Madhya Pradesh High Court
Sardar Harbans Singh vs Shailesh Chand Gupta on 19 August, 2000
Equivalent citations: 2001(1)MPHT501, 2001 A I H C 916, (2001) 1 RENCJ 524, (2001) 1 RENCR 524, (2001) 3 RECCIVR 64
ORDER S.C. Pandey, J.
1. This is a first appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 29-7-1991 passed by Additional District Judge, Mancndragarh in Civil Suit No. 13-A/88, whereby the appellant defendant has been ordered to be evicted from the suit shop under Sections 12 (1) (c) and 12 (1) (f) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'). The decree under Section 12 (1) (a) of the Act has not been granted by the Trial Court on the ground that the rent has been deposited by the appellant-defendant in the Trial Court in accordance with law.
2. The respondent-plaintiff filed Civil Suit No. 13-A/88 against the appellant-defendant on the ground that the appellant was initially a tenant of Manoharlal Gupta who had let out the suit shop to the appellant at the rate of Rs. 100/- per month. The tenancy was monthly and started from the first of every month and was liable to be terminated on the last day of the month. Thereafter, it was claimed that on 5-10-1984, Manoharlal Gupta transferred the suit shop to the respondent by a registered partition-deed. Accordingly, the respondent Shailesh Chand Gupla son of Manoharlal Gupta claimed to have became the landlord of the appellant Sardar Harbans Singh. On 22-2-1985, the respondent served a notice on the appellant by registered post to the effect that he had become the landlord by virtue of the registered partition-deed. Thereafter, on 9-4-1988, the respondent served a registered notice to the appellant claiming that he was entitled to receive rent from the appellant between the period 5-10-1984 to 31-3-1988 and it was also claimed that the suit shop is liable to be vacated by 1-6-1988. The appellant gave a reply dated 16-5-1988 to the respondent but did not accept the respondent to be the landlord. Nor did he pay him the arrears of rent between the period from 5-10-1984 to 31-3-1988. The respondent, therefore, filed the suit claiming to be the landlord on the foundation of the registered partition-deed dated 5-10-1984 between him and his father and claimed that since the appellant had denied and has not accepted the respondent to be the landlord, he was liable to be evicted under Section 12 (1) (c) of the Act. The second ground for eviction was under Section 12 (1) (a) of the Act for nonpayment of arrears of rent within two months of receipt of demand notice dated 9-4-1988. The third ground for eviction was under Section 12 (1). (f) of the Act claiming that the respondent required the suit shop bong fide for his show-room for sale of Almirahs of Steel, Cooler and furniture etc. which he was manufacturing at Manendragarh. It was stated that at the time of filjng of the plaint the respondent was using another shop belonging to his father which he was liable to vacate in due course. The respondent further stated in his plaint that he has no alternative accommodation of his own except, the suit shop and, therefore, the appellant was liable to be evicted under Section 12 (1) (f) of the Act. A further claim was made for arrears of rent amounting to Rs. 3,600/- and a claim of Rs. 14,215/- by way of damages was also made.
3. The appellant controverted the allegations made in the plaint and stated that there was no real partition between the respondent and his father Manoharlal Gupta and the partition-deed dated 5-10-1984 was a sham docu-
ment and was totally illegal. It was asserted that despite the execution of the registered partition-deed dated 5-10-1984, the respondent was not conferred with the title on the ownership of the suit property and, therefore, he did not step into the shoes of his father and became the landlord of the appellant. He claimed that Manoharlal Gupta is still his landlord. It was claimed that the appellant was ready to pay MI the rent to Manoharlal Gupta and did not acknowledge the respondent to be his sole landlord. It was further claimed that there was no bona fide requirement of the suit property.
4. The Trial Court, having granted the decree under Sections 12 (1). (c) and 12 (1) (f) of the Act and the arrears of rent amounting to Rs. 3,600/-, this appeal has been filed by the appellant defendant challenging the entire decree of the Trial Court including the decree passed for the arrears of rent. During the pendency of the appeal, an application under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellant and a copy of the plaint filed by Manbharlal Gupta against the State of M.P. was filed. It appears that a civil suit has been filed by Manoharlal Gupta against the State Government claiming permanent injunction in respect of area 1.34 x 35 feet in plot No. 33 situate at Manendragarh. It has, also alleged in the plaint that on this plot, Manbharlal Gupta had a two storied house which was constructed before the year 1965.
