the said arguments of the learned Advocate are devoid of any substance. Besides, the contention has neither any basis nor any foundation in the pleadings of the respondents.
19. As regards various decisions relied upon by the learned Advocates, it is seen that the Apex Court in Brute's case (supra) has held that injunction can be granted in favour of a person only if he establishes possession of the property which is the subject matter of the suit and in case he fails in establishing possession therefore, relief of injunction cannot be granted. The said observation was made in the case where a suit was filed on the basis of title and possession and wherein the defence raised was of acquisition of title by adverse possession.
20. In Abdul Nabi Sahib's case (supra) the learned Single Judge of Madras High Court has held that where a property remains in possession of an agent during the subsistence of the agency, it cannot be assumed that the moment such agency is terminated, the legal possession of the property must be deemed to have passed back to the principal although the property continues to be in the enjoyment of the agent. It was further held that in a case where the dispute is between the principal and agent, the theory of constructive possession cannot help the principal to claim to be in possession of the property which is in custody of the person whose agency had been terminated prior to the filing of the suit. In a case where there was no agency whatsover subsisting on the date of the suit, the plaintiff being not in actual possession, it was held that he was not entitled for the relief of permanent injunction.
21. In Ratiram Pundlik Khedkar's case (supra) the learned Single Judge of this Court held that an application for temporary injunction in a suit for perpetual injunction proceeds on an assumption that the plaintiff on the date of the suit and on the date of making of such an application was in actual possession of the property and that his peaceful possession was being threatened. If the plaintiff is not in possession then the suit for perpetual injunction simpliciter would be untenable and in such a situation if he applies for temporary injunction not being in possession arid if the courts were to grant such a relief, then there is every possibility that such an order obtained by an ingenious and crafty plaintiff on suppression of true facts is likely to be used not as a shield to preserve and protect his possession, but verily as a warrant of possession against which the courts issuing an order of injunction must guard themsleves. It was a case relating to the matter of temporary injunction pending the suit.
22. In Maravakulath Alavi's case (supra), the Kerala High Court has held that a suit for injunction simpliciter where the plaintiff claims possession on the ground that he is a tenant is not liable to be stayed under section 125(3). The tenant even if in wrongful possession is entitled to be protected against the lawful owner by order of injunction and that is because in the suits for injunction, what is material is the fact of possession and not with the nature or the character of the possession or the capacity of the possessor. In Karthiyayani Amma's case (supra) the Kerala High Court has held that a person in possession of immovable property can sustain a suit for injunction against the rightful owner preventing him from disturbing his possession.
23. In Masjid Shahid Ganj case (supra) the Lahore High Court was dealing with a matter wherein the plaintiffs had brought a suit in the lower Court praying for a declaration that a certain parcel of land was the site of a waki mosque, and it could not be used for any purpose which, was opposed to the purposes of a mosque, and consequential relief was claimed in the form of a mandatory injunction including for the direction to re-construct the portion of the mosque which was demolised. In the alternative, the plaintiffs had claimed damages for the demolition so that they might rebuild it in its former shape. However the plaintiffs did not sue for possession. In the background of those facts and considering the contention raised, it was observed that though the plaintiffs had chosen to sue only for a declaration of their rights and certain mandatory injunctions, no satisfactory explanation was given as to why the appellants did not sue for possession. Considering the fact that the possession of the defendants being unlawful according to the allegations of the plaintiffs, the relief for possession was clearly open to them. In the circumstances, it was not open to the plaintiffs to sue for a mere declaration and injunction as they did and the suit was held to be liable to be dismissed on that count itself. It is well established that when it is open to a person to sue for possession, he cannot be granted relief in the form of an injunction.
24. Above referred decisions have no relevancy to the matter in issue. The Apex Court as well as this Court time and again, has held that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since generality of the expressions which may be found in the judgment is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. In Union of India and others v. Dhanwanti Devi and others, it has been clearly held by the Apex Court that enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. Besides, the decisions of the Kerala High Court referred to above and relied upon by the learned Advocate for the respondents do not lay down the correct law. The said proposition of law is no more a good law in view of the decision of the Apex Court in Tamil Nadu Housing Board v. A. Viswam (dead) by LRs., and Premji Ratansey Shah and others v. Union of India and others, .
