1. This second appeal is directed against the orders dated 31-7-1972 and 31-10-1974 passed by the 13th Civil Judge and Rent Controller, Karachi, and IInd Additional District Judge, Karachi, respectively in Rent Case No. 2914/67 and Rent Appeal No. 456/72 respectively.
2. The facts leading to the filing of the above second appeal are that late Burjori Behramgi Patel was a tenant of Shop No. 1, situated in Victoria Mansion at Victoria Road, Karachi (hereinafter referred to as the deceased tenant) of the trust known as Allo and Dinshaw Charitable Trust, of which respondents Nos. 6 to 9 are the trustees (hereinafter referred to as the trust). The present appellants are the legal heirs of the deceased tenant. The deceased tenant was running liquor business in the above shop since 1939 under the name of "Appolo Bar". However, in 1944 the above licence came to an end, thereupon late Muhammad Hussain Qazi (hereinafter referred to as the deceased sub-tenant) acquired a licence for running a Bar from the then Government of Sind and entered into an oral agreement with the deceased tenant, whereby the deceased sub-tenant appointed the deceased tenant as his manager at a fixed salary, and taken the shop as a sub- tenant from him. The above arrangement continued till 28th November, 1965 when the deceased tenant's services were dispensed with by the deceased sub-tenant. It may be observed that at the time of the termination of the above arrange--ment, the deceased tenant was receiving Rs. 350 per month as his salary and was also receiving re-imbursement of rent amounting to Rs. 133.94 monthly. The deceased tenant filed the aforesaid rent application on 18-2-1966 on the ground that the deceased sub-tenant without his permission had sub-let the sub-tenancy to the respondents Nos. 2 to 5. The above application was resisted by the deceased sub-tenant, and his sub-tenants namely, the respondents Nos. 2 to 5, who filed a joint written statement, wherein, it was alleged that the deceased sub-tenant was allotted the shop in question by the Government of Sind in 1944 for running a Liquor Bar, and that be was the statutory tenant of the said shop. It was denied that the deceased tenant was in fact the tenant of the shop after 1944. It was also averred that the deceased sub-tenant used to pay rent of the shop to the landlord on behalf of the deceased tenant directly. The relationship of landlord and tenant between the deceased tenant and the deceased sub-tenant was also denied. As regards the respondents Nos. 2 to 5, it was averred that the respondents Nos. 2 and 3 were the attorneys of the deceased sub-tenant and that respondents Nos. 4 and 5 were merely assisting the deceased sub- tenant. It may be observed that the deceased tenant expired on 19-9-1966. Whereas the deceased sub-tenant expired on 12- 11-1967. Upon the death of the former the present appellants were brought on the record as his legal heirs, whereas upon the death of the deceased sub-tenant, the present respondents Nos. 1
(a) to 1(f ) were brought on the record as his legal heirs. The learned Rent Controller framed a preliminary issue on the question of relationship between the deceased tenant and the deceased sub-tenant and by his order dated 24-2-1970 held that relationship of that of a landlord and of tenant existed between the deceased tenant and the deceased sub-tenant respectively. After that the following two more issues were framed;-- "Issue No. 1.-Whether the deceased opponent No. I assigned and sub-let his business and the shop in question without consent of deceased applicant ?
3. Issue No. 2.--.To what relief are the applicants entitled ?"
4. At the trial the deceased tenant produced as many as 6 witnesses, whereas the deceased sub- tenant examined 2 witnesses. The deceased tenant also produced voluminous documentary evidence in support of his application however, the learned Rent Controller by his aforesaid order dated 31-7-1973 dismissed the above application by holding that the deceased tenant had failed to prove sub-letting. The deceased tenant being aggrieved by the above order filed the aforesaid Rent Appeal No. 456/72, which was also dismissed by the learned IInd Additional District Judge Karachi. The legal heirs of the deceased tenant being aggrieved by the above two orders filed the present second appeal.
5. (2)(a) In support of the above appeal it has been urged by Mr. Rehmatoola that the finding of the two Courts below is perverse and contrary to the record inasmuch as both the Courts below misread the evidence, and, therefore, the two judgments/orders under appeal are liable to be set aside, whereas it was urged by Mr. Aziz Khan, learned counsel for the legal heirs of the deceased sub-tenant that the finding of the two Courts below cannot be said to be perverse or contrary to the record and that even if it is to be held that the view found favour by the two Courts below is erroneous or is based on mis-appreciation of evidence, the same cannot be interfered with in a second appeal.