5. A reply has been filed to that application under Order 41 Rule 27 of the Code of Civil Procedure. A copy of the reply shows that the respondent had admitted that the suit against the State Government has been filed in respect of the encroachment enuring to the benefit of the allottee and also to the benefit of Manoharlal Gupta. In view of this matter, it was urged that the reply under Order 41 Rule 27 of the Code of Civil Procedure does not affect in any manner the rights of the parties in the suit.
6. Learned counsel for both the parties were heard in this case. In the opinion of this Court, the reply under Order 41 Rule 27 of the Code of Civil Procedure is not an answer to the question raised in the suit and application under Order 41 Rule 27 of the Code of Civil Procedure cannot be allowed. Merely because Manoharlal Gupta filed a civil suit against the State Government claiming plot No. 33 in Manendragarh to be his own, it cannot be said that this document can be utilised by the appellant in the suit for proving that the partition-deed was a sham document. Firstly, the respondent would not be bound by any statement made by his father in his plaint against the State Government. This document is also not required by the Court for deciding the controversy and, therefore, this document is not accepted for the purpose of deciding this first appeal.
7. In order to appreciate the controversy between the parties, it is necessary to decide whether the appellant could take-up a defence to the effect that the respondent is not his landlord and mere fact that he took-up the plea that the respondent is not his landlord as he had not acquired a title to the suit property by partition-deed, the respondent could get a decree under Section 12 (1) (c) of the Act.
8. Firstly, the respondent is claiming that he is the exclusive landlord by way of derivative title. It means that the respondent derived his title from the original landlord Manoharlal Gupta. In such a case, the appellant-tenant could plead that there was no title conferred upon the appellant. He may be entitled to say so if a landlord bases his claim for his status merely on the foundation of his derivative title. The estoppel under Section 116 of the Evidence Act does not come into play because he is not denying the title of the landlord who let him in. In case, the tenant may have paid rent to a transferee landlord, then he could not deny his title under Section 115 of the Evidence Act. If the tenant did not pay rent to the aforesaid landlord or did not recognise him as his landlord from the very inception then he is not denying the title of the landlord. He, in fact, is saying that there is no relationship of landlord and tenant. In such a case where there is a denial and non-acceptance of relationship of landlord and tenant, the landlord has to prove the relationship of landlord and tenant existed by express or implied agreement between the parties. Where the subsequent landlord claims derivative title that the original landlord had transferred his little in his favour, he steps into the shoes of the original landlord by operation of Section 109 of the Transfer of Property Act. If this be the plea of the landlord, claiming derivative title, then a defence is available to the tenant, who denies the relationship of landlord and tenant, to say that the subsequent landlord has not derived his title from the original landlord. In other words, the tenant says that the original tenancy subsists. The question that arises is, whether in such cases, denial of title of the transferree is covered by Section 12 (1) (c) of the M.P. Accommodation Control Act, 1961 (for short 'the Act'). For the purpose of decision of this case, Section 12 (1) (c) of the Act is referred hereunder :--
"Section 12 (1) (c) : that the tenant or any person residing with him has created a nuisance or has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the accommodation, or which is likely to affect adversely and substantially the interest of the landlord therein :
Provided that the use by a tenant of a portion of the accommodation as his office shall not be deemed to be an act inconsistent with the purpose for which he was admitted to the tenancy."
