Pandurang Bhimrao Kulkarni v. Malkappa, Bhimgouda — 1949 DIGILAW 74 (BOM)

Judgement SHAH, J.:- The appellants filed Special civil Suit No. 75 of 1944 in the Court of the Civil Judge (Senior Division) at Sholapur for a declaration that the sale-deed dated 12th May 1926, of Survey No. 50 of Balkavatha in Sholapur Taluka executed by the father of defendants 5 and 6 and the grandfather of the appellants in favour of the father of defendants 1 and 2 was intended to operate a9 a mortgage and consequently they were entitled to redeem the mortgage. The plaintiffs prayed for an account of the mortgage and claimed redemption on payment of the balance remaining due, and farther prayed for an order for payment of the amount found due by instalments. In the alternative, they asked for possession of the property on the ground that they had acquired title to the suit property by adverse possession for a period of more than twelve years as against defendants 1 to 4, i.e. between 1926 and 1940, and that they were wrongfully deprived of possession of the property. The suit was filed by the plaintiffs on an allegation that they were agriculturists and were entitled to the benefit of the Dekkhan Agriculturists Relief Act. The learned trial Judge held that neither the plaintiffs nor defendant 5, who was the father of plaintiff i, nor defendant 6, who was the father of plaintiff 4, were agriculturists, and hence they were not entitled to file the suit claiming benefit of the provisions of the Dekkhan Agriculturists Relief Act. The learned Judge held that the sale, deed of the year 1926 was intended to be a mortgage. He held that the real consideration for the transaction was Rs. 2,000, and that the amounts alleged to have been paid by the plaintiffs towards this transaction were duly proved; but, in view of the finding that the plaintiffs were not agriculturists entitled to the benefit of the Dekkhan Agriculturists Relief Act, be negatived the claim of the plaintiffs to obtain a decree for redemption. He also held that the plaintiffs hid not acquired any title to the property by adverse possession as against defendants 1 to 4 and consequently their alternative claim for obtaining possession of the property also failed. He, therefore, dismissed the plaintiffs suit with coats. The plaintiffs filed the present appeal to this Court. 2. Mr. He also held that the plaintiffs hid not acquired any title to the property by adverse possession as against defendants 1 to 4 and consequently their alternative claim for obtaining possession of the property also failed. He, therefore, dismissed the plaintiffs suit with coats. The plaintiffs filed the present appeal to this Court. 2. Mr. Walawalkar, on behalf of the appellants, contended that the learned trial Judge was wrong in the view he took that the plaintiffs were not agriculturists. He further contended that in any case, even if the plaintiffs were not agriculturists within the meaning of the Dekkhan Agriculturists Relief Act, defendants 1 to 4 being agriculturists, the plaintiffs were entitled to the benefit of the Dekkhan Agriculturists Relief Act and were entitled to show the real nature of the transaction of the year 1926 relying upon S. 10A of that Act. He also contended that even apart from the provisions of the Dekkhan Agriculturists Relief Act, the transaction of the year 1926 could be proved to be that of a mortgages, and that it was as established in the Court below and that the plaintiffs were entitled to redeem the property on the strength of the finding recorded by the Court below. It was finally contended that, by reason of the adverse possession of Laxman [the grandfather of the plaintiffs] who was the transferor of the property, the right, if any, of defendants 1 to 4 and of their predecessors as vendees was extinguishes, and the plaintiffs were entitled to obtain possession of the property on the strength of the title acquired by reason of that adverse possession of Laxman. 3. The property originally belonged to Laxman and he executed a deed dated 12th May 1926, under which ho sold the property to the father of defendants 1 and 2. Defendants 5 and 6 are the sons of Laxman. The plaintiffs contend that they are agriculturists within the meaning of the Dekkhan Agriculturists Relief Act; and are entitled to file a suit for obtaining redemption after taking accounts under the provisions of that Act. [After discussion of evidence on this point the judgment proceeded.] In the circumstances we agree with the learned trial Judge that the plaintiffs have failed to establish there status as agriculturists under the Dekkhan Agriculturists Relief Act. 4. Mr. [After discussion of evidence on this point the judgment proceeded.] In the circumstances we agree with the learned trial Judge that the plaintiffs have failed to establish there status as agriculturists under the Dekkhan Agriculturists Relief Act. 4. Mr. Walawalkar contended that notwithstanding the finding that the plaintiffs were not agriculturists as defined by the Dekkhan Agriculturists Relief Act, they would still be entitled to the benefit of that Act as defendants 1 and 4 were agriculturists. That argument, though admitted prima facia to be a startling argument, was sought to be substantiated on the terms of S. 10A of the Act. It was contended that the expression "any suit" used in S. 10A was wide enough to cover a suit instituted by a non-agriculturist mortgagor and would enable such mortgagor to claim the benefit of the Dekkhan Agriculturists Relief Act if the mortgagee was an agriculturist. 