25. Shri Lotlikar, however, is justified in relying upon the decision of this Court in the matter of Bhagwantrao (supra) wherein the Division Bench of this Court has held thus :
"Where there is a duty enforceable by law, whether express or implied, whether arising out of a contract or otherwise, the relief of injunction can be granted, unless considerations of expediency or convenience determine the discretion of the Court otherwise. Perpetual injunction can be granted where right exists or where right is created, or where right is cognizable by law. It can be granted to prevent the infringement of that right. When a tenant comes to the Court contending, inter alias, that he is a tenant-in-possession and that there is real threat to his possession from the defendant, who may either be a trespasser or a land owner, an injunction to protect his possession can be granted, provided the tenant establishes the alleged right of tenancy, if it is disputed. He has to prove that he is not only in possession but that his possession is referable to his tenancy right. A corresponding obligation is cast on the defendant, if he is an original owner, not to disturb the right of the plaintiff in respect of possession. A decree can be passed only when the tenancy right of the plaintiff is established in such a situation. To grant relief only on the basis of possessory title would cause injustice, may lead to multiplicity of proceedings and in some cases deprive the rightful owner of enjoyment of the property."
Thus, it has been clearly held that the relief of injunction can be granted to prevent infringement of right and a person claiming tenancy has not only to establish the factum of possession but also character of the same as that of tenant. The decision is an answer to the contentions sought to be raised by the learned Advocate for the respondents regarding the differentiation of the factum and character of possession. Besides, nobody can claim right to interfere in a property which admittedly belongs to the plaintiffs, unless such person discloses better title to be in possession of such property.
26. In the circumstances and particularly in view of absence of any dispute in relation to the right of ownership of the petitioners, the fact of receipt of compensation on acquisition of an area of the suit property in 1983 and regarding the acts of interferences by the respondents on 14-2-91 and 22-2-91, and failure on the part of the respondents to establish their claim of tenancy, clearly proves the ownership and possession of the suit property in favour of the petitioners. Therefore, the petitioners are not required to adduce any evidence as such to enable them to secure the relief to restrain the respondents from interfering in the suit property, as the latter have failed to establish their sole plea of tenancy raised by them as the defence in thee suit. In the circumstances, there was no occasion for the trial Court to arrive at the conclusion that the petitioners have yet to establish the possession and the cause of action for filing the suit. The respondents having admitted the ownership of the petitioners in respect of the suit property and having failed to establish the plea of tenancy in relation to the suit property, the Issue No. 2 and 3 stand disproved whereas the Issue No. 1 stands proved. Being so, the possession of the petitioners in relation to the suit property clearly stands established. Likewise, the cause of action for filing the suit also stands proved in view of undisputed acts of interference in the suit property on 14-2-91 and 22-2-91 by the respondents. The ownership of the suit property in favour of the petitioners having been clearly admitted and having failed in establishing their sole claim of tenancy in relation to the suit property, the respondents still expecting the petitioners to lead evidence in relation to the possession of the suit property clearly discloses the attitude of cantankerous litigants. There can be no doubt, therefore, that the trial Court has exercised its jurisdiction arbitrarily and improperly while directing the petitioners to lead the evidence in that regard. The materials on record do not justify burdening the records any further. It is not the quantity but the quality of materials that is required to decide the rights of the parties to the subject matter in dispute. The rejection of the application filed by the petition-ers, therefore is clearly in improper exercise of jurisdiction by the trial Court.
27. The petitioners are therefore, entitled for decree in the suit as asked for and the trial Court shall accordingly decree the suit.
28. The petition therefore, succeeds and is accordingly allowed, with costs. The rule is made absolute in above terms. The respondents to pay costs of Rs. 2000/- to the petitioners.
29. Petition allowed.