By denying the title of a landlord, a tenant is supposed to have done any act which is inconsistent with the purpose for he was admitted to the tenancy of the accommodation or which is likely to affect adversely and substantially the interest of the landlord. Obviously, non-payment of rent on the ground that a person is not the landlord of the tenant is likely to affect the interest of the landlord adversely or substantially, therefore, denial of title is ordinarily covered under Section 12 (1) (c) of the Act. The question however becomes difficult when the tenant says that he is not the tenant of the landlord claiming new relationship of landlord and tenant on the basis of the derivative title. In such a case, if the Court holds that the sweep of the language of Section 12 (1) (c) of the Act covers the latter too then it would deny to the tenant the right of raising an important defence i.e., his right to say that he is not the tenant of the new transferee landlord as alleged by that landlord but continues to be tenant of the old landlord. Since the tenant entered the premises at the instance of the original landlord or paid rent to him or acknowledged his title otherwise, he owes an obligation to the first to maintain that relationship. He cannot be compelled to succumb to new relationship unless he himself does so voluntarily or at the instance of the previous landlord. Of course, he can bind himself by agreeing to accept the new relationship by atlornmenl, acknowledgment or payment of rent. In such contingency, he may be estopped by operation of Section 115 of the Evidence Act. Such estoppel is traceable to estoppel by conduct. The view of this Court is based on the view taken in the decision in the case of Kumar Krishna Prasad Lal Singha Deo Vs. Baraboni Coal Concern Ltd. and others, reported in AIR 1937 PC 251. The Judicial Committee observed in that case, as follows :--
"Whether during the currency of a term of the tenant by attornment to A who claims to have the reversion, or the landlord by acceptance of rent from B who claims to be entitled to the term is estopped from disputing the claim which he has once admitted are important questions, but they are instances of cases which are outside Section 116 altogether; and it may well be that as in English law the estoppel in such cases proceeds upon somewhat different grounds and is no wholly identical in character and in completeness which the case covered by the section."
This case has been followed in several cases including the case of Raghvendra Singh and others Vs. Marhu Basant and another, reported in 1971 MPLJ 4 by the Division Bench of this Court and the Supreme Court in the case of Subhash Chandra Vs. Mohammad Sharif and others, reported in 1990 JLJ 209. In the opinion of this Court, Section 12 (1) (c) of the Act will not be attracted to the aforesaid defence. The tenant in effect is saying that the derivative title holder is not his true landlord by operation of Section 109 of the Transfer of Property Act. In fact, Section 109(ibid) did not apply. For the aforesaid reason, he is not willing to attorn to or acknowledge the title of new landlord or pay rent to him. This may be a basic defence in a case of landlord and tenant. The tenant is entitled to say that there is no relationship of landlord and tenant. To such a case, Section 12 (1) (c) of the Act would not apply provided in fact there is no relationship of landlord and tenant and there be bonafide dispute or doubt that the new claimant had not acquired the title from the original landlord. If there be a doubt, then Section 12 (1) (c) of the Act would not be attracted even if the tenant in order to protect his interest had made a claim which in retrospect appears to be made with an ulterior motive of delaying the trial. If there be disputed facts for which full trial is necessary, the Court cannot throw out the defence on the ground that prima fade it appears to be faise or frivolous. This Court is firmly of the view that any other view of the matter may deprive the tenant of his valuable defence.
9. Here it may be remembered that Section 12 (1) (c) of the Act on its own terms does not say in so many words that the denial of title of the landlord shall furnish a ground for eviction. What is said is that the denial of title is an act "which is likely affect adversely and substantially the interest of the landlord". However, the right to deny the derivative title of a person who is stranger to the contract of tenancy cannot be held to be covered by those words. It is the landlord who comes to the Court with a plea that he became the landlord by virtue of the operation of Statute having purchased the let out accommodation. By denying these facts the tenant is challenging the very basic fact on which the landlord founded his right to file the suit. To say that the tenant cannot challenge the elementary fact because of language of Section 12 (1) (c) of the Act would be doing violence to the language. In the opinion of this Court, it would be too much to say the interest of the subsequent landlord is affected by such denial. The interest of such landlord is not at all adversely affected because he has not proved it that he is the landlord. There is no question of affecting his substantial interest as he is required to prove it.
10. Having held that the respondent is not entitled to claim eviction under Section 12 (1) (c) of the Act merely because the appellant had chal-
lenged the partition-deed dated 5-10-1984, whereby the respondent claimed that he had become the landlord, this Court further decides if the respondent has established relationship of the landlord and tenant by way of attornment which in view of this Court shall attract the principles of estoppel under Section 115 of the Evidence Act and not under Section 116 thereof. The Trial Court has given a finding on issue No. 1 in affirmative. Therefore, it is necessary to examine if there was any attornment at all. It appears that the Trial Court did not understand the meaning of the word attornment. Attornment means acknowledgment of title either by express words or implied conduct on the part of the tenant. After a person derives derivative title to a tenanted property, the tenant may say in express words that he accepts the transfer and new landlord as his landlord instead of the original landlord. This is attornment in words indeed. He may pay rent or otherwise acknowledge the right of landlord by his conduct. This can be implied. In all these matters, the estoppel stated in Section 115 of the Evidence Act shall be operative because the tenant has allowed the landlord to believe that by virtue of the deed of transfer the relationship of landlord and tenant was established, and the landlord and the tenant acted upon it. Under these circumstances, a tenant could not deny the relationship of landlord and tenant. The Trial Court has not given any such finding.
