JUDGMENT.- This Second Appeal has been preferred by the first defendant in a suit against whom the Courts below have concurred in granting relief to the plaintiffs for restoration by the first defendant of a latrine which the first defendant removed. The injunction granted is a mandatory one for the construction of the latrine at its original place. A brief narration of the facts of the case and the proceedings leading up to the second appeal are necessary for the appreciation of the interesting question raised on behalf of the appellant, the first defendant in the case. The first defendant and the first and second plaintiffs are now owners of adjoining houses. Originally the property was owned by their family and had a single door