23"1 DAYA RAM AND omERS v. SHYAM SUNDARI September 8, 1964 B (P. B. GAJENDRAGADKAR, c. J., J. c. SHAH AND N. RAJAGOPALA. AYYANGAR JJ.) P~rtition–Suit for–Equities between co~olvners.
Cork of Civil Procedure (Act V of 1908), O.XXJI, r. 4(1) and (3)- Scope of. JI Praciice-Legal representatives-Duty to bring on record to make, ·record complete. Har Charan, respondent's father, and his two brothers, owned certain land.'l.
Afrer the death of Har Charan his brothers sold the lands to the· father of the appellants. The respondent filed a suit claiming a decree fpr possession of a third share in the property alleging that Har Charan and his brothers were separated in interest. After notice of the claim of the res_p0ndent. the purchaser made some constructions in pursuance of an agreement with the Improvement Trust. The respondent's claim was de- creed but, in execution of the decree it was ordered that she should file a suit for partition .in which her rights would be worked out. In the suit for partition, tbe trial Court held that in equity she was only entitled to a decree for money representing the value of her third share, on the ground that the appellants' father had constructed buildings on the land. The High Court allowed her appeal holding that as the buildings were com, pleted with the knowledge of the respondent's claim, the appellants could not plead any equity in ·their favour.
The decree was challenged in appeal to the Supreme Court. While the appeal was pending the respondent died and only some of her legal representatives were brought on record. It appeared however that there was no want of diligence or bona fides in the appellants. in making an enquiry as to who the legal representatives were. HELD : (i) The appellants' father was in the position of a trespasser with notice of the claim of the true owner and he
·- •Id not claim any •pecial equity based upon his having bona fide put common property to use and dfocted improvements on it. [237B-D]. (ii) Under 0. XXII, r. 4(1) and (3) of the Civil Procedure Code, 1908, where a p1.1intiff or an appellant after diligent and bona fide enquiry ascer- tained who the legal representatives of a deceased defendant or respondent were, and brought them on record within the time limited by law, there would be oo abatement of the suit or appeal, even though some other legal representativ~s remained unknown to him and were not impleaded. if those legal representatives who were impleaded sufficiently represented the estate and a decision obtained against them bound the entire estate. If however it is brought to the notice of the appellant during the pendency of the appeal that.some of the legal representatives had not been 1mpleaded, it would be the ·duty of the appellant who was thus made aware of his default, to bring thooe others on record. [2400-F; 242B].
Case lav: reviewed. :232 [1965] I S.C.R. CIVIi. APPELLATE JURJSPICTION : Civil Appeal No. 360 of 1962. Appeal from the judgment and decree dated February 26, 1957 of the Allahabad High Court in F. A. No. 487 of 1945 .• S. K. Kapur, Advocate-General, Punjab, S. Murty and K. K.
Jain, for the appellants. G. N. Dikshit, for the respondent. The Judgment of the Court was delivered by Ayyangar J. This is an appeal by a certificate granted by the High Court of Allahabad under Art. 133 (I) (b) of the Constitution . C and represents, and that is our hope, the Inst stage of a litigation whicb has lasted over forty years between the deceased respon- ~lent-Shyam Sundari-and Mata Din, the father of the appellants. The following facts are necessary to be stated in order to .appreciate the very short point that arises for consideration iri this o app~al. The father of Shyam Sundari-the deceased respondent was one Babu Har Charan Lal. He was the owner along with his two brothers-Kanhaiya Lal and Sheo Narain, of plots 599 an•J 600 situated in Sisamau in Kanpur on which there existed certain petty constructions. The three brothers were separated in interest and were each entitled to a third share. Babu Har Charan Lal died in December, 1915 leaving behind him surviving his widow -Tulsa Kunwar and an only daughter–Shyam Sundari .. Tulsa Kunwar died on June 6, 1919 but even before her death Kanhaiya Lal and Sheo Narain, the two brothers of her husband claiming a full interest in those plot~. sold them to Lala Mata Din, the father of the appellants by two registered deeds of sale for Rs. 7 ,000 on. the footing that each was entitled to a half share, ignoring the rights of Tulsa Kunwar who wa~ admittedly no party to that transaction of sale.