6. In order to appreciate the respective contentions of the parties, it will be necessary to refer to the defence raised by the respondents Nos. 1 to 5 in their written statement particularly paragraphs 5 and 6 of the written statement, which read as follows;-- "(5) Paragraph No. 5 is not admitted as it stands. This Opponent No. 1 is the tenant of the premises in question and its furniture and fittings belongs to this Opponent No. 1. The deceased applicant was not its tenant and the question therefore of terminating the alleged agreement by him does not arise at all. It is denied that the Opponent No. 1 has sublet the premises in question as alleged to these Opponents Nos. 2 to 5 and the whole story is fabricated and false and denied. The Opponents Nos. 2 and 3 are the attorneys of the Opponent No. 1 and Opponents Nos. 4 and 5 only assist the Opponent No. 1 in his business. The Opponents No. 2 to 5 have no concern with tenancy right or any right in the said business premises of the Opponent No. 1. The Opponent No. 1 has neither assigned or sublet as alleged in paragraph No. 5 the Shop premises to Opponents Nos. 2 to 5 and all allegations in this connection are false and denied. There was no agreement between the deceased and with Opponent No. 1 as alleged and as such the question of its termination does not arise.
7. The rest of paragraph No. 5 is denied and the applicants are put to the strict proof of the same.
(6) Paragraph No. 6 is denied. It is denied that the deceased applicant was the tenant o f the shop under reference, the tenancy rights of the same are exclusively enjoyed by the Opponent No. 1. It is denied that any relation of the landlord and tenant exist between the deceased applicant and the Opponent No. 1. The Opponent No. 1 being the statutory tenant of the premises in question cannot in law be ejected from the premises in question."
8. It may be noticed that the plea taken by the respondents Nos. 1 to 5 was that in fact the deceased sub-tenant was the tenant of the shop and not the deceased tenant. It may also be noticed that it was also averred that the respondents Nos. 2 and 3 were the attorneys of the deceased sub- tenant and that the respondents Nos. 4 and 5 only were assisting the deceased sub-tenant in his business, and that the respondents Nos. 2 to 5 had no concern with the tenancy rights or any rights in the said business premises of the respondent No. 1 i.e. the deceased sub-tenant. It was also averred that the deceased sub-tenant had neither assigned nor sub-let the shop to the respondents Nos. 2 to 5. In other words, there was complete denial by the respondents Nos. 2 to 5 of having any interest in the business in the tenancy rights of the shop.
(b) Mr. J. H. Rehmatoola has referred to the following documents in support of his above contention apart from the ocular testimony, Exhs. 3/1 to 3/5 and Exhs. 13 to 18, being rent receipts issued by the- Trust in favour of the deceased tenant. Exhs. 2/1 to 2/22 being the cheques towards the rent issued by the deceased tenant towards the rent in favour of the trust. Exhs. 4/3 being the certificate dated 6-1-1966 issued by the trust that the deceased tenant was the tenant of the shop in question for Rs. 133.94. The above documents inter alia established the tenancy in favour of the deceased tenant from the trust. Mr. Aziz Khan learned counsel for the respondents have not disputed the correctness of the above documents or the finding of the rent controller that there was relationship of a landlord and of a tenant between the deceased tenant and the deceased sub-tenant respectively.
(c) The only issue which was urged before me by the learned counsel for the parties was as to whether the finding of the two Courts below on the question of sub-letting can be sustained. In this regard Mr. J. H. Rehmatoola has invited my attention to the following documents "(i) An order of the Assistant Registrar Co-operative Society (Recoveries) Karachi dated 3-10-1967 attaching the lease money etc. At Rs. 1,000 payable to the deceased sub-tenant to the extent of Rs.
9. 29,639'97 in hand of Messrs Victoria Refreshment Room and Bar, Victoria Road, Karachi.
(ii) Exh. 7/1 being the statements of Account No. 130050130 maintained by Mrs. Zubeda Muhammad Hussain Qazi, one of the legal heirs of the deceased subtenant I.e. Respondent No. 1(e) with Messrs National and Grindlays Bank Ltd., Dundas Street, Karachi, indicating the clearance of 19 cheques received by her from Messrs Victoria Refresh--ment Room and Bar.
