P L 0 1953 Dacca 136 (PLP)

GUHA, J.

The defendant No. 1 is the appellant in this appeal against a decision of the learned Subordinate Judge, Third Court, Dacca, reversing a decision of the learned Munsif, 3rd Court, Narayanganj, ,arising in a suit where the plaintiff brought a suit for declaration of his title and recovery of possession on the ground that he was-in possession but dis possessed there from by the defendants Nos. 1 to 22, who were the heirs of one Babar Ali. Plaintiff's case, in short, is that Babar Ali, who was the original owner of this land sold the suit land being Dag No. 1733 of Khatian No. 528 measuring '32 acre of land or in the local measure 121 gandas, to the plaintiff without a written document but delivered possession of the same to the plaintiff in the morith of Pous, 1317 B. S., corresponding to December 1910 January 1911. The plaintiff's case is that he has been in possession since the purchase by mutating his name in the landlord's office and on paying rent therefor. But after Babar Ali died in the month of Magh, 1350 B. S., corresponding to January-February 1944, the defendants No. 1 to 22, who were the heirs and legal representatives of Babar All, dispossessed the plaintiff. Then the plaintiff filed a suit under section 9 of the Specific Relief Act, being Title Suit No. 73 of 1944 for possession but that suit was dismissed. The plaintiff then avers that as the defendants have no title and are merely trespassers and as cloud has been thrown by the decision in the section 9 case, the suit is filed on the 23rd April 1945, for declaration of his title and for recovery of possession of the suit land. In the plaint, the plaintiff not only claims title by virtue of that purchase without document but also on the ground of adverse possession. This suit is contested by defendant No. 1 alone and he pleads that the plaintiff has neither title nor possession and that it is barred by limitation. The defence, in short, is a denial of the plaint case. The defence further is that the suit land has been recorded in the name of their father in the last district settlement, and that the Khatian has been finally published in 1916, corresponding to 1322-1323 B. S. At the close of the argument on the second day the learned Advocates of both parties discovered for the first time that the relevant record of rights of Khatian No. 528 in which the disputed land has been recorded as Dag No. 1733, is not on the record. The learned Munsif, Third Court, Narayanganj, who heard this matter came to the conclusion that the plaintiff had not been able to substantiate his title in the absence of a document and that he had no possession, as it would be apparent from the entry in the settlement record of right. This record of rights is admittedly not on the record. Then the learned Munsif stated that he was, unable to rely on the evidence adduced on behalf of the plaintiff, whereas in his estimate the evidence on behalf of the defendants was more convincing and satisfactory. In that view of the matter, the learned Munsif dismissed the plaintiff's suit with costs. Against that decision, an appeal was taken by the plaintiff in the District Court of Dacca and the matter was ultimately disposed of by the learned Subordinate Judge, Third Court, Dacca, reversing the decision of the trial Court and his decision was based on the finding that in his estimate the evidence on behalf of the plaintiff was more satisfactory and convincing than that on behalf of the defendants and that that oral evidence was corro borated by certain other documents, which were Exhs. 1, 1 (a) and 1 (b) ire the, case, and in that view, he reversed the decision of the trial Court. Hence this second appeal by the defendant No. 1 and this appeal was filed in the High Court on the 2nd May 1947, and in the appeal by the defendant No. 1, the sole plaintiff and the other defendants we're arraigned as respondents. Defendant No. 18 was the respon dent No. 18 in this appeal. It appears from an order of this Court dated the 19th' May 1950, that the appeal abated so far as the heirs of defendant-respondent No. 18 were concerned. The matter came up before me for final hearing yesterday and the plaintiff-respondent raised a preliminary objection that in the absence of the heirs of the defendant-respondent No. 18 the whole appeal abated and it was incompetent. Before I go into the merits, I shall give my decision on this preliminary point. As it has already been seen that this is a suit by the plaintiff against a number of defendants, who are described as trespassers, and their wrongful possession is attributed to them on the same footing or on the same defence ; or in other words the suit is contested by defendant No. 1 only, who is no other than an heir and legal representative of Babar Ali from whom the plaintiff claimed title. From the facts and circumstances