11. Therefore, the second part of issue No. 1 was not rightly decided by the Trial Court.
12. However, the Trial Court has held that the registered partition-deed dated 5-10-1984 has been proved by the respondent and, therefore, by operation of Section 109 of the Transfer of Property Act the respondent became the landlord of the appellant. The appellant, on the other hand, has taken the plea that the so called partition-deed is a sham transaction and for this reason, he is not liable to be affected.
13. It has been argued on behalf of the respondent that the tenant cannot challenge the partition between father and son because he is stranger to the deed of partition. The basic question is whether the plea of the appellant that the deed of partition is a sham transaction, created for an alterior purpose. In other words, the appellant is challenging the very foundation of the document and saying that it is not genuine. It does not serve the purpose for which it was created in fact. It appears that in the Trial Court the decision in the case of Mohanlal Mintoolal and another Vs. Hakimsingh Gopalsingh and another, reported in 1980 MPLJ 361 was cited which has been cited before this Court too for the proposition that a stranger cannot challenge the partition. In the opinion of this Court, the learned Single Judge made the observations in page 369 of that report regarding the mode of enjoyment of the property by partition. It appears that in the context of substantial question of law No. 1 those observations were made. Those observations are confined to actual division of property by meets and bounds. It was held that a tenant cannot challenge which portion went to which party in deed of partition amongst the members of the joint Hindu family. The plea of the appellant is altogether different. He has stated that the right on which the respondent based his claim does not exist at all. The deed of partition is not a deed of partition at all but a sham document. It appears to this Court that the ruling aforesaid is distinguishable on facts. In the opinion of this Court, it is one thing to say that the partition was sham. It is another thing to say that though the partition had taken place but the property was not divided as claimed by the parties to the partition. This plea, taken by the tenant in the case cited above, was not accepted.
14. Therefore, the real question is if the respondent got the suit property in partition from his father Manoharlal Gupta. It is also clear that the respondent claimed his property on the basis of registered partition-deed dated 5-10-1984. It is that document which has to be examined for the purpose of finding out if there was any partition at all. It is clear from the deed of the partition Ex. P-1 dated 5-10-1984 that the suit property was the self-acquired property of Manoharlal Gupta. It has been stated in the deed of partition that two of his sons Dr. Dinesh Chand Gupta and Dr. Gyanesh Chand Gupta were serving as Government Servants and four sons Ramesh Chand, Mukesh Chand, Shailesh Chand and Yogesh Chand were living with Manoharlal Gupta and were doing business alongwith him. It is stated further in the deed that this properly which was his self-acquired property is being given in partition to Shailesh Chand Gupta, the respondent as he wanted to start his business separately. Consequently, the respondent shall become owner of the property and he shall be entitled to receive the rent from the appellant of the property occupied by him. It was also stated in the plaint that Yogesh Chand shall not have any right in any other property of Manoharlal Gupta.
15. Tt is argued vehemently for the appellant that this document cannot be said to be a partition-deed as there was no properly belonging to the joint Hindu family. It is clear from the document Ex. P-l that the joint Hindu family of Manoharlal Gupta and his sons had no joint Hindu family. The enlire properly was the self-acquired property of Manoharlal Gupta and, therefore, the question of partition did not arise as the sons had no right or title in the property belonging solely to Manoharlal Gupta by birth. Manoharlal Gupta, therefore, has transferred the property by way of partition with a view to give right to the respondent to file the civil suit as he was not himself in a position to file the suit for eviction against the appellant.
