Research › Search › Judgment

Orissa High Court · body

2016 DAILYLAW 504 (ORI)

Nisakar @ Nisamani Pati v. Harekrushna Pati

2016-07-12

D.DASH

body2016
JUDGMENT : 1. The above noted appeals having arisen from the common judgment passed by the learned First Addl. Civil Judge (Sr.Divn.), Cuttack in Title Appeal Nos. 86 and 87 of 1995, those have been heard together for their disposal by the common judgment. The appellants of SA No. 144 of 1999 (A) were the appellants in T.A No. 86 of 1995 as also in T.A. No. 87 of 1995. In those appeals, they had challenged the judgment and decree passed by the learned Civil Judge (Jr.Divn.), IInd Court, Cuttack in Title Suit No. 228 of 1986 decreeing the same and the judgment and decree passed in T.S No. 183 of 1989 dismissing the same. The respondents of SA No. 144 of 1999 had filed cross-appeals in those first appeals challenging the finding of the trial court on issue no. 7 of T.S. No. 228 of 1986 and issue no. 10 of T.S. No. 183 of 1989 which were disposed of by common judgment followed by the decrees after analogous hearing. 2. Essential Background Facts:- (A) T.S. No. 228 of 1986 The suit had been filed by Netrananda Pati who having been died, his legal representatives came to be substituted as plaintiffs for declaration that the plaintiffs as also the defendants therein namely, Kulamani, Nisakar, Rasananda and Debaki are having joint title over the suit property. In the said suit, prayer has for permanent injunction restraining the defendants from putting any fence on the eastern and western side of the suit property and making any construction thereon and interfering with the right of the user of the plaintiff over it in any manner. It is the case of the plaintiffs that as per the record of 1929 settlement, plot no. 1221 measuring Ac. 0.35 decimals and plot no. 1222 measuring Ac.0.39 decimals under khata no. 119 stood recorded in the name of Balakrushna, Krupasindhu and Jagabandhu. It is stated that Balakurshna and Krupasindhu together had 8 annas of interest whereas Jagabandhu had 8 annas interest over the same. Krupasindhu said to have been died in the year 1931 leaving behind Balakrushna when the family was enjoying the joint status. Thus his interest is said to have devolved upon Balakurshna by survivorship. There was no partition between Balakrushna and Jagabandhu, even though, Balakrushna was in possession of the land under plot no. Krupasindhu said to have been died in the year 1931 leaving behind Balakrushna when the family was enjoying the joint status. Thus his interest is said to have devolved upon Balakurshna by survivorship. There was no partition between Balakrushna and Jagabandhu, even though, Balakrushna was in possession of the land under plot no. 1222 and Jagabandhu was in possession of the land under plot no. 1221. Netrananda is the only son and legal successor of Balakrushna who died 22 years prior to the suit and the defendants are representing the branch of Jagabandhu who died 40 years prior to the suit. It is stated that the property has never been partitioned. Land under sabik plot no. 1217 belongs to one Jairam which adjoins on the northern side of plot no. 1221. It is the further case of the plaintiffs that during the year 1977 settlement, some portion from plot no. 1221 on its northern side was wrongly amalgamated in plot no. 1217 and accordingly got numbered as 1557/1611 and the rest portion of plot no. 1221 went to plot nos. 1557 and 1558 corresponding to plot no. 1222. The plaintiffs have no knowledge about the wrong recording in the settlement. During consolidation, plot nos. 1557 and 1558 corresponding to L.R. plot Nos. 1343 and 1342 respectively came be recorded jointly in the name of the original plaintiff and defendants under L.R. khata no. 59/1. However, plot no. 1557/1611 corresponding to L.R. plot No. 1344 under L.R. khata No. 97 went to be recorded in the name of Jairam. The defendants filed objection under Section 9(3) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 in respect of L.R. plot no. 1344 wherein by order dated 23.3.76, in the said objection case no. 234 of 1976 in view of the consent of Jairam, his name was deleted in respect of plot no. 1344 and the land was separately recorded in the name of the defendants under L.R. khata no. 64/2. The plaintiff was not impleaded as party in the said objection case and thus it is said that he had no knowledge about final disposal of the objection case. L.R. plot nos. 1342 and 1343 correspond to final consolidation plot nos. 654 and 655 respectively and thus stood recorded jointly in the name of the plaintiffs and defendants under khata no. 63 and L.R. plot no. L.R. plot nos. 1342 and 1343 correspond to final consolidation plot nos. 654 and 655 respectively and thus stood recorded jointly in the name of the plaintiffs and defendants under khata no. 63 