Aft.er the death of Tulsa Kunwar, Shyam Sundari made a claim against the purchaser for her third share in the property as the heir of her father, but as this was denied to her, she filed in March 1922 a suit numbered as 20 of 1922 in the Court of the Second Subordinate Judge, Kanpur for the
recovery of possession of her third share in these two plots. But before this suit was filed certain matten; transpired between Mata Din and the Kanpur Improvement Trust which have to be referred to because the agreement entered into on December 15, 1921 between the Improvement Trust and Mata Din as a result of ·these negotiations and the steps taken by Mata Din in oonsequence DAYA RAM v. SHYAM SUNDARI (Ayyangar J.)
A thereof are relied on by learned Counsel for the appellant in sup- port of the contentions raised by him in the appeal. It appears that there was a proposal for the acquisition of these plots by the Kanpur Improvement Trust, that the proposed acquisition was objected to by Mata Din and that the proposal was abandoned by the Improvement Trust as a result of the agreement entered into B by Mata Din whereby he agreed to convey to the Trust 895·35 sq. yds. of land free of cost, in lieu of the betterment contribution, and also agreed to construct on the remaining part of the pre- mises, shops and houses in accordance with plans approved by the .. Improvement Trust. The relevance of this agreement and of the C constructions effected by Mata Din in pursuance of the agreement we shall reserve for consideration later.
The principal defence of Mata Din to the suit 20 of 1922 was based on the allegation that Har Charan Lal was joint in status· and in interest with his two brothers and that on the former's death without male issue the family property survived to the D other .two brothers. The trial Court found against the plaintiff- Shyam Sundari on this issue and dismissed her suit. She filed an appeal to the High Court and the learned Judges allowed her appeal. At the stage of the hearing of the appeal a claim . was made by Mata Din that he was entitled to compensation for the E building erected by him on the ground that he had effected im- provements to the property (these beiag the shops and houses which he undertook to construct under the agreement with the Improvement Trnst) bona fide and he rested his case in this regard on the terms of s. 51 of the Transfer of Property Act. The learn- ed Judges, however, disallowed this claim for compensation. The F claim to compensation for improvements effected had not been raised in the pleadings, nor urged in the trial Court and the learned Judges observed :
"No definite allegation of improvement of the property was raised in his written statement. No sum spent on the building was specified and there is very good reason. as we have said, to believe that Mata Din
had no ouilding on this land on the 1st December, 192 l. . We cannot for a moment believe that the building was finished by the 1st December, 1921. He had notice of the plaintiff's claim by
March, 1922 and if he went on after getting notice of the plaintiff's claim to finish the completion of the build- ing he wa~ taking a risk and he must accept the consequences." [ ! %5] I S.C.R
Allowing the appeal the learned Judges granted Sh yam Sundari a decree for possession of a third share of the plots specified in the lists attached to the plaint. That decree has now become
final. When Shyam Sundari sought execution of this decree, there was again trouble raised by Mata Din and when she obtained joint formal possession of her third share of the property under the orders of the executing Court Mata Din filC'd U!) appeal to the High Court and the learned Judges held that Shyam Sundari was not entitled on the basis of the decree which she had obtained in suit 20 of 1 922 to any specific portion of the land. All that she was entitled to, the learned Judges said, was to symbolical possession of a third of the plots 599 and 600 and that she ought to file a separate suit for partition in which this right of hers could he worked out.
In pursuance of thi> finding and decree of the High Court, Shyam Sundari filed the suit out of which the present appeal anses-suit 9 of 1939-against the present appellants who are the sons of Mata Din. who had died in I 933. The claim made in the suit was for dctc1mining the third share of the lands and for allotting the same to her and if there were buildings on sr.ch a plot the plaint prayed that they might either be given over to her or be permitted to be demolished by the defendants. with a further prayer that lhe plaintiff might be put in possession of her third share as a.~certained. She also claime<l the other usual reliefs .of mesne profits and costs.
Several defences "ere raised to this suit. ~omc of which were obviously frivolous. Such, for instance. were the pleas !hat the suit was barred by limitation or by s. 47 ·Of the Civil Procedure Code or that she had lost title by adverse possession on the part of the defendants.