5. It was contended that the expression "any suit" used in S. 10A was wide enough to cover a suit instituted by a non-agriculturist mortgagor and would enable such mortgagor to claim the benefit of the Dekkhan Agriculturists Relief Act if the mortgagee was an agriculturist. 5. Section 10A, Dekkhan Agriculturists Relief Act, in so far as it is material, provides : "Whenever it is alleged at any stage of any suit or proceeding to which an agriculturist is a party that any transaction in issue entered into by such agriculturist or the person, if any, through whom he claims was a transaction of such a nature that the rights and liabilities of the parties there under are triable wholly or in part under this Chapter, the Court shall, notwithstanding anything contained in S. 92, Evidence Act, 1872, have power to inquire into and determine the real nature of such transaction and decide such suit or proceeding in accordance with such determination and shall be at liberty, notwithstanding anything contained in any law as aforesaid, to admit evidence of any oral agreement or statement or unregistered document with to such determination and decision." Under that provision parties to litigation in certain cases are entitled to avoid the bar contained in S. 92, Evidence Act, or the bar of S. 49, Registration Act, or other provisions relating to admissibility of evidence, and the Court trying the suit is entitled to determine the real nature of the transaction in spite of the prohibition contained in those statutes, Before however S. 10A can apply, it is necessary, firstly, that an agriculturist must be a party to a suit; secondly, there must be a transaction in issue which is entered into by such agriculturist or any other parson through whom he claims; and, thirdly, the transaction in issue must be such that the rights and liabilities of the parties to the transaction are triable either wholly or in part under Chap. III, Dekhan Agriculturists Relief Act. Now, the rights and liabilities of the parties to a transaction are triable either wholly or in part under the provisions contained in Ss. 12, 13, 13A, 15A to 15D and 16 contained in chap. Ill of the Act and these sections expressly, or by necessary implication, refer to suits which are described in S. 3, cls. (w), (y), (z) and (a). 12, 13, 13A, 15A to 15D and 16 contained in chap. Ill of the Act and these sections expressly, or by necessary implication, refer to suits which are described in S. 3, cls. (w), (y), (z) and (a). Section 12 enables a Court to make an inquiry into the history and merits of the transaction in issue between the parties in cases which fall within the description mentioned in S. 3, cl. (w), in which the defendant or any of the defendants is an agriculturist, and in suits of the description mentioned in S. 3, cl, (y), and cl. (z), and, for the purpose of inquiring into the history and merits of the cases the Court is entitled to take accounts as provided under Ss. 13 and 13A. Under S. 16 the Court is entitled, at the instance of an agriculturist, to take an account of money lent or advanced to an agriculturist, or due by him to a creditor as the price of goods sold, or on a written or unwritten engagement, and for a decree declaring the amount. Under S. 15D the Court is entitled to take an account of money due from an agriculturist under a mortgage, at the instance of an agriculturist. Suits under Ss. 16 and 15D are suits contemplated by S. 3(a). Suits relating to transactions of such a nature that the rights and liabilities there under are triable wholly or in part under Chap. III are, therefore, some of the suits described in S. 3(a), (w), (y) and (z) and of no other class. The special rules of evidence contained in S. 10A can only apply to a suit in which the transaction in issue is of such a nature that the rights and liabilities of the parties are triable either wholly or in part under chap. III, i.e., the suit is one mentioned in S. 3, cl. (a) or in cls. (y) and (z), or in cl. (w), in which the defendant, or any of the defendants, is an agriculturist. The suits described in S. 3, cl. (y) are "suits for foreclosure of for the possession of mortgaged property, or for sale of such property, or for foreclosure and sale, when the defendant, of any one of the defendants, is an agriculturist." Suits described in cl. (w), in which the defendant, or any of the