and L.R. plot no. 1344 corresponding to plot no. 653 stands recorded alone in the name of the defendants under khata no. 62.The plaintiff’s case is that the parties are using the said plot jointly, even though it has been recorded in the name of the defendants. The plaintiffs claim to be having the residential house on plot no. 654 when the residential house of defendants is stated to be on plot no. 655. These above plots are having some vacant space towards the northern extreme. The plaintiffs claim to be having bari under plot no.652 to the adjoining east of plot no. 655. The vacant space is said to have been used by the plaintiffs in order to go to his said bari as also by the defendants for approaching the public road on the adjoining west of plot no. 654. In view of the wrong recording, the defendants when claimed to have their exclusive title over the suit land and threatened to put a fence on the eastern and western side of the said plot as also to go for construction of house over it in order to prevent the plaintiffs from going to his plot no. 652, the suit for the relief as stated above came to be filed. (A-1) The defendant nos. 1 to 3 namely, Kulamani, Nisakar and Rasananda while traversing the plaint averments first of all have gone to challenge the status of the plaintiff that he is not the natural born son of Balakrushna and according to them, Balakurshna died issueless and on his death, his share devolved upon them. It is stated that the plaintiff is the son of sister of Balakrushna. Furthermore, the claim of sonship even if taken for a moment as of by adoption, the same is contrary to law since there remains the prohibition for such adoption of sister’s son. It is stated that although in the record of 1929 settlement, khata no. 119 stood recorded in the names of Balakurshna, Krupasindhu and Jagabandhu, in fact they were in separate mess and estate. It is said that the land under sabik plot no.1222 adjoins the road on northern side. It is stated that although in the record of 1929 settlement, khata no. 119 stood recorded in the names of Balakurshna, Krupasindhu and Jagabandhu, in fact they were in separate mess and estate. It is said that the land under sabik plot no.1222 adjoins the road on northern side. The defendants’ predecessor in order to approach the public road used the land covered under plots nos. 1214, 1215, 1216 and 1217. Since plot no. 1214 to 1217 belonged to Jairam, Jagabandhu got a permanent lease through registered lease deed dated 2.12.1930 and acquired the leasehold interest in respect of the land under those plots measuring Ac 0.18 decimals out of the said two plots which corresponds to consolidation plot no. 653. It is stated that the residential house of the defendants covers part of said consolidation plot and remaining part is used as passage by the defendants to approach the public road on north. It is further stated that area of sabik plot no. 1221 had been wrongly reduced by A0.02 dec. in 1970 settlement and shown as Ac.0.33 dec. under plot no. 1557 and the reduced area had wrongly been amalgamatged with plot nos. 1560 and 1611. Hence there was a settlement Revision Case No. 3521/72 before the Commissioner and as the consolidation operation commenced, the revision case stood abated. In the consolidation in objection case relating to plot nos. 653, the defendants possession has been found and accordingly at the initial stage their name had been recorded and even after disposal of the objection case, the record of right has been finally published in favour of the defendants. The defendants assert that the plaintiffs are having no right, title and interest over the suit land and it is said that they are bound by the order of the consolidation authorities. The defendants also state that since the time of their predecessors, they have been in uninterrupted and peaceful possession of suit land for long period to the knowledge of the plaintiffs and alternatively they have also acquired title by adverse possession. The defendant no. 1 had sold his share in plot no. 653 in favour of other defendants by registered sale deed dated 13.4.79 and delivered possession of the same. So the defendants have accordingly mutated their names. The defendant no. 1 had sold his share in plot no. 653 in favour of other defendants by registered sale deed dated 13.4.79 and delivered possession of the same. So the defendants have accordingly mutated their names. (B) T.S. No. 183 of 1989 Kulamani, Nisakar, Rasananda and Debaki (who are the defendants in T.S. No. 228 of 1986) as the plaintiffs filed the suit for declaration that Netrananda is not the adopted son of Balakrushna and such adoption even if any is attacked as invalid in the eye of law. They have sought for permanent injunction restraining the defendants namely, Netrananda and his legal representatives from