16. It is necessary to examine the finding and also the evidence on record from this point of view. The evidence of the respondent discloses that he required the suit premises for the show-room of a small scale industry known as "Shushila Industries". The aforesaid factory owned by the respondent was registered at Ambikapur as per Ex. P-7 and the appellant had required the suit premises for the show-room in the factory where he can display the goods like Almirahs, Coolers and Trunks etc. It was claimed by him that he was at present keeping the aforesaid goods for sale in the premises belonging to his father who wanted that it would be vacated. In Paragraph 56 of his deposition, he says that he is unable to say if his father had given any property to his brothers in partition. He has also not disputed the fact that all his brothers lived with his father and they were living together. In Paragraph 27, the witness stated that it was he who alone got the property in partition and not his brothers. All the brothers lived together in 5 to 6 rooms. It is significant that in answer to question No. 32, which was regarding the fact why the respondent did not file an application for mutation of name immediately after partition, the witness stated after three minutes that this partition was not done with a view to get a decree of eviction. The witness also admitted that his father has 9 shops and in Paragraph 42, he admitted that a shop near the Bata Shop was vacant which was being used for residence. In Paragraph 53, this witness says that the show-room of his shop is of 12 x 15 sq. ft. It was also not disputed that the shop for which he has filed the suit is in the same line as the present show-room is situate belonging to his father. P.W, 2, Chhedilal Agrawal is an additional witness of the partition-deed. Nothing much turns upon his evidence. How-ever, the evidence of P.W. 3, Manoharlal Gupta is of great consequence. He stated in his evidence that since in the year 1985, the respondent wanted to start a separate business of his son and, therefore, the partition-deed was executed. This witness also stated that the present show-room of the factory run by the respondent belonged to him and he wanted that his son should vacate that part belonging to him. This witness stated in cross- examination that he had not executed any registered-deed in respect of his self-acquired property which he wanted to give to his other sons in partition. He also stated that there was no ancestral property and all his properly was acquired by him. It was staled by this witness that subsequently he has given some property to his other sons without a registered partition-deed.
17. As againsl this, the appellant defendant had examined himself as D.W. 4 and he stated that the deed of partition was not a genuine document and ail the brothers remained joint and were doing business jointly. There was no partition. The deed of partition was executed with a view to get enhanced rent. D.W. 6, Talaram Sapda also stated that Manoharlal Gupta wanted to increase the rent and wanted Rs. 500/- per month and he had also stated that all the sons of Manoharlal Gupta were jointly looking after the business.
18. On this evidence, the main argument of learned counsel for the appellant is that the suit properly could not have been put to partition. It was a self-acquired properly of Manoharlal Gupta and, therefore, the respondent plaintiff had no right or title in the suit property. He could not be allotted the suit shop in partition by his father. It was argued that father had a right to gift the property and the deed of partition Ex. P-1 could not be treated as a deed of gift because the requirements under Section 123 of the Transfer of Property Act were not complied with. The document Ex. P-1 does not show that any consent was given by all the brothers of the respondent to such a course being adopted and, therefore, this document could not also be treated as a family arrangement. It is clear that this document was created with an ulterior motive. It was pointed out by the counsel for the appellant that it is the case of the respondcnt-plaintiff that the wanted to have a commercial loan for starting a new business in his own name and for this purpose, it may have been necessary to create a document. Learned counsel for the appellant further argued that the fact remains that no mutation was done in the municipal record soon after the execution of the partition-deed and this fact showed that the respondent did not claim himself to be owner of the suit property even after execution of the deed of partition.
19. As against this, it has been argued that even if a property is self-acquired property, it can be partitioned by way of family arrangement and, therefore, this Court should uphold the partition. Reliance was placed on the decision in the case of G. Narayana Raja (dead) by his legal representative Vs. G. Chamaraju and others, reported in AIR 1968 SC 1276, and in the case of Puran s/o Sri Ram Vs. The State of Punjab (I), reported in AIR 1953 SC 459.