defendants, is an agriculturist. The suits described in S. 3, cl. (y) are "suits for foreclosure of for the possession of mortgaged property, or for sale of such property, or for foreclosure and sale, when the defendant, of any one of the defendants, is an agriculturist." Suits described in cl. (z) are "suits for the redemption of mortgaged property when the plaintiff, or, where there are several plaintiffs, any one of the plaintiffs, is an agriculturist." Now, a suit in which a claim for redemption of mortgaged property is made and in which the plaintiff, or, where there are several plaintiffs, one or more of the plaintiffs is or are not agriculturists, is not covered by any of the clauses of S. 3, Dekkhan Agriculturists Belief Act, and consequently such a suit would not be contemplated to be tried wholly or in part under the provisions contained in chap, in of the Act, and if it is not contemplated to be so tried, the special rule contained in S. 104 of the Act, which excludes the bar relating to the admissibility of evidence contained in the Evidence Act, the Registration Act and the other statutes, can have no application. It cannot be said that such a suit is one in which the transaction in issue is of such a nature that the rights and liabilities of the parties there under are triable under Chap. III. The fact that the defendant in a suit for redemption of a mortgaged property is an agriculturist would not enable a non-agriculturist plaintiff to obtain the benefit of S. 10A, Dekkhan Agriculturists Relief Act. 6. Mr. Walawalkar however has, in support of his contention, referred us to two decisions of this Court and to illus. (a) to S. 10A, Dekkhan Agriculturists Relief Act. Illustration (a) to S. 10A says : "A landlord sues for possession of land learned by him to an agriculturist. The defendant alleges that he mortgaged the land with possession to the lessor who is entitled to its possession only as such mortgagee and not as owner, and asks that he may be allowed to redeem the mortgage without being ejected. The defendant alleges that he mortgaged the land with possession to the lessor who is entitled to its possession only as such mortgagee and not as owner, and asks that he may be allowed to redeem the mortgage without being ejected. The Court may admit evidence on this allegation, and, if satisfied that it is correct, may decline to eject the defendant as tenant, and allow the suit to be converted into one for redemption of the mortgaged property." That illustration contemplates a suit filed by a landlord for possession of property leased to a tenant, the tenant being an agriculturist; and if the tenant sets up in the course of the trial that the transaction under which the property was transferred to the landlord was a mortgage, the Court is entitled to admit evidence in proof of that allegation, and is entitled to refuse to eject the tenant if he proves his contention and on the contention raised by the defendant the suit may be allowed to be converted into a suit; for redemption of the mortgaged property. This illustration, in our opinion, does not support the submission made by Mr. Walawalkar that suits other than those which are described in Ss. 12, 15D and 10 of the Act are triable under the provisions contained in Chap. III, and to such suits the provisions of S. 10A can apply. The cases contemplated in illus. (a) to S. 10A would, in our opinion, fall within the terms of S. 3, cl. (z) of the Act. That no doubt involves the view that the nature of the suit described in S. 3 should be ascertained by reference to the claim made by the plaintiff as well as the contentions raised by the defendant. That view seems to be consistent with a decision of this Court in Gautam Jayachawd v. Malhari, 40 Bom 397 : (AIR (3) 1916 Bom 206). In that case the plaintiff filed a suit for obtaining possession of certain property relying on a sale deed executed in his favour alleging that the defendant was a tenant under a lease executed by him. In that case the plaintiff filed a suit for obtaining possession of certain property relying on a sale deed executed in his favour alleging that the defendant was a tenant under a lease executed by him. The defendant pleaded that the property was purchased by his father and not by the plaintiff, that the plaintiff was merely a zamindar, that the plaintiff was a money leader who advanced the consideration for purchasing the property, and that the payment of interest on the money so advanced by the plaintiff was secured by a contemporaneous lease. The subordinate Courts admitted evidence under S. 10A, Dakkhan Agriculturists Relief Act, and held that the defendants contention that the plaintiff was merely a money-lender who advanced the money and had obtained a lease to secure payment of the interest was established. In second appeal to this Court it was contended that the nature of the suit under cl. (y) of S. 3, Dekkhan Agriculturists Relief Act, had to be determined