interfering with their possession in respect of the suit land. Karunakar is said to be the common ancestor of the plaintiffs who had two sons namely, Siba and Bhabani. Balakurshna and Aparti are the two sons of Siba. Jagabandhu is the only son of Bhabani. Krupasindhu is the son of Aparti. Balakrushna is said to have died issueless. Thus, it is averred that the interest of Siba devolved upon them after the death of Balakrushna and Krupasindhu. So they claim to be having absolute ownership over the property. Netrananda is said to be the sister’s son of Balakrushna. It is stated that Adikanda, the natural father of Netrananda having an eye over the properties and in order to grab the same, left Netrananda with Balakrushna to look after his comforts. It is also said that Balakrushna was a mentally retarded person and therefore, Adikanda taking advantage of it by practising fraud and misrepresentation created a deed of gift on 4.5.42 and then again a sale deed on 8.1.1947 purported to have been executed by Balakurshna describing Netrananda as his son. These two deeds are said to be void and also to have never been acted upon during the time of Balakrushna. It is asserted that Balakrushna was legally forbidden to adopt Netrananda, who happens to be his sister’s son who was also legally forbidden from being given in adoption by his natural father Adikanda. The adoption if any is said to be in-valid and void. There was in fact no such adoption as they say. (B-1) The defendants’ case is that Balakrushna was having no issue and he died while living in separate mess and estate as also Netrananda as his son (putrabat-as like son). The adoption if any is said to be in-valid and void. There was in fact no such adoption as they say. (B-1) The defendants’ case is that Balakrushna was having no issue and he died while living in separate mess and estate as also Netrananda as his son (putrabat-as like son). The land thus has been recorded jointly in the names of the plaintiff and defendants, there being no partition by metes and bounds. Netrananda is said to have been kept by Balakrushna like his son since the time when he was 8 to 9 years old. It is said that in the year 1942, Balakrushna executed a deed of gift in respect of some portion of his property and again in the year 1947, he executed sale deed in favour of Netrananda. These two deeds are said to have been duly acted upon and the land under the said deeds have been separately recorded in 1970 settlement as also in the consolidation operation. It is further stated that in respect of some agricultural land, there was partition between plaintiffs and Netrananda by metes and bounds followed by publication of separate records of right. It is further stated that if at all, there remains a prohibition in law to adopt sister’s son, yet in order to carry out the line of succession Balakrushna had taken Netrananda to his house and kept him as his son all through being given in adoption and then on his attaining majority, Balakrushna executed a registered sale deed for his livelihood and maintenance in future. Netrananda is said to have succeeded to the property of Balakrushna. The alternative case is that if Netrananda is not found to be adopted son, he has also acquired his title by way of adverse possession. So far as the properties of Balakrushna are concerned, he has remained in possession particularly in respect of the properties covered under the deeds openly, peacefully and continuously to the knowledge of the defendants exercising all the right of ownership. 3. The trial court framed 14 issues in Title Suit No. 228 of 1986 and 15 issues in T.S. No. 183 of 1989. The suits being taken up for analogous hearing, rightly the trial court has taken up the issue in both the suits together for decision in the manner stated herein below:- (a) “Issue no. 3. The trial court framed 14 issues in Title Suit No. 228 of 1986 and 15 issues in T.S. No. 183 of 1989. The suits being taken up for analogous hearing, rightly the trial court has taken up the issue in both the suits together for decision in the manner stated herein below:- (a) “Issue no. 7 of T.S. No. 228 of 1986 and issue no. 10 of T.S. No. 183 of 1989. (a i) Issue no.7-Is the plaintiff son of Balakrushna? (a ii) Issue no.10-Whether Netrananda Pati is the adopted son of Balakrushna and if so, whether said adoption is void? (b) Issue no. 11 in T.S. No. 228 of 1986 and 12 of T.S. 183 of 1989 and issue no. 13 in both. (bi) issue no.11-Are the defendants owner in possession of the suit land? (b ii) issue no. 12-Whether the defendant nos. 1 to 4 have right, title, interest and possession over the suit property? (b iii) issue no. 13-Whether the defendants have perfected their title over the suit land by way of adverse possession? (c) Issue no. 4 in T.S. No. 228 of 1986 and issue no. 5 in both.” (c i) Issue no.4-Is the suit hit by the provisions of O.C.H. and P.F.L. Act? (c ii) Issue no. 5-Is the suit bad for non-joinder and mis-joinder of necessary parties? 