20. In the ppinion of this Court, as a matter of fact, it can be held that joint Hindu family of Manoharlal Gupta had no joint Hindu family property. The evidence on record shows that all the property belonged to Manoharlal Gupta. It was his self acquired property. Once this fact is borne in mind, the only way the property can be held to be joint Hindu family property is if the Owner of the self acquired property voluntarily threw his property into joint stock with the intention of abandoning his claim to it. It would always be a question of fact whether the member of the joint Hindu family property had abandoned and surrendered his rights in favour of all the co-parceners. This action is usually taken by throwing the self acquired properly in the common slock. However, in this particular case, there was no common stock. Even if we assume that the respondent's father Manoharlal Gupta could convert all his self-acquired properly into joint Hindu family property of the co-parcenary, there must be clear intention on his parl to do so. He was required to waive his rights and such intention could not be inferred indirectly from the actions of the co-parcenary. It is his actions clearly indicating that he gave his rights in the self-acquired property in favour of the joint Hindu family properly should be pleaded and proved. In the case of G. Narayana Raju (dead) by his legal representative, AIR 1968 SC 1276 (supra) relied upon by the respondenl himself, it has been pointed but that in the case of Naina Pillai and others Vs. Daivanai Ammal, reported in AIR 1936 Madras 177, the self-acquired property was described and dealt with as ancestral joint Hindu family property. But, the Madras High Court pointed out that the above series of facts by themselves were not sufficient to hold that the self-acquired property acquired the characteristics of joint Hindu family property. The Supreme Court points out that there must be volition and intention of surrendering the personal right in the 'separate properly. The evidence on record in this case showed that the Ij respondent's father Manoharlal Gupta executed a deed of partition. However, the evidence of P.W. 3, Manoharlal Gupta does not indicate that he ever thought of abandoning his right in the suit property and throw the property in the joint stock. All that Manoharlal Gupta says is that he and his four sons were doing jointly the business and the respondent wanted to start separate business after obtaining loan and, therefore, he had executed a deed of partition in respect of the suit property. It is not his statement that he had treated any part of his property as joint Hindu family property and then gave the property to the respondent in partition. He also did not say on the day when the deed of partition was executed, he had given any share to any one else. Although, he stated that he had given some share subsequently to his other sons but this part of his evidence is not at all reliable. There may be more than one reason why deed of partition was executed. It may be because such a deed of partition was necessary to obtain a loan from the Bank or it may be because Manoharlal Gupta was not in a position to obtain a decree for eviction. We may not be able to find out the reason for doing so. The fact, however, remains that there is no evidence on record suggesting that Manoharlal Gupta had thrown his property into the common stock to make it a joint Hindu family property prior to partition. Since the respondent was not a co-owner of the property acquired by Manoharlal Gupta, he had no right to get a share in the property. He could be entitled to a gift of property, but he could not get any share in the property. Therefore, it is very difficult to hold that the respondent became owner of the suit property by virtue of deed of partition. The conduct of Manoharlal Gupta also is not such as would point out to a clear case of surrender of his rights in the property in favour of the joint Hindu family. The evidence of the respondent also does not inspire any confidence. On the other hand, as already pointed out, the answer given by him to question No. 32 shows that he was a tutored business. He appears to have been told to say in the Court that he had not got the partition- deed executed for the purpose of evicting the appellant. It has already been pointed out that the conduct of the respondent also did not show that he wanted to act as the owner of the suit property. He did not get his name mutated soon after partition. Further, he admitted that he did not know that any property in partition was given to his brothers or not. All these circumstances pointed out to one fact that Manoharlal Gupta had not treated the suit property as joint Hindu family properly by throwing it into common stock. The Court below was wrong in holding that the execution of partition-deed was only mode by which Manoharlal Gupta could have transferred the property to his son. The learned Additional District Judge failed to see that the father had always a right to make a gift-deed in favour of his son. Therefore, there was no question of execution of partition- deed in respect of self-acquired property. The partition-deed would not make his son owner of the suit properly. This Court is of the view if Manoharlal Gupta had not given the property to the respondent by way of correct mode. There could be hardly any objection. The execution of partition-deed shows that the transaction was not a genuine transaction and the appellant appears to be right in his contention that by execution of Ex. P-1, there was no relationship of landlord and tenant between the respondent-plaintiff and the appellant defendant.
21. This Court, therefore, does not consider it necessary to record its finding on the question of eviction under Section 12 (1) (e) of the Act. The respondent was not the landlord of the appellant and, therefore, he could not file a suit for eviction against the appellant.
22. The result is that it is held that the document, Ex. P-1, was a sham document and did not confer any right or title on the respondent to evict the appellant. The consequence is that this appeal succeeds and is allowed, and the judgment and decree of the Court below is hereby set aside. The suit filed by the respondent is hereby dismissed. No costs.
23. First Appeal allowed.