only by reference to what was averred in the plaint, and not by reference to the contentions raised by the defendant. Scott, C.J. stated at pages 399 and 400 of the report : "If strictly read, it may ha fairly argued that that cl. (y) [of S. 3, Dekkban Agriculturists Relief Act] should only apply to suits where the plaintiff sues as mortgagee for possession of the mortgaged property. But the Dekkhan Agriculturists Relief Act must be read as a whole, and as part of the Dekkhan Agriculturists Relief Act we have S. 10A which says : (Section 10A is set out). Now the illustrations to that section, namely, illustrations (a) and (a) show that the Intention of the Legislature, when this section was enacted, was to apply the provision to suits by a moneylender suing to enforce either a lease or a sale-deed against an agriculturist though the instrument sued on was really according to the intention of the parties is the nature of a mortgage. That is exactly the case we have here, and therefore, reading cl. (y) of S. 3 by the light of R. 10A, we must conclude that the intention of the Legislature was that the nature of the suit under cl. That is exactly the case we have here, and therefore, reading cl. (y) of S. 3 by the light of R. 10A, we must conclude that the intention of the Legislature was that the nature of the suit under cl. (y) should not be determined by the frame of the plaint, but by the allegations of the parties which raised the question of mortgage or no mortgage." If, therefore, the nature of a suit as contemplated in S. 3 is to be determined by reference to the pleadings, and not merely by reference to the averments made in the plaint, there is nothing in Illustration (a) to S. 10A, Dekkhan Agriculturists Relief Act, which would compel us to hold that that section was intended to apply to suits other than those contemplated to be filed under Ss. 12, 15D and 16 of the Act. 7. Mr. Walawalkar has also referred us to Ballappa v. Irappa, 24 Bom LR 406 : (AIR (9) 1922 Bom 415). The head-note in that case is : "Section 10A, Dekkhan Agriculturists Relief Act, is not limited to suits mentioned in S. 3, cls. (w), (y) or (z). It applies to every suit where an agriculturist is a party, and the transaction in issue entered into by such agriculturist is of such a nature that the rights and liabilities of the parties there under are triable wholly or in part under Chap. III of the Act." In that case a suit was filed by the plaintiff seeking to recover possession of a half share by partition in certain lands. To that suit were impleaded certain alienees of portions of the lands claimed to belong to the joint family of the plaintiff and defendants 1 to 3. It was contended by the plaintiff that the alienation by defendants 1 to 3 in favour of defendant 4, though ostensibly a sale, was in the nature of a mortgage, and he sought to prove an oral agreement that the alienation was to be treated as a mortgage by relying upon the terms of S. 10A, Dekkhan Agriculturists Relief Act. The learned Judges of the Courts below permitted oral evidence to be led under S. 10A to prove that the transaction was notwithstanding its apparent tenor a mortgage. In appeal that view was confirmed by this Court. The learned Judges of the Courts below permitted oral evidence to be led under S. 10A to prove that the transaction was notwithstanding its apparent tenor a mortgage. In appeal that view was confirmed by this Court. Sir Norman Macleod, C.J. in that Case held that even though the suit was for partition, and it was resisted by defendant 4 on the ground that the property in suit had been sold to him, the Court was entitled to take evidence under S. 10A with regard to the real nature of the transaction relating to the property alleged to be sold to defendant 4 and decide whether or not, the transaction was a sale as contended for by him or a mortgage as alleged by the plaintiff, and having found that it was not a sale but a mortgage, the Court was entitled to treat the case as against defendant 4 as a suit for redemption. Coyajee, J. in a concurring judgment observed (p. 409) : "For, whereas the words used in S. 10A are any suit or proceeding to which an agriculturist is a party, those used in Ss. 11 and 12 are suit of the description mentioned in S. 3. That this variation of language is not attributable to a desire of improving the style or of avoiding repeated use of the same words, becomes obvious on a mere reading of Ss. 11 and 12 themselves. In my opinion, therefore, S. 10A has a wider operation than what is contended for on behalf of the appellants; and this construction best harmonizes with the object which the Legislature had in view in passing the enactment." The view which appealed to the Court was that even though the suit as filed was not triable as a suit of the description mentioned in S. 12 or S. 15D or S. 16, Dekkhan Agriculturists Relief Act, it was open to the Court to allow evidence to be led contrary to the