The trial Judge over- ruled these technical defences and held that her suit for the ascer- tainment and possession of a third share wa~ maintainable. But having '" held. instead of graniing her a decree for a ·third share of Ihc plot< to which she had obtained a right in suit 20 of 1922, he granted her a de..:rcc for Rs. 2,620 as representing the third share of the price of the land in question. She was also granted a decree for Rs. 2,000 as ·her share of the materials on the land at the date of the sale to Mata Din, but this portion of the decree was, on appeal by the appellants. deleted by the learned Judges of the High Court and need not, the.rcfore, be considered. Her claim to the allotment in specie of a third share in the suit land was disallowed to her on the ground that Mata Din had ·COnstrocted certain buildings on the land nnd that it wns not DAYA RAM v. SHYAM SUNDARI (Ayyangar J.)
A possible to allot to her a third share in the land without interfer- ing with the buildings and that for this reason the defendants– the appellants before us were entitled to the equity of requiring the plaintiff Shyam Sundari to sell her share to them or, in other ·words, be compelled to take the money value of the land in lieu of her share in it. Shyam Sundari appealed from this decree to the High Court. The appeal was allowed by the High Court
which granted her a decree for a share of the property. The decree passed in favour of the respondent by the High Court runs in these terms: "A preliminary decree for partition of ·the
appellants' 1/3rd share in plots 599 and 600 area 1122·99 sq. yds. be passed and that it is hereby directed that the appellant shall be allotted to her share the land on which the least valuable constructions stand and
that it shall be open to the respondents to remove· their constructions froln the site allotted to the i> appellant's share, but if they do not, the ·appellant shall be entitled to take possession over them with-
out any payment and shall become their owner." It is the correctness of this decree for partition and possession that is challenged by the appellants who, as stated before, have obtain- E ed a certificate of fitness from the High Court.
'The ground upon which the learned trial Judge considered that the defendants were entitled to this equity was that Mata Din had made the constructions on the land, being obliged to do so by reason of the agreement with the Trust and that he effected these improvements as a co-owner and not as a trespasser _and that F in entering into an agreement with the Trust he did not act ma/a fide but to save the land in dispute for himself and his co-owners from being acquired by the Trust and that .as Shyam Sundari did not assert her title \lefore the construction started it would not be equitable to permit her to obtain a ·share in the land on which the new constructions stood and that it was within the jurisdiction G of the court trying a partition suit to transfer to co-sharers at the market price the shares of others in_stead of dividing the property and that as it was impracticable to divide the property without demolishing some at least of the constructions, the defendants were entitled to insist that they should be permitted to purchase the third share of Shyam Sundari in the vacant land. In revers- ing this judgment, the learned Judges of the High Court held that the action of Mata Din in purchasing the property was not bona fide. Mata Din had put forward, in the previous litigation SUPRl!ME COURT REPORTS
[1965] I S.C.R. -suit 20 of 1922-a defence based on s. 51 of the Transfer of A Property Act and in that he failed. The agreement with the Trust was on December 15, 1921 and Shyam Sundari's suit 20 of 1922 was filed in March 1922.
It was, therefore, clear that whether or not the constructions were commenced before the suit was instituted, they were completed with knowledge of the claim of Shyam Sundari to which, as the Courts have now found, he had no defence. The agreement \'.'ilh the Trust could not justify Mata Din's action because the Trust could not agree with a person who was not the owner of the property to construct buildings
on another's property. It would have been open to Mata Din to have informed the Trust immediately he got notice of the claim of Shyam Sundari that only a 2/3rd share in the site belonged to him, but he did not do so but completed the constructions ignor- ing the claims of Shyam Sundari. They could not therefore, take advantage of their own acts and conduct and plead an equify based upon their wrongful act~. On this line of reasoning the learned Judges held that there was no equity in favour of Mata Din and his heirs and hence passed a decree in favour of Shyam Sundari in the terms we have extracted earlier.