of this case it appears, and it is also admitted by the learned Advocates of both parties that the defence of all the defendants Nos. 1 to 22 is common. Now it is argued by the learned Counsel for the plaintiff-respondent tat as defendant No. 18 is not on the record of this appeal, this appeal is incompetent and the whole appeal must fail. In short the argument of the learned Counsel for the plaintiff is that Order XXII, Rule 4 read with Rule 11 of the Code of Civil Procedure will govern this matter and as this appeal has been dismissed against the heirs of the defendant-respon dent No. 18, it is not maintainable. It is an admitted fact that this defendant No. 18 did not appear and contest the suit at any stage. His argument further is that if this Court sees its way to set aside the decision of the lower appellate Court, then there will be a decision, which will be binding only on the parties on the record of this second appeal; but the decree which has been passed against the defendant No 18 in the lower appellate Court will not be vacated so far as the defendant No. 18 or her heirs are concerned. The result, therefore, would be that there will be two anomalous and inconsistent decrees. On the other hand, it is argued by, the learned Advocate for the defendant No. 1 appellant that in view of the provisions of Order XLI, Rule 4 of the Code of Civil Procedure this objection has got no substance. His argument, in short, is that as that Rule provides that a plaintiff or the defendant may file do appeal and if the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants; then in an appropriate case the appellate Court may reverse or vary the decree ,in favour of all the plaintiffs or the defendants as the case may be, and the result of such appeal will entire to the benefit of all the other plaintiffs or defendants, as the case may be. On this question the decisions of the High Courts in joint India have not been uniform but it can be said that the decisions in the Calcutta High Court as well as in the Bombay, Madras and Allahabad High Courts are on the same lines; while contrary opinion was from time to time voiced in the High Courts of Patna and Lahore and some other High Courts. I may point out also that even in the Calcutta High Court all the decisions have not been uniform and to add to more confusion, I may say with great respect to some of the learned judges that they themselves gave contrary decisions on different occasions in the Calcutta High. Court. In this state of the decided cases, I shall only mention some decisions, which are appli cable to the facts of this case, namely, where the question is if in a second appeal by one defendant in which other defen dants are impleaded as respondents but as against the heirs of one of them the appeal abates because his heirs and legal repre sentatives are not brought on the record in time, whether that makes the entire appeal incompetent. In this connection it is necessary to set out the relevant portions of Order XXII, Rule 4 of the Code of Civil Procedure, 1908 (the corresponding section in the Code of 1882 is 368). Order XXII, Rule 4, sub-rule 4 runs as:- Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant." This rule applies to the case of death of defendant and proceeds on the same lines as Rule 3, which regulates the procedure as regards the death of a plaintiff. If no application is made within 90 days (Article 177, Limita tion Act) the suit abates as against the deceased defendant and the only remedy is an application under Order XXII, Rule 9 (2) within 60 days from the date of abatement (Article 171, Limitation Act). This Rule 4 of Order XXII has been amended by Notification, No. 3905 in the Calcutta Gazette, dated the 2nd April 1938, by the Calcutta High Court and a new sub-rule (4) has been added in the following terms:

"(3) Where no application is made under sub-rule (1), the suit shall abate as against the deceased defendant except as hereinafter provided." "(4) The Court whenever, it seems fit, may exempt the plaintiff from the necessity of substituting the legal repre sentative of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing and judgment may in such case be pronounced against the said defendant notwithstanding the death of such defendant, and shall have the same force and effect as if it has been produced before death took place." This amendment is in force in Bengal, East Bengal and Assam. And a similar amendment has been made by the Madras High Court. Again Rule 11 of Order XXII of the Code of Civil Proce dure, 1908 (corresponding to section 582, para 1 of the Code of 1882) runs as : "In the application of this order to appeals, so far as may be, the word `plaintiff' shall be held to include an appellant, the word `defendant' a respondent, and the word `suit' an appeal. A proviso: has been added to this Rule by a notification in the Calcutta Gazette in July 1928, in the following words:

