JUDGMENT

Agarwal, J - This is a second appeal against a decree of the civil Judge of Unao setting aside the decree of the Munsif, South Unao. Purbi Din was a statutory tenant of the plots in dispute. He died in 1930 leaving a minor son Mukta, the appellant in this appeal. On 28th October 1936, the landlord Swami Din, respondent 2, issued a notice of ejectment against Mukta. It was served on his guardian on 14th November 1986. On 7th June 1937, the landlord applied for the assistance of the Court under Section 60, Oudh Rent Act. He also obtained possession on 28th June 1937. On 29th June 1937, he let out the plots to respondent 1 Ham Tek. On 29th September 1937, Mukta obtained formal possession of the plots through Court. Ram Tek, the lessee from the landlord instituted the suit which has given rise to this appeal on 1st November 1937, in which he claimed a declaration that he was the tenant of the plots in suit and that an injunction be Issued to Mukta to restrain him from interfering with his possession. The suit was contested by. Mukta and he pleaded that he had not been validly ejected from the plots and was a tenant of those plots. He claimed damages for his wrongful dispossession. The learned Munsif dismissed the suit as regards the plots now in dispute and also awarded damages to the defendant. The plaintiff appealed and the appellate Court held that no damages could be awarded in this suit to the defendant and that Mukta had been validly ejected and therefore the landlord Swami Din was entitled to lease them to the plaintiff, Ram Tek. He accordingly decreed the suit. Mukta has come up in second appeal and the only point in question in this appeal is whether Mukta is a tenant of the plots in question. It is proved that notice of ejectment was served on the guardian of the appellant on 14th November 1936. Section 60(1), Oudh Rent Act, provides:

If the landlord requires assistance to eject tenant on whom he alleges a notice to have been served under Section 55, he may apply for that assistance to the Court which would have had jurisdiction with respect to a suit by the tenant to contest his liability to be ejected under the notice, and that Court shall order the ejectment of the tenant if it is satisfied; (a) that a notice of ejectment was duly served on the tenant, (b) that the tenant has not brought a suit to contest the notice, or that, if a suit for that purpose has been brought, it has been determined adversely to the tenant; (c) that the tenant has not been authorized by the landlord in writing to continue to occupy the land.

2. The application under this section by the landlord was made on 7th June 1937. An order was passed on 25th June 1937 that a warrant for the delivery of possession be issued on the responsibility of the, applicant. This warrant was issued and possession was awarded to the landlord on 28th June 1937. There is an order dated 21st July 1937: "Defendant absent. Assistance refused." It therefore appears that the application under Section 60 was refused. On 25th August 1937, an order was passed that Mukta be again put in possession and he actually got pos-session through Court on 29th September 1937. It appears that possession was ordered to be given to the landlord on 25th June on his responsibility. I interpret that order to mean that as the application under Section 60 had not been decided so the Court ordered that the landlord could get possession subject to the result of the application. Under Section 63, Oudh Rent Act, possession could be awarded to the landlord only in the month of June. This interpretation finds support from the fact that the Court ordered the tenant to be put in possession again on 25th August 1937. If assistance was refused on the ground that the landlord had already obtained possession, the Court could not order that the tenant be again put in possession. I am therefore of opinion that the landlord, obtaining possession on 28th June 1937 in pursuance of the order dated 25t