4. Accordingly, issue no. 9 of T.S. No. 228 of 1986 has been answered holding that the consolidation authority have wrongly recorded the name of the defendants. Next the issue no. 12 of T.S. No. 228 of 1986 as regards user of suit land as passage by the parties, the answer has been rendered that the suit land issued as passage by the parties. In so far as the issue nos. 7, 8 and 9 of T.S. No. 183 of 1989 are concerned, the answer has been that Netrananda has acquired title having inherited the property of Balakrushna and acquired title over the land covered under the deed of gift as also the sale deed executed by Balakrushna. While deciding issue no. 11 of the said suit all have been said favouring the due execution by Balakrushna and thereby refusing to hold those to be void. The prayer for declaration that Netrananda is not the adopted son of Balakrushna has been held to be barred by limitation in answering the issue no. While deciding issue no. 11 of the said suit all have been said favouring the due execution by Balakrushna and thereby refusing to hold those to be void. The prayer for declaration that Netrananda is not the adopted son of Balakrushna has been held to be barred by limitation in answering the issue no. 3 of T.S. No. 183 of 1989. 5. Finally T.S. No. 183 of 1989 stood dismissed and T.S. No. 228 of 1986 had been decreed. The order has been that the plaintiffs of T.S. No. 228 of 1986 have the joint title with defendant nos. 1 to 3 in respect of the suit land. Consequentially, permanent injunction has been issued restraining the defendants from putting any fence on the eastern and western side of the suit property and from making any construction over there interfering with the right of user of the plaintiff over the same. 6. Thus, being aggrieved by the above common judgment followed by the decrees, the plaintiffs of T.S. No. 183 of 1989 and defendant nos. 2 and 3 of T.S. No. 228 of 1986 filed two first appeals. In the said first appeals, the plaintiffs of T.S. No. 228 of 1986 and the defendants of T.S. No. 183 of 1989 filed two cross-appeals challenging the finding recorded by the trial court on issue no. 7 of T.S. No. 228 of 1986 and issue no. 10 of T.S. 183 of 1989 as regards the status of Netrananda as the adopted son of Balakrushna which have been recorded by the trial court in favour of Netrananda holding him as the adopted son of Balakrushna. 7. Both the above noted first appeals as also cross-appeals have heard together and disposed of by common judgment followed by the decrees. The appeal i.e. T.A 86 of 1995 arising from the judgment and decree passed in T.S. No. 228 of 1986 as well as the T.A. No. 87 of 1995 arising from the judgment and decree of T.S. No. 183 of 1989 have been allowed and the cross-appeals have been dismissed. The appeal i.e. T.A 86 of 1995 arising from the judgment and decree passed in T.S. No. 228 of 1986 as well as the T.A. No. 87 of 1995 arising from the judgment and decree of T.S. No. 183 of 1989 have been allowed and the cross-appeals have been dismissed. Finally the defendants of T.S. No. 183 of 1989 and the plaintiffs of T.S. No. 228 of 1986 have been restrained from disturbing the possession of the plaintiffs of T.S. No. 183 of 1989 and defendants of T.S. No. 228 of 1986 in so far as the suit land is concerned excluding the land covered under the two deeds i.e. gift deed and sale deed Exts. 7 and 8 respectively which would be subject to the 8 annas share of Balakrushna. 8. SA No. 144 of 1999 This appeal has been filed by the appellants of both the first appeals who are the plaintiffs of T.S. No. 187 of 1989 and defendant nos. 2 and 3 of T.S. No. 228 of 1986. By order dated 20.8.1999, the appeal has been admitted on the substantial questions of law as indicated in para nos. 1, 2 and 3 of the memorandum of appeal which are reproduced hereinbelow:- (1) Because the learned appellate court did not consider validity or otherwise of Exts. 7 and 8 on the apprehension that no declaration was sought for. (2) Because the learned appellate court granted an injunction in favour of the appellants relating to the suit property without considering validity on otherwise of Exts. 7 and 8. (3) Because the learned appellate court did not think of wise to record of finding on issue no. 11 with regard to legality of Exts. 7 and 8. 9. SA Nos. 305 and 306 of 1999 These two appeals have been filed by the respondents of both the first appeals who are the plaintiffs in T.S. No. 228 of 1986 and defendants in T.S. 183 of 1989. 11 with regard to legality of Exts. 7 and 8. 