(iii) Exh. 7/2 being a certificate dated 7-11-1970 issued by Messrs Commerce Bank Ltd. Certifying that 1.9 cheques mentioned therein drawn by Messrs Victoria Refreshment Room and Bar front (C/A 1243) maintained with them in favour of Mrs. Zubeda Muhammad Hussain Qazi were presented to them in clearing by Messrs National and Grindlays Bank Ltd., Saddar Branch, Karachi.
(iv) Exhs. 8/1 to 8/40 being 40 cheques drawn by Messrs Victoria Refreshment Room and Bar from their account with Messrs Commerce Bank Ltd. In favour of Qazi Muhammad Hussain during the period from 3-4-1967 till 2-10-1968.
(v) Exh. 8/41 being the photostat copy of the opening, account from with Messrs Commerce Bank Ltd., Victoria Road Branch by Messrs Victoria Refreshment Room and Bar on 1-12-1965 showing the respondents Nos. 2 to 5 as the partners of the aforesaid firm.
(vi) Exh. 8/42 being the specimen signatures of the respondents Nos. 2 to 4 for the purpose of opening of the aforesaid account.
(vii) Exh. 8/43 being the partnership letter signed by the respondents Nos. 2 to 5 on behalf of Messrs Victoria Refreshment Room and Bar in favour of Messrs Commerce Bank Ltd.
(viii) Exh. 8/44 being the statement of account in respect of Account No. 1241 of Messrs Victoria Refreshment Room and Bar, Victoria Mension, Victoria Road, Karachi, indicating as may as following 83 payments to the sub-tenant and after that to Mrs. Zubeda Muhammad Hussain Kazi and also to the Deputy Registrar Co-operative Society in pursuance of the above attachment order referred to hereinabove in paragraph 2(C)(i).
10. "Date Particulars Cheque No. Withdrawals 6th December, To M. Husain Kazi5351761750 1965.
11. 24th December, To Clg. Muhammad535180 2000 1965. Husain.
12. 4th May, 1966 To M. H. Kazi95500 4th June, 1966 To M. Hosain540377500 21st July, 1966 To Mohammad Kazi540392500 6th August, 1966 To M. Husain Kazi399500 Std October, To Muhammad Husain5741081500 1966.
13. 9th November, To Muhammad Hussain574106150(1 1966.
14. 5th December, To Muhammad Husain5741211500 1966. Kazi.
15. 18thJ anuary, To Kazi Muhammad31500 1967. Husain.
16. 21st January, To Kazi Muhammad574132250 1967. Husain.
17. 6tb February, To Kazi Mohammad5741341500 1967:Husain.
18. 2nd March, 1967To Kazi Muhammad574146250 Husain.
19. 2nd Marcb, 1967 To Kazi Muhammad47250 Husain.
20. 3rd April, 1967 To Kazi Muhammad574153133.94 Husain.
21. 4th April, -1967 To Kazi Muhammad5741511500 Husain.
22. 2nd May, 1967 To Kazi Muhammad574160133.94 Husain.
23. 3rd May, 1967 To Kazi Muhammad1500 Husain.
24. 18th May, 1967 To Kazi Muhammad64500 Husain.
25. 3rd June, 1967 To 1st Clg.66133.94 27th June, 1967 To Kazi Muhammad721500 Husain.
26. 6th July, 1967 To Kazi Muhammad133.94 Husain.
27. 12th July, 1967 To Kazi Muhammad500 Husain.
28. 12th July, 1967 To Kazi Muhammad1000 Husain.
29. 7th August, 1967 To Kazi Muhammad5751841500 Husain.
30. 7th August, 1967 To Kazi Muhammad85133.94 Husain.
31. 5 September, To Kazi Muhammad574191134.94 1967. Husain.
32. 5th September, To Kazi Muhammad921500 1967. Husain.
33. 11th October, 1967 To Kazi Muhammad03133.94 Husain.
34. 11th October, 1967 To Kazi Muhammad02500 Husain. l Ith October, 1967 To Kazi Muhammad06500 Husain.
35. 13tb November, To Kazi Muhammad586416133.94 1967. Husain.
36. 13th November, To Kazi Muhammad17500 1967. Husain.
37. 13th November, To Kazi Muhammad18500 1967 .Husain.