Learned Counsel for the appellants, though he referred to the Partition Act, could not obviously rely upon it because the pro- cedure adopted by the learned trial Judge ytas not one which was sanctioned by that enactment, viz., sale of the entire property which is the subject of partition. He, therefore, urged before us that at the stage when Mata Din entered into the agreement with the Improvement Trust the position was that the interest of the co-sharers was in jeopardy and they ran the risk of losing the entire property by the same being acquired under the Land Acqui- sition Act and that by his act in entering into the agreement the co-owners had been saved the property now in dispute and that, in the circumstances, the agreement was one which was entered into bona fide and that he could claim an equity based on the constructions erected in pursuance thereof.
We do not sec any substance in this argument. If the property had been acquired under the Land Acquisition. Act compensation at the market value with the solatium would have been provided and Shyam Sundari would have been entitled to a third share in that com- pensation. There is, therefore, no question of Mata Din salvag- ing something for the c0-0wners; and on that ground being entitled to plead an equity based on such an act. Nor is there any sub- stance in the argument derived from the analogy of improvements effected by co-owners or co-sharers, for admittedly Mata Din dealt DAYA RAM v. SHYAM SUNDARI (Ayyangar J.)
237' A with the property as full owner denying the claims of Shyam Sundari to a third share in the property. Virtually ,it would be· seen that the equity pleaded is based on the principle underlying s. 51 of the Transfer of Pr9perty Act, and as we have seen, the· argument calling in aid this provision of law had been urged' before the High Court in the appeal against the decree in suit 20 B of 1922 and had been rejected for the reasons we have extracted earlier, and these reasons clearly negative all bona (ides in the construction of these buildings. In these circumstances, we con- sider that-the learned Judges were "justified in treating the acts of Mata Din as those of a trespasser who, with notice of. the claim of the true owner, had effected constructions on the property. It c is obvious that in those circumstances he could claim no special equity based upon his having bona fide put common property to use and effected improvements on it. We consider, therefore, that the decree passed by the High Court is not open to objection .and the appeal has accordingly , to fail.
Before roncluding, however, it is necessary to deal with a preliminary objection raised by learned Counsel for the respon- dent that the appeaf had abated and that it ought to be <!,ismissed in limine on that ground. The decree passed in the case, as would have been seen, was for partition and delivery of separate posses- E sion of a l/3rd share in the two plots No. 599 and 600 of Sisa- mau, Kanpur in favour· of Shyam Sundari and in the appeal filed by the heirs of Mata Din she was the sole respondent. The High Court granted a certificate of fitness under Art. 133(1)(b) on September ·13, 1957 and the appeal was declared admitted by the High Court on November 27, 1957 and thereupon under the
F relevant provisions of the Civil Procedure Code the appeal became pending in this Court. Shyam Sundari was stated to have died sometime in April, 1959 and thereafter the appellants took steps to irnplead her legal representatives. In the petition filed by the appellants for the purpose, they stated that the heirs of the deceas- ed were her husband and four sons, and it was prayed that these G might be irnpleaded as the legal representatives of the deceased. The petition was granted.
The substitution was made and the legal representatives who were impleaded respondents have enter- ea appearance and are contesting the appeal and ii is on their behalf that the preliminary objection is being raised. In the state- ment of case which these respondents filed in October 1962 they H took the plea that the appeal had abated since a son Kunwar Bahadur and a daughter Laxmibai of Shyam Sundari had not
been brought on record as legal representatives within the time [1965) I S.CR. allowed by law. No allegation, however, has been made either suggesting that the appellants had not made diligent and bona fide enquiries regarding who the legal representatives of Shyam Sundari were or that they bad any motive fraudulent or otherwise in not adding the son and the daughter in the array of legal repre- sentatives in their petition under 0. 22 r. 4, Civil Procedure Code. The question for consideration is whether when an appellant has impleaded heirs of the deceased respondent so far as known to him within the time allowed by law, but has omitted to bring on record some of the heirs, this omission results in the abatement of the appeal.
As we shall pciint out presently, the question in such casea is c whether the estate of the deceased is properly and sufficiently represented for the purpose of defending the appeal and whether, in law, the estate can be so represented even when some of the heirs are, without fraud or collusion, omitted to be brought on record.