provisions of S. 92, Evidence Act, or S. 49, Registration Act, or other statutory provisions which prohibit leading of evidence contrary to the terms of written documents, because the expression used in S. 10A "any suit," was not "confined to that limited class of suits described in S. 3 of the Act." With respect, we are unable to accept the ground which prevailed with the Court. In that case, as stated by Sir Norman Macleod, C.J., the suit as against defendant 4 was a suit for redemption, and if it was a suit for redemption it clearly fell within the terms of S. 3, cl. (z), and it was a suit in which the transaction in issue was of such a nature that the rights and liabilities were triable under the provisions of Chap. III, Dekkhan Agriculturists Relief Act. The suit was therefore one qua defendant 4 triable under the provisions of Chap. III of the Act, and S. 10A applied. The observation of the learned Judges that S. 10A had a wider operation was therefore clearly not necessary for the decision of the case. 8. That view is supported by a subsequent decision of this Court reported in Tarachand v. Bala, 40 Bom LR 974 : (AIR (25) 1938 Bom 478). That was a case in which the plaintiff, who were agriculturists, sued for a declaration that a rent-note passed by them to the defendant, a money lender, was in reality a transaction of sale. The plaintiffs sought to prove their case by adducing evidence of a contemporaneous oral agreement which sought to contradict the terms of the rent-note. A Division Bench of this Court held that the plaintiffs suit as framed did not fall within the purview of chap. III, Dekkhan Agriculturists Relief Act and therefore of S. 10A of the Act, and it was not open to the plaintiffs to prove the alleged-oral agreement. In the course of his judgment N.J. Wadia, J. observed (p. 978) : "The special privilege, which S. 10-A confers on an agriculturist of alleging an oral agreement different from the written one evidenced by a document, in spite of the provisions of S. 92, Evidence Act, is restricted strictly to suite which fall under Chap. III and would not be available to parties whose suits do not fall within that Chapter." Divatia, J. in a concurring judgment also made similar observations. Both the learned Judges distinguished the case in Hallappa v. Irappa, 24 Bom LR 406 : (AIR (9) 1922 Bom 415) on the ground that it was a case which fell within the terms of S. 3, cl. (z), Dekkhan Agriculturists Relief Act, and was therefore covered by the provisions of s. 12 and the rights and liabilities of the parties were triable under Chap. (z), Dekkhan Agriculturists Relief Act, and was therefore covered by the provisions of s. 12 and the rights and liabilities of the parties were triable under Chap. III of the Act. 9. The true test, in our opinion, for the application of S. 10A, Dekkhan Agriculturists Relief Act, is whether the suit is one in which the transaction in issue [to which an agriculturist is a party and the requirements of the proviso to the section are satisfied] is of such a nature that the rights and liabilities of the parties there under are triable wholly or in part under Chap. III, and foe the purpose of ascertaining whether the suit falls within that description, the averments made in the plaint as well as the contentions raise by the defendant should be considered. On that view it cannot be said that S.10A applies to suits other than those which are contemplated to be filed under S. 3. Section 10A, in our opinion, instead of having a wider operation as stated by Coyajee, J. in Hallappa v. Irappa, 24 Bom LR 406 : (AIR (9) 1922 Bom 415) has a limited operation inasmuch as it cannot apply to suits of the description mentioned in S. 3, cl. (x), or to suits, though falling within the terms of cl. (w) of S. 3, do not fall within the terms of S. 12. 10. In Bhukhandas Valabdas v. Chhaganlal Dayaram, 45 Bom LR 851 : AIR (31) 1944 Bom 32) decided by Lokur, J. the head-note is as follows : Section 10-A, Dekkhan Agriculturists Relief Act, 1879, requires three essentials first, that the transaction must be entered into be an agriculturist or a person through whom the agriculturist claims, secondly, "that the transaction must be of such a nature that the lights and liabilities of the parties under that transaction are triable under Ch. III of the Act, and, thirdly, that one of the parties to the suit mast be an agriculturist. It is not necessary that the plaintiff who wants to take the benefit of the section must himself be an agriculturist or must be a party to the transaction." The appeal in that case arose out of a suit filed to set aside a summary order passed raising an attachment of certain immovable property in execution proceedings. It is not necessary that the plaintiff who wants to take the benefit of the section must himself be an agriculturist or must be a party to the transaction." The appeal in that case arose out of a suit filed to set aside a summary order passed