38. 12th December To A. Iman21133.94 1967.
39. 14 December, To Zubeida231000 1967.
40. 19th December, To Deputy Registrar22500 1967.
41. 10th January,Cash586427133.94 1968.
42. 7th February,Cash438133.94 1968.
43. 6th March, 1968Cash441133.94 12th April, 1968Cash451133.94 7th May, 1968 To Miss Zubeida457133.94 7th May, 1968 To Miss Zubeida4581000 18th May, 1968 To Deputy Registrar456500 6th June, 1968 Cash 468133.94 15th June, 1968 To Deputy Registrar Co-467 500 operative Society.
44. 4th July, 1968 To Miss Zubeida Kazi4731000 4th July, 1968 To Miss Zubeida Kazi472133.94 31st July, 1968 To Deputy RegistrarCo-474500 operative.
45. 6th August, 1968 To Zubeida H. Kazi4801000th th 6th August, 1968 To Zubeida H. Kazi482133.94 12th August, 1968 To Deputy Registrar Co-481500 operative.
46. 7th - September, To Z. H. Kazi1000 1968.
47. 7th September ,To Z. H. Kazi491133.94 1968.
48. 26th September, To Deputy Registrar Co-490500 1968. Operative Society.
49. 5th October, 1968To Z H. Kazi5001000 5th October, 1968 To Z. H. Kazi827101133.94 5th October, 1968 To Z. H. Kazi133.94 5th October, 1968 To Z. H. Kazi1000 11thNovember, To Z. H. Kazi1085412 1968.
50. 25th November, To Deputy Registrar, Co-107500 1968 operative.
51. 25th November, To Deputy Registrar, Co-106500 1968. Operative.
52. 12thDecember,Cheque112133.94 1968.
53. 7th January, 1969Cheque117133.94 12thFebruary,Cheque130133.94 1969.
54. 5th March, 1969Cheque136133.94 4th April, 1969 C18.143133.94 2nd May, 1969 Cheque156133.94 5th June, 1969 Cheque167133.94 9th July, 1.969 Cheque Clg.174133.94 5th August, 1969 Cheque Cig .182133.94 3rd September,Cheque190133.94 1969.
55. 3rd October, 1969Cheque200133.94 7th November,Cheque587133.94 1969.
56. 13th January, Cheque Clg .6001133.94 1970.
57. 13th January,Cheque Clg .6002133.94 1970.
58. 3rd February, Cheque Cig .133.94 1970.
59. 11th March, 1970Cheque19133.94 6th April, 1970Cheque30133.94 7th May, 1970Cheque36133.94 4th June, 1970 Cheque Clg.45133.94 11th July, 1970 Cheque Clg.57133.94 4th August, 1970 Cheque Clg .64133.94
(ix) Exh. 27 being the certified copy of the register the firm indicating that the firm under name and style of B. S. Irani and Company was formed by the respondents Nos. 2 to 5 with effect from 12-11- 1968, the business "of which was c/o Messrs Victoria Refreshment Room and Bar in the shop in question."
(d) The above documents clearly belie the averment of the respondents Nos. 1 to 5 in their written statement inter alia in the aforesaid above-quoted paragraphs 5 and 6 that they had no concern with the business of Messrs Victoria Refreshment Room and Bar and that the respondents Nos. 2 and 3 were acting as merely as the attorneys, and the respondents Nos. 4 and 5 were assisting the deceased sub-tenant or his daughter Mrs. Zubeida Muhammad Hussain Kazi after his death. The above bank opening account firm, specimen signatures of the partners i.e. Of the respondents Nos.
60. 2 to 4, and their partnership authority letter referred to hereinabove in paragraphs 2(c) (v) (vi) and
(vii) Exhs. 8/41 to 8/43 indicate that the respondents Nos. 2 to .5 were not merely acting as the attorneys or merely assisting the deceased sub-tenant or his daughter but in fact they were running Messrs Victoria Refreshment Room and Bar as the partners in the shop in question.