Before, however, e.umining this point, it would be con- venient to refer to and deal with the authorities relied on by Coun- se\ for the respondent in support of his submission. l.earaed
·Counsel for the respondent relied on two decisions of this Court -The State of Punjab v. Nathu Ram(') and Ram Sarup v. Munshi( 2 ) as leading to this result. In the first case the Govern- ment of Punjab acquired certain parcels of land belonging to two brothers L & N who refused to accept the compensation offered to them and applied to the Government to refer the dispute ; to arbitration. The matter was thereafter referred to arbitration under the Punjab Land Acquisition (Defence of India) Rules, 1943 and an award was passed in favour of the brothers. The Government appealed against the award to the High Court and during the pen- dency of the appeal before the High Court one of the brothers died and no application was made for bringing on record his legal repre- ·sentatives within the time limited by law. A preliminary objection was raised to the hearing of the appeal by the surviving brother who claimed that the entire appeal had abated by reason of the 'legal reprc.~entatives of the deceased brother not having been brought on record in time. The learned Judges of the High Court accepted this contention and dismissed the entire appeal.
The State of Pun jab came up in appeal to this Court and this Court 'held that in the case of a joint decree the decree was indivisible ·and in such a case the appeal againM one respondent alone can- ~ot be proceeded with and would have to be dismissed as a result "of the abatement of the appeal against the deceased respondent {I) [1962j2 S.C.R. 636.
(2) [19631 3 S.C.R. 858. DAYA RAM v. SHYAM SUNDARI (Ayyangar I.) A for otherwise there would be two inconsistent decrees. This Court found that the l:rothers had made a joint claim and got a joint decree and it was that decree. which was joint and indivi- sible that was being challenged in appeal before the High Court. The appeal of the State was dismissed. We do not see how this decision helps the respondent but shall examine it after referring B to the other decision of this Co11rt on which the learned Counsel sought support.
In Ram Sarup v. Munshi(') there had been a pre-emption decree and an appeal was preferred from it by the vendees. One of the appellants died pending the appeal and his legal representatives were not brought on record. As the decree was a joint one and as part of the decree had become final by reason of the abatement it was held that the entire appeal must be held to have abated.
The principle upon which these cases rest has no application to the case before us. The first of the above decisions was a case where a joint decree had been passed in favour of two individuals and that was challenged in the appeal D before the High Court. It was common ground that the appeal against one of the joint decree-holders had abated owing to none of his legal representatives having been impleaded within the time limited by law.
There was, therefore, none on the record who could represent the estate of the deceased respondent. In such a case the only question that could arise would be whether the E abatement which ex concessis took place as regards one of the respondents should have effect partially i.e., confined to the share of the deceased respondent as against whom the appeal has
abated, or whether it would result in the abatement of the entire appeal. This, it is obvious, would depenJ on the nature of the decree and the nature of the interest of the deceased in the pro- F perty. If the decree is joint and indivisible, it would be apparent that the abatement Wl)Uld te total. It was ;:•recisely a question of this sort that was raised by Nathu Ram's(') case.
The other deeision in Ram Samp v. Munshi(') is alsc. an illustration of the identical principle, and that is the reason why this Court pro- ceeded to cons\der elaborately the nature of the interest inter .~ G of the vendees who had filed the appeal.
It is clear that in the appeal now before us no such question of partial or total abate- ment arises. The case before us is entirely different. There was a decree in favour of Shyam Sundari-and tllat is the subject-matter of this ff appeal.
The question is whetlter there has been abatement of the appeal against Shyam Sundari. Shyam Sundari's heirs have (I) [19fi3) 3 S.C.R; 8S8. (2) [1962) 2 S.C.R. 636. [1965] I >.C.R.