raising an attachment of certain immovable property in execution proceedings. The plaintiff therein contended that an ostensible sale deed executed by the father of defendants 2 and 3 in favour of defendant 4 was in reality a mortgage and not a sale. In second appeal Lokur, J. took the view that the mere circumstance that one of the defendants was an agriculturist and there was an allegation that the transaction between the defendants was of the nature of a mortgage was sufficient to attract the applicability of S. 10A, Dekkhan Agriculturists Relief Act. The learned Judge purported to follow the decision in Hallappa v. Irappa, (24 Bom LR 406 : AIR (9) 1922 Bom 415) without any further consideration. The suit in that case was a suit which could not fall within the description of suits mentioned in R. 3, Dekkhan Agriculturists Relief Act nor were there allegations made by the plaintiff and the defendants to bring the suit within the provisions of S. 12, or S. 15D, or S. 16 of the Act. The learned Judge did not refer in his judgment to the question whether the transaction in issue in the suit was of such a nature that the rights and liabilities of the parties under the transaction were triable wholly or in part under chap. III of the Act. Neither on the plaint as filed by the plaintiff nor on the contentions raised by the defendants could it be said that the suit was of such a nature that the rights and liabilities of the parties under the transaction were required to be tried under Chap. III of the Act. In our opinion Lokur, J. ignored important words in the section which constituted a condition precedent to the applicability of the rule contained in S. 10A, and relied upon what, in our opinion, ace mere dicta in the case in Hallappa v. Irappa, (21 Bom LR 406 : AIR (9) 1922 Bom 415). In our view, the case in Bhukhandas Valabdas v. Chhaganlal Dayaram, 45 Bom LR 854 : (AIR (31) 1944 Bom 32) is not correctly decided. 11. In our view, the case in Bhukhandas Valabdas v. Chhaganlal Dayaram, 45 Bom LR 854 : (AIR (31) 1944 Bom 32) is not correctly decided. 11. In the present case none of the plaintiffs is on the finding recorded by the learned trial Judge and accepted by us, an agriculturist. The suit filed by them does not fill within the terms of R. 12, Dekkhan Agriculturists Relief Act, and consequently the transaction is not of such a nature that the rights and liabilities of the parties under the transaction are triable under the provisions of chap, in of the Act. It is difficult therefore to accept Mr. Walawalkars contention that the mere fact that one of the parties to this litigation is an agriculturist is sufficient to enable the plaintiffs, who are not agriculturists, to claim the benefit of S. 10 of the Act. Before S. 10A can apply to a suit foe redemption it must be established that the plaintiff who claims redemption is an agriculturist. If the plaintiff fails to do so, S. 10A can have no application. On that view, the second contention raised by Mr. Walawalkar must also fail and the plaintiff cannot rely upon evidence apart from the deed to establish that the transaction evidenced there, by is a mortgage. 12. It was further contended by Mr. Walawalkar that Laxman, grandfather of the plaintiffs, remained in possession of the suit property from the year 1926 to the year 1940 even after the execution of the sale-deed. Mr. Walawalkar contended that the possession of Laxman must be deemed to be adverse as against the rights of the vendee, and as the present suit was filed within twelve years from the date of dispossession by defendants 1 to 4, the plaintiffs were entitled to obtain a decree in ejectment against them. Now, there is nothing to show that the possession of Laxman after the execution of the sale deed in the year 1926 till his death some time after the year 1938 was adverse. Now, there is nothing to show that the possession of Laxman after the execution of the sale deed in the year 1926 till his death some time after the year 1938 was adverse. A person alleging that he has become owner of immovable property by adverse possession must establish that he was in possession of the property peaceably, openly, and in assertion of a title hostile to the real owner.Not only that Laxman did not assert a hostile title against the father of defendants 1 to 4, but he negotiated with the latter on the footing that the transaction of the year 1926 was in the nature of a mortgage. He made several payments towards that transaction and ultimately in the year 1938 filed a suit for accounts alleging that the transaction of the year 1926 was a mortgage. This conduct of Laxman cannot be deemed to be conduct of a person who claimed to remain in possession in assertion of a hostile title. Therefore the contention that the title of defendants 1 to 4 in the property was extinguished by reason of adverse possession of Laxman must also fail. 13. The appeal, therefore, will be dismissed with costs. Appeal dismissed.