Provided always that where an Appellate Court has made an order dispensing with service of notice of appeal upon legal representatives of any person deceased under Order XLI, Rule 14 (3), the appeal shall not be deemed to abate as against such party and the decree made on appeal shall be binding on the estate or the interest of such party. This proviso is applicable to this Court. A similar provision has been made in Madras by adding a Rule as 11A. It will thus be seen that provision in sub-rule (4) of Rule 4 of Order XXII as amended in 1938 applies to Calcutta, Assam and to this Court. As the words `defendant' and `suit' in Rule 4 (4) of Order XXII include `respondent' and `appeal' as provided in Rule 11 of Order XXII, the provision in that sub-rule will govern the present case. Again Order XLI, Rule 4 provides : "Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be." The tests usually applied to determine whether the appeal abates entirely or quo that respondent, whose heirs and legal representatives have not been substituted; firstly, whether or not the appeal can be decided without passing two contra dictory decrees in the same litigation; and secondly, whether the suit or the appeal can be tried if the deceased person has not been joined either as appellant or respondent. In deter a mining that question in relation to an appeal due regard must be given to the provisions of Order XLI, Rule 4 of the Code of Civil Procedure, because neither the provisions of Order XXII, Rule 4 (4) nor those of Order XLI; Rule 4, exclude each other. It is an accepted rule of construction of a Statute that the words of the Statute must prima facie be given their ordinary meaning and the Court must not shrink from an interpretation which will reverse the previous law because a large portion of our Statute laws are to make lawful that which will not be lawful but for the Statutes. It is also well established that if the choice is between two interpretations, "the narrower of which will fail to achieve the manifest purpose of the legislation, the Courts should avoid such a construction which would reduce the legislation to futility but should rather accept the other or bolder construction on the view that the legislature intended to legislate for the purpose of bringing about an effective and desired-result. We shall, therefore, have to see in this case if in view of the provision of Order XLI, Rule 4, the present appeal will fail entirely because- the 'heirs of the respondent No. 18 have not been brought on the record. I shall notice here some of the decisions of the Calcutta High Court and of some other High Courts touching on this point. In Nayajaddin v. Akamat Ali (A I R 1925 Cal. 411-79 1 C 365.) Suhrawardy and Chotzner JJ., held that if in a suit in ejectment of joint tort-feasors, heirs of one of the defendant tort-feasors are not parties to the first appeal from the decision of the trial Court, the whole suit would fail. Their Lordships followed the decision in Kalidoyal Bhattachar jet v. Nagendra nath Pakrashi (24 C W N 44.) and held that the decree of the first appellate Court became infructuous as it could not be executed against all the defendants. This decision followed Kalidoyal's case (supra) in which the question arose if an appeal in an eject ment suit could be maintained in the absence of the heirs of one of the plaintiffs. That is a different matter from the case in which a defendant having common defence is left out in the appeal. Moreover at that date Order XXII, Rule 4 was not amended by adding the sub-rule (4). I am not con cerned here with cases of non-representation of plaintiff in an appeal from an ejectment suit. I shall confine my remarks only about those cases in which the question arose in connec tion with non-representation of a defendant in an appeal, as in this case. In the case of Siddik Ahmad Kerani v. Azizar Rahman Khan (44 C L J 557.) where in plaintiff's second appeal arising from an ejectment suit, some of the defendants died but their heirs were not brought on the record and it was held by Suhrawardy and Duval JJ., that the whole appeal failed because no effective decree could be passed. That was a decision before the amendment of Order XXII, Rule 4 ; and in that case it does not appear that the attention of the learned judges was drawn to the provisions of Order XLI, Rule 4, Civil Procedure Code. In Arunodoya Chakrabarty v. Muhammad Ali (46CLJ433.) it has been held by M. N. Mukerji and D. N. Mitter, JJ., that in a suit in ejectment all defendants must be impleaded. That was a suit before 1928, when occupancy right was not transferable without landlord's consent. The question that arose in that case was that if the transferee of a portion of an occupancy holding was not impleaded, whether the suit was maintainable. That is