been brought on record within the time allowed by law and the only quesuon t whether the fact that two of the legal representa- tives of Shyam Sundari have been omitted to be brought on record would render the appeal incompetent. This turns on the proper interpretation of 0. 22, r. 4 of the Civil Procedure Code : "4. (I) Where …………… a sole defendant or sole
surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with
the suit. 4. (3) Where within the time limited by law no applica- tion is made under sub-rule (I), the suit shall abate as against the deceased defendant." When this provision speaks of "legal representatives" is it the in- tention of the legislature that unless each and ever{ one of the legal representatives of the deceased defendants, where these are 0 several, is brought on record there is no proper constitution of the suit or appeal, with the result that the suit or appeal would abate? The almost universd consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal reprecentatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of tho suit or appeal.- that the impleaded legal representatives sufficiently repre- sent the estate of the deceased and the decision obtained with !hem on record will bind not merely those impleaded but the entire estate including those not brought on record. The principle of this rule of Jaw wa~ thus explained in an early decision of the Madras High Court in Kadir v. Muthukrishna Ayyar('). Tho facts of that case were that when the defendant died the first defendant before the Court was impleaded a~ his legal representative. The impleaded person raised no objection !ha! he wa~ not the sole legal representative of the deceased defendant and that there were others who had also to be joined.
In these circumstances, the Court observed: "In our opinion a person whom !he plaintiff alleges to be the legal representative of the deceased defendant and whose name the Court enters on the record in
the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and -··——— (! (t902) I.LR. 26 Mad. 230. c DAYA RAM v. SHYAM SUNDARI (Ayyarrgar J.)
in the absence of any fraud or collusion the decree passed ·in such suit will bind such estate …….. If this were not the law, it would, in no few cases, be practically impossible to secure a complete represen-
tation of a party dying pending a suit and it would be specially so in the case of a Muhammadan party and there can be n<> harpship in a provision of law by which a party dying during the pendency of a
suit, is fully repre>ented for the purpose of the suit, but only for that purpose, by a person whose name is enter~d on the record in place of the deceased party under sections 365, 367 and 368 of the Civil Pro-
cedure Code, though such person may be only one of several legal representatives or may not be the true legal representative." This, in our opinion, correctly represents the law. It is unneces- sary, here, to consider the question whether the same principle D would apply when the person added is not the true legal represen- tative at all. In a case where the person brought on record is a legal representative we consider that it would be consonant with justice and principle that in the absence of fraud or collusion the bringing. on record of such a legal representative is sufficient to prevent the suit or the appeal from abating.
We have not been referred to any principle of construction of 0. 22, r. 4 or of the law which would militate against this view. This view of the Jaw was approved and followed by Sulaiman, Acting C.J. in Muhammad Zafaryab Khan v. Abdul Razzaq Khan('). A similar view of
the law has been taken in Bombay–See Jehrabi Sadullakhan Mokasi v. Bismillabi Sadruddin Kaii(')-as also in Patna–See Lilo Sonar v. Jhagru Sahu(•), and Shib Dutta Singh v. Sheikh Karim Bakhsh(') as well as. in Nagpur-Abdul Baki v. R. B.
Ban.vi/al Abirchand Firm, Nagpur('). The Lahore High Court has also accepted the same view of the law-5ee Mst. Umrao Begum v. Rehmat llahi( 6 ). We are. therefore, clearly of the G opinion that the appeal ha1 not abated.
1be next question is about the effect of the appellant having omitted to include two of the heirs of Shyam Sundari, a son and a daughter who admittedly had an interest in the property, and the effect of this matter being brougli.t to the notice of the Court H before the hearing of the appeal. The decisions to which we have (I} (1928) I.L.R. SO All. 857.
(3) (1924) I.L.R. 3 Patna 853. (S) 1.L.ll. (1!144] Nag. 577. (2) A. l.R. 1924 Bom. 420. (4) (1924) l.L.R. 4 Patna 320. (6) (1939) l.L.R. 20 Lahore 433. [ l 96S] I s.c.R. referred as well as certain others have laid down, and we consider A this also correct, that though the appeal has not abated, when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent ha vc not been brought on record, and the appellant is thus made aware of this default ·on his part, it would be his duty to bring these others on record, so that the appeal could be properly consti· tutcd.
In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other rcpre,entatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be ad- journed for the purpose of making the record complete by iro- pleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 and was still pending quarter of a century later and having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed. it would not be necessary to adjourn the hearing for th~ purpose of formally bringing on record the omitted legal repre- sentatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the record complete.
The appeal fails and is dismissed with costs. Appeal dismissed.