61. Furthermore, the payments made by the respondents Nos. 2 to 5 were not confined towards the monthly rent to the deceased sub-tenant and to his daughter, namely, Rs. 133.94, but also included some additional amounts in consideration of sub-letting of the shop, the deceased sub-tenant was getting consideration in the form of rent as well as additional amount from time to time from the respondents Nos. 2 to 5. The respondent No. 4 appeared as a witness before the Rent Controller and in his deposition he completely denied having any interest either in the business of Messrs Victoria Refreshment Room and Bar or in the shop in dispute Mr. J. H. Rehmatoola has invited my attention to the appellant's statement dated 10-12-1970 filed before the learned Rent Controller pointing out that in spite of the service of the summon for appearing as a witness for the appellants and for production of account books etc. The respondent No. 4 did not appear. It has been vehemently urged by Mr. J. H. Rehmatoola that it was for the respondents Nos. 2 to 5 to explain as to how they had made the above payments to the deceased sub-tenant and after his death to his daughter, which they had failed to explain, in--asmuch as the respondent No. 4 failed to appear as appellants' witness. It has been further urged by him that on the state of the evidence on the record no inference other than that of that in fact the deceased sub-tenant had sub-let the premises to the respondents Nos. 2 to 5, could have been drawn. In support of the above contention Mr. J. H. Rehmatoola has referred to paragraph 103 from Phipson on Evidence, 11th Edition, the case of Shivabasva Kom Amingavda v. Sangappa Bin Amingavda (31 1 A 154), the case of Messrs Friends Cloths Store and another v. Mst. Sayeda Amtul Aziz PLD 1971 Kar. 739) and the case of Mst. Bibi Jan v. Habib Khan and another (PLD 1975 SC-295). On the other hand Mr. Abdul Aziz Khan in support of his aforesaid contention that this Court cannot interfere with the concurrent finding even if it is erroneous or is based on misappreciation of the evidence etc. Has referred to the case of Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38and the case of Keramat Ali and another v. Muhammad Younus Haji (PLD 1963 SC 191).
62. (3)(a) It may be advantageous to reproduce the relevant portion of the above paragraph 103 from the Phipson on Evidence, 11th Edition, which reads as follows; So in ejectment for under letting without a licence proof of the under letting is on the lessor, but if he shows that some one other than the lessee is in possession, apparently as tenant, the onus is shifted to the lessee to show that the occupier is not such . . . . ."
(b) With reference to the above Indian Appeals case, it will suffice to observe that the Privy Council in the aforesaid case has held that the High Court in a second appeal can set aside the orders of the two Courts below, if the same are based upon a case not made out by the parties, to which the evidence had not been directed and that there was no evidence on which the finding could have been given.
(c) Reverting to PLD 1971 Kar. 739, it may be stated that it was held by a learned Single Judge that the rule that a concurrent finding of fact given by the Courts below cannot be disturbed in a second appeal cannot be pressed into service, if the same is based on misinterpretation of documents, misreading of evidence, misstatement of fact, ignoring or rejecting on flimsy ground the documents produced and that in such cases, the High Court is competent to set aside the concurrent finding in a second appeal.
(d) Whereas in the above 1975 SC case, it was reiterated that the concurrent finding of fact in a second appeal can be set aside if it is based on misreading or misinterpretation of evidence or incorrect inference on the admitted evidence.
63. (4)(a) The extract from the above well-known book on the law of evidence supports Mr. J. H.