a different matter from one before me. So that decision has no application here. But in Karimonnessa Bibi v. Juran Mondal (59CLJ 318.) where against an ejectment decree two defendants appealed before the first appellate Court but one of them died and his heirs were not brought on the record and an express order was passed declar ing that the appeal abated as against that defendant and the contention in the second appeal by the plaintiff that the appeal in the first appellate Court was not maintainable was repelled by M. N. Mukerji, J. on the ground that the defence of all defendants were common and the appeal in the first appellate Court was competent. In the case of Naim-ud-Din Biswas v. Manir-ud-Din Laskar (32 C VV N 299) the facts are that rent of a Khatian was recorded as Rs. 10, when the tenants as plaintiffs, filed a suit under section 106 of the B. T. Act to correct the record by entering Rs. 7 as rent. The Assistant Settlement Officer dismissed the suit but on appeal by the plaintiff tenants, the Special judge decreed the appeal declaring Rs. 7 as the rent. The 4 landlords defendants appealed in the Hig1l Court and the appeal against defendant No. 4 abated as his heirs were not brought on record as appellants in his place. It was held by Cunning and Malik JJ., that Order XLI, Rule 4 of the Code of Civil Procedure would not apply and the appeal was held incompetent relying on Kalidoyal's case (supra) and on the case of Protap v. Durga (9 C W N 1061). The decision in 32 C W N 299 (supra) has been doubted by Rankin, C. J. and Mukerji, J. in Hari Charan Moulik v. Kalipada Chakravarty (I L R 56 Cal. 622

33 C W N 359) and at p. 361, the learned Chief Justice has observed : "It is a very difficult matter when complaint has to be made that the party has not impleaded one of his adversaries." In that case the learned Chief Justice allowed the two surviving plaintiffs to amend the plaint by adding a prayer for joint possession. This case illustrates that the Courts try to avoid dismissal of a suit or appeal, if it lies in their powers to do so within the bounds of Statute law. The legislature is also vigilant in this regard as it will appear from the provisions in Order XXII, Rule 4 (4) and Order XLI, Rule 4 of the Code, of Civil Procedure. The recent decisions of the Calcutta High Court have taken the view that if in an appeal from a suit for ejectment the heirs of a defendant-appellant or respondent is not brought on the record of the second appeal, that will not make the second appeal incompetent. That is the view which has been taken by Jack, J., with whom Mallik, J. concurred (though Mall 1k, J. was a party in the decision in 32 C W N 299 (supra) in the case of Benode Charan Chakravorty and others v. Ramani Kishore Chakravarty (38 C W N 268) Mr. Justice Dwarkanath Mitter (who was a party in the case reported in 46 C L J 433(supra) sitting with Mr.. Justice McNair in the case of Satulal Bhattacharjee v. Asir-ud-Din Sheikh (38 C W N 743) has held in a case where one of the defendants-appellant's heirs were not brought on the record, that it will not make the second appeal incompetent, though the suit was one for ejectment and the appeal was by some of the defendants against the ejectment decree and their Lordships applied the provisions of Order XLI, Rule 4 of the Code of Civil Procedure 4 and in that decision the case of Naim-ud-Din Biswas v. Manir-ud-Din Laskar (supra) was considered but not followed. I may state here with respect to the learned Judges, who, decided Satulal's case, (supra) that the said decision is correct on principle. The same view has been taken by Mr. Justice Sen in the case of Nibaran Chandra Ghose and others v. Pratap Chandra Choudhuri and others (441 C W N 141) and also in the case of Sarat Chandra Narayan Choudhury and another v. Fezuram Nath and others (46 C W N 281). The view of the Calcutta High Court finds support, as I have already stated, in the decisions of Bombay and Madras High Courts. See in this connection the cases of Chintaman Nilkant and another v. Gangabai and others (I L R 27 Bom. 284) and Dhonoo Khando v. Waman '"' Balivant and another (A I R 1945 Bom. 126). The Madras High Court has taken the same view in the cases of Dhuttaloor Subbayya and others v. Paidigantam Subbayya and others (J L R 30 Mad. 470) R. M. M. S. T. Soma sundaram Vairavan Chettiar and others v. Vaithilinga Mudaliar and others (J L R 40 Mad. 846). A pertinent observation of Sir John Wallis in the said decision is worth noting here: "The twentieth and twenty-second defendants died after the appeal had been preferred and their representatives have not been brought on the record. It has been argued that as the appeal has abated as regards these appellants the decree of the lower Court cannot be modified as far as their interests are con cerned. The grounds of appeal in which the appellants have