9. SA Nos. 305 and 306 of 1999 These two appeals have been filed by the respondents of both the first appeals who are the plaintiffs in T.S. No. 228 of 1986 and defendants in T.S. 183 of 1989. By order dated 20.1.2000, these appeals have been admitted on the substantial questions of law as indicated in paragraphs 1, 2, 3, 4, 8, 9 and 14 of the memorandum of appeal which are the followings:- (1) Whether, in view of admitted fact that Netrananda the original plaintiff in T.S. No. 228 of 1986, had not claimed the properties of Balakrushna by way of succession but by way of transfers and whether the lower appellate court has committed illegality in granting the decree for permanent injunction restraining the appellants from interfering in the possession of the respondents nos. 1 and 2 without considering the validity of the title deeds in the name of Netrananda, Sakhi, Harekrushna and Debaki? (2) Whether, in view of admitted fact that, there has been no joint family or joint family properties in such circumstances, whether the properties transferred by Balakrushna exclusively in favour of Netrananda by way of sale and Gift vide Ext. 7 and 8 are valid deeds and whether, the lower appellate court committed illegality in granting the decree for declaration which is not prayed for? (3) Whether, in view of admitted fact that the Exts. 7 and 8 were executed in the year 1942 and 1947 by Balakrushna in favour of Netrananda and whether the same can be challenged in the year 1989 long after the acceptance of the revenue authority in Mutation Proceeding, Rent Proceeding in Settlement operation of the 1970 and lastly in consolidation, wherein the name of Netrananda was recorded and remained unchallenged and whether the lower appellate court should have held that the suit as well as claim made by the respondent nos. 1 and 2 are not tenable and the same is barred by limitation? (4) Whether, in view of the question raised by the respondent nos. 1 and 2 are not tenable and the same is barred by limitation? (4) Whether, in view of the question raised by the respondent nos. 1 and 2, that the sale deed and deed of gift were obtained by application for forcible fraud, misrepresentation and without consideration and whether in absence of any oral and documentary evidence and in such circumstances the lower appellate court should have dismissed the suit as well as appeals of respondents 1 and 2? (5) Whether, the lower appellate court has gone wrong while deciding the question of adoption and question of validation of adoption which are not in accordance to the Article 514 of Mulla Hindu Law and Article 57 of the Limitation Act and whether both the courts below should have held that raising the question of son-ship of Netrananda is barred by limitation and respondents have no locus standie to challenge the same? (6) Whether, lower appellate court should have decreed the appellants’ suit i.e. T.S. No. 228 of 1986, who have proved that the consolidation plot no. 653 is corresponding to portions of C.S. plot nos. 1221 and 1222, the said land is a passage and same were/are being used to go to bari of the appellants and to the public road by the parties respectively and admittedly there is no other approachable road to consolidation plot no. 652, in such circumstances whether the lower appellate court has committed illegality in holding that the appellants have not made out a case of right easement, therefore are not entitled for decree for permanent injunction? (7) Whether, the lower appellate court has committed any illegality in granting the decree for permanent injunction without considering the admitted fact of transfers made by Netrananda Pati and acquisition of properties by himself, acquisition made by Sakhi Pati, by Debaki and by Harekrushna Pati, these are the portions of properties described in the plaint schedule ‘A’?” 10. I have heard the learned counsel for the parties at length. They have submitted all in support of their respective cases in contending that the suits filed by the respective parties are to be decreed with necessary findings in support of the same. 11. The trial court has held Netrananda to be neither the natural son nor the adopted son of Balakrushna. It’s finding is that he was the foster son of Balakrushna. 11. The trial court has held Netrananda to be neither the natural son nor the adopted son of Balakrushna. It’s finding is that he was the foster son of Balakrushna. It has been pleaded in the plaint that Netrananda is the son of Balakrushna and Balakrushna died 22 years prior to the litigation leaving Netrananda as his only heir being the son. So, when it is stated that Netrananda has succeeded to the property of Balakrushna, it is either as natural born son or adopted son but certainly not being the foster son. Admittedly, Netrananda was residing with Balakrushna. If for a moment, it is taken that Netrananda was the only heir of Balakrushna as his only son either being adopted or natural born, there was hardly any reason for