64. Rehmatoola's contention that once a landlord proves that some one else is in occupation of the rented premises- in place of his tenant, prima facie in the capacity of a tenant burden of proof shifts on the tenant to explain the status/position of the 3rd person. Furthermore, the above Privy Council, the Supreme Court, and the Karachi cases also support, the learned counsel for the appellants inasmuch as it has been laid down that a Court cannot set up a new case for a party not pleaded in the pleadings and that in case of misreading or misinterpreting of evidence or ignoring of the same or rejecting the same on a flimsy ground, the High Court can interfere with the concurrent finding in a second appeal. In the present case there is no doubt that both the Courts below misread the documents brought on the record and/or ignored the same without any justification. Furthermore, a new case was set up for the respondents Nos. 1 to 5 inasmuch as it has been observed that the payments made by the respondents Nos. 2 to 5 to the deceased tenant, and thereafter, to his daughter Mrs. Zubeida Muhammad Husain Kazi does not prove sub-letting, as the above payments might have been made towards profits. It may be pertinent to mention that it was not pleaded by the respondents Nos. I to 5 that there was any arrangement similar to that of a partnership. The case pleaded by the respondent was that the respondents Nos. 2 and 3 were the attorneys, whereas respondents Nos. 4 and 5 were merely assisting the deceased sub-tenant, and, thereafter to his daughter. Even the two witnesses who appeared for the above respondents maintained- the above stand in their testimony and did not come out with the plea that there was any partnership between the deceased sub-tenant and the respondents Nos. 2 to 5. In the absence of any such plea having raised in the written statement by the respondents Nos. 1 to 5, and in the absence of any evidence on record in support of such a plea, it was not open to the two Courts below to proceed with the case on surmises and conjectures. . (b) It may be observed that the deceased tenant as far as back as on 24-12-1965 in his legal notice sent through his Advocate Exh. P/12 pointed out to the deceased sub-tenant and to the respondents Nos. 2 to 5 that in or end of November, 1965, the deceased sub-tenant without his consent assigned and sublet the business and the shop premises, the furniture and fittings belonging to the deceased. The deceased sub-tenant had replied to the above notice through his advocate's letter dated 4th January, 1966 Exh. D/2, and came out with the plea that he was the sole proprietor of Messrs Victoria Refreshment Room and Bar and that he was the tenant of the shop and not the deceased tenant. It was also alleged that the deceased tenant had no right or interest in the shop in question since 1944. It may be observed that the deceased sub-tenant in his aforesaid reply did not aver that he had appointed the respondents Nos. 2 and 3 as his attorneys or that the respondents Nos. 4 and 5 were assisting him. He even did not admit the fact that he was the sub-tenant of the deceased tenant. The above pleas were reproduced in the written statement to the rent application for ejectment in question filed by the deceased tenant. In this state of the pleadings, the two Courts below could not have set up a case of partnership between the deceased sub-tenant and the respondents Nos. 2 to 5.
65. (5)(a) Reverting to the contention of Mr. Aziz Khan learned counsel for the respondents that this Court in a second appeal cannot interfere with the concurrent finding of the two Courts below even if it may be erroneous or may be based on misappreciation of evidence, it may be observed that by now it is a well-settled principle of law that if a concurrent finding of fact of the two Courts below is perverse, or contrary to the record or is based on misreading of documents or misinterpretation of the such documents of total ignorance or rejection of such documents on a flimsy ground, the High Court can interfere with such a concurrent finding in a second appeal.
(b) As regard the two cases cited by the learned counsel for the respon--dents, it may be observed that in the aforesaid 1955 F. C. The brief facts were that one Khalil Ahmed filed a suit for declaration that the 3 sales effected by his father while he was a minor were not binding on him as the land was ancestral, which was alienated without any legal necessity. The above suit was dismissed by the subordinate Judge on 25th July 1945 and an appeal against the above judgment/decree to the District Judge also failed on 13th February, 1946. However, upon a second appeal a Division Bench of the Lahore High Court had set aside the decree of the two Courts below only to the extent of Rs. 2,640. There was sufficient evidence on the record to maintain the conclusion arrived at by the two Courts below and in context with the above facts, it was held by the Federal Court that the High Court had no jurisdiction to entertain a second appeal on the ground of an erroneous finding of facts, however, gross and in excuseable error may seem to be unless there is an error in the procedure provided by law resulting in an error or defect in the decision of the case on the merits. It was further held that a fallacy in appraising the evidence as to a fact unless it amounts to material mistaken assumption is merely an error in coming to a finding as to that fact, and, therefore, does not warrant interference in a second appeal.
(c) With reference to 1963 SC that it will suffice to observe that in the above case, it was held that the High Court has no jurisdiction to reverse the finding of fact in second appeal by going into question of weight to be attached to a particular item of evidence.
66. In my view the facts of the above two cases are distinguishable from the instant case inasmuch as no misreading of documents or rejection of documents' on filmsy ground or a finding contrary to the record or setting up of a new case for a defendant was involved in the aforesaid two cases. In the instant case the two Courts below have failed to take into consideration, the material documents on the record and/or have ignored the same. A new case for the respondents not pleaded by them has found favour with the two Courts below. The finding arrived at is contrary to the record.
6. The upshot of the above discussion is that I allow the above appeal, set aside the orders and direct the respondents Nos. 1 to 5 to hand over the possession of the shop in question as prayed for, but there will be no order as to costs. However, 1 grant 4 months time to the respondents Nos. 1 to 5 from today to vacate the shop.