succeeded are common to all the appellants and we think the term's of Order XLI, Rule 4 of the Code of Civil Procedure are wide, enough to cover this case, Chintaman v. Gangabai (supra) and enables this Court to set aside the decree as regards the whole of the plaintiff's claim and not merely in respect of the interest of those appellants whose appeals have not abated. Any other conclusion would lead to incongruity in judicial decisions on the same facts, vide Duttaloor Subbayya v. Paidigantam Subbayya (supra). See also Lakshman Chettiar and, another v. Chidambaram Chettiar and others (J L R 58 Mad. 752). A similar view has been taken in the Allahabad High Court. See Abdur Rahman and others v. Girijesh Bahadur Pal and others (J L R 38 All. 350-A I R 1938 All. 235). This view finds support from the observations of the Privy Council in the case of Misri Lal Naydk v. Mst. Surji alias Ramdulari (53 C W N 508 (511) P. C). Those cases follow on this principle that in view of the provisions of Order XLI, Rule 4 of the Code of Civil Procedure, 1908, such a course is permissible under the law. The previous decisions of the Calcutta High Court before April 1938,. can be supported on this principle, namely, that as it has often been stated by various other Courts that Rule 4 of Order 4 XLI cannot override the provi sions of the Rules of Order XXII. Order XXII, Rule 4, taken along with Rule 11 of that Order governs the procedure so far as the bringing on the record of parties in appeal is con cerned. On the 2nd April 1938, by notification in the Calcutta Gazette sub-rule (4) was added to Rule 4 of Order XXII by the Calcutta High Court and that Rule is applicable in this Court as well as in the Calcutta High Court and in Assam, and a similar amendment of the Rule was made by the Madras High Court. If the new sub-rule (4) of Rule 4 of Order XXII along with Rule 11 of Order XXII are read along with Rule 4 of Order XLI, it appears to me that in circumstances like the present, it will be legitimate t6 hold that the appeal in the present case is maintainable though there has been an order for abatement by this Court so far as the heirs of defen dant No. 18 are concerned. The view that has been taken by the Patna High Court, where there has been no such amendment as in Calcutta, East Bengal, Assam and Madras, is contrary to the decision of the Calcutta, Bombay, Madras, and Allahabad High Courts; and as an illustration, I may refer to the decision of the Full Bench case of the Patna High Court in the case of Rampal Sahu v. Babu Satdeo Jha (J L R 19 Pat. 870). There it has been held by the learned Chief Justice Harries that the wording of Order XLI, Rule 4 suggests that the Rule was intended to apply to cases where all the plaintiffs or defend ants were alive and that only one or more of such plaintiffs or defendants had appealed from the decree. Rule 4 of Order XLI cannot overrule or create an exception to Order XXII, Rules 3 and 11 and in the case of one or more appellants dying, even where a decree proceeds on a ground common to all, the matter must be governed solely by the provisions of those latter Rules. If I may say so with great respect that the Civil Procedure Code as it was in force there in Patna, such obser vations appear to be quite legitimate. If I may say with very great respect that it does not appear to me legitimate to hold that the language of Order XLI, Rule 4 implies that it has got application only when all the plaintiffs and defendants are alive. If I may say with very great respect to the learned Chief Justice that the said general observation will not be applicable here in cases coming before this Court in view of the amendments of Order XXII, Rule 4 of the Code of Civil Pro cedure. Then when Chief Justice Harries went to the Lahore High Court as the Chief Justice, there this question came up before a Full Bench of that Court and when he was sitting with Mr. Justice Mahajan (as he then was) and with Mr. Justice Achhru Ram in the case of Mannak v. Ahmad Ali (A I R 1946 Lah. 399 F. B), and the judgment of the Full Bench was delivered by Mr. Justice Achhru Ram following the decision of the Patna High Court cited above, and the learned Chief Justice Harries and Mr. Justice Mahajan agreed with that view of the Patna High Court. I can only say that neither at Patna nor at Lahore there was such an amendment as to be found in Rule 4 of Order XXII as governing the cases in East Bengal. Therefore for the present purpose, I shall follow the recent decisions of the Calcutta High Court mentioned above, which are consistent with the view expressed by the Madras, Allahabad and Bombay High Courts in preference to those of the Patna and Lahore High Courts. Therefore, I hold that in the circumstances of this case, the second appeal incompetent, though the heirs of the defendant-respondent No. 18 have not been brought on the