gifting away any property by Balarakrushna by execution of deed of gift in the year 1942 and again transferring the land under a sale-deed in the year 1947. The very case set up in the pleading is that for the purpose of maintaining the line of succession and to offer Pinda, Balakrushna kept Netrananda as his son and again it is written as his son i.e., Putrabat which is commonly understood as like son. Thus, the concurrent finding of the courts below that Netrananda is not the son of Balakrushna so as to succeed to his property in no way is found to be suffering from any such infirmity. The courts below have appreciated the evidence in just and proper manner keeping the settled principles of law in mind and then have arrived at the conclusion as above. The same is not found to be a flawed one. 12. Coming to the dispute in so far as the Title Suit No. 228 of 1986 is concerned, the same relates to the settlement plot No. 1557/1611 corresponding to sabik settlement plot no. 1221 under Khata no. 119 and L.R. plot no. 1544 which refers to the consolidation plot no. 653. The properties are said to have not been partitioned by metes and bounds though Balakrushna was in possession of land under plot no. 1221. So, the dispute stands over that very land. In 1970 settlement it has been recorded as plot no. 1557 / 1661 measuring Ac. 0.05 decimals and that has been amalgamated with the land of Jayaram. 653. The properties are said to have not been partitioned by metes and bounds though Balakrushna was in possession of land under plot no. 1221. So, the dispute stands over that very land. In 1970 settlement it has been recorded as plot no. 1557 / 1661 measuring Ac. 0.05 decimals and that has been amalgamated with the land of Jayaram. Admittedly, in the objection case, the said plot has come to be recorded in the name of defendants and that has subsequently been so recorded during consolidation. This recording is said to be behind the back of the plaintiff. In view of the finding that Netrananda is not the son of the Balakrushna coming to succeed his property, the above recording as alleged to have been done behind his back has absolutely no significance for being taken note of. Further, when that also does not from part of the land covered under the sale-deed, Ext. 7 or the gift deed Ext. 8, the claim on that score is thus not held to be well-founded. However, although, it is the evidence of P.W. 1, Harekrushna Pati that the disputed plot of land is the passage which they used for going to their other plots acquired under Ext. 7 and 8; yet that has not been proved and has rather been given a go-bye when this P.W. 1 has asserted that the said land is claimed by them through their father as the legal heir of Balakrushna. Therefore, the defendants legally can never be restrained from exercising their right of ownership in any manner and the plaintiffs of Title Suit No. 228 of 1986 have been rightly held to be having no title over the suit land. In that view of the matter, the lower appellate court has rightly reversed the trial courts finding in that regard in finally holding them as not entitled to the reliefs as claimed. 13. Ext. 7 is a sale-deed executed by Balakrushna in favour of Netrananda and Ext. 8 is a deed of gift, where the donor is Balakrushna and donee is Netrananda. There is no prayer in the suit for declaring these two deeds as void and those are also not challenged by leading evidence on the ground of having been obtained by practicing fraud. 8 is a deed of gift, where the donor is Balakrushna and donee is Netrananda. There is no prayer in the suit for declaring these two deeds as void and those are also not challenged by leading evidence on the ground of having been obtained by practicing fraud. However, the fact remains that the ancestral properties belonging to Aparti, Balakrushna and Jagabandhu have not been partitioned in metes and bounds and those are in separate enjoyment of the parties for connivance wherein Balakrushna and Jagabandhu each are having 8 anas of share. Accordingly it would be thus right to say that the above noted deeds cannot remain valid and effective beyond 8 anas interest of Balakrushna. Thus, I find that the lower appellate court has rightly dismissed the Title Suit No. 228 of 1986 and decreed the Title Suit No. 183 of 1989 restraining the legal representatives of Netrananda from disturbing the possession of the plaintiffs of that suit in so far as the suit land is concerned but not the land covered under Ext. 7 and 8 subject to the 8 annas of interest of the Balakrushna. The aforesaid discussion and reasons accordingly provide necessary answers to all the substantial questions of law which run in favour of dismissal of all the three appeals. 14. Resultantly, the appeals stand dismissed. In the facts and circumstances, there would however be no other as to cost.