record. This preliminary objection is thus overruled. Now coming to the merits of the case, the learned Munsif assumed that the entry in the record of rights was in defen dant's favour, which the plaintiff -had failed to rebut and disbelieving the plaintiff's evidence dismissed the suit. But on appeal by the plaintiff, the lower appellate Court came to a different conclusion and found the plaintiff's evidence more satisfactory and convincing than that on behalf of the defendants and declared plaintiff's title and granted his prayer for possession. Hence this appeal by the defendant No.1. This appeal has been argued for sometime and the learned Advocate for the defendant No.1 appellant stresses very much that the judgment of the lower appellate Court is silent about the entry in the record of rights and so it is not a proper judgment of reversal, and I felt myself somewhat impressed with that argument. But when I asked the learned Advocate for the appellant to show me the entry in the record of rights, the same could not be found on the record. In that view of the matter, I think that I am unable to give effect to this conten tion of the learned Advocate for the appellant. Mr. Bhattacharyya for the appellant then argues that the, lower appellate Court has gone wrong in relying on certain documents, which are Exhs. 1, 1 (a) and 1 (b) in the case for the purpose of finding out the plaintiff's title. These are docu ments of persons, who had contiguous lands. The owner of these lands have been examine in this case and their oral evidence is corroborated by the statements in the documents mentioned above. I may state here that I must overrule this contention of Mr. Bhattacharyya on the simple ground that these documents went into evidence without any objection in the trial Court or for the matter of that in the lower appellate Court. If that be so, such an objection should not be taken here in second appeal for the first time, unless these documents are per se inadmissible. If for this purpose any authority is needed, I may cite the cases of Miller v. Babu Madho Das ((1896) L R 23 1 A 106.) ; Preonath Mazumdar v. Durga Tarin Ghose (14 C L J 578.) ; and Ambar Ali v. Lutfe Ali (J L R 45 Cal. 159.). In my view these documents are admissible, because the parties in these documents have been examined in this case. This view of mine finds support in the case of Sheikh Ketab-ud-Din and others v. Nafar Chandra Pathak and others (44 C L J 582.) and also in the case of Mohin Chandra Basak and others v. Kanai Lal Saha and others (33 C W N 1085.). In the latter decision Mr. Justice Suhrawardy was a party. Mr. Bhattacharyya argues that Exhs. 1, 1 (a) and 1 (b) are per se inadmissible. I do not agree with him nor do I agree with the decision in the case of Braja Mohan Das Adhikari v. Gaya Prasad Karam and others (45 C L J 55.) because that decision given by Mr. Justice Suhrawardy is in conflict with a later decision of his Lordship reported in 33 C W N 1085 (supra) cited above which in my opinion lays down the correct principle. Therefore there is no substance in this contention either. Mr. Bhattacharyya for the defendant No. 1 appellant argues then that the lower appellate Court has gone wrong in finding out a case of adverse possession for the plaintiff, which was not in the pleadings nor was any issue raised in that behalf. The plaint in this case clearly shows that the plaintiff has made out a case not only on the basis of his purchase but also off, the basis of adverse possession. His possession is claimed from the year 1910 or 1911 till 1943 and sufficient evidence has been brought on the record to find out a case of adverse possession on behalf of the plaintiff. It will appear from the evidence on the record that the plaintiff's case of adverse possession was not in any way sprung as a surprise to the contesting defendants, and it is apparent also from the trend of the cross-examination of the witnesses on behalf of the plaintiff. In that view of the matter, I cannot hold that there is any substance in this contention of Mr. Bhattacharyya. The case of Bishnu Dayal v. Kesho Prasad and another ((28) 45 C W N 266 P. C.) cited by Mr. Bhattacharyya is, in my opinion, of no avail to his client; because the facts in that case are something different from that appearing in this particular case and in that case a question arose about joint possession and mesne profits. Two other contentions were sought to be raised by Mr. Bhattacharyya, namely, that the learned Subordinate judge has not referred to certain rent receipts (Exh. A series) and that he misread the evidence of D. W. 3 in the case; which matters, I do not think, arise in second appeal for my consi deration, being questions of fact. In this view of the matter, I hold that there is no subs tance in this appeal, and it must be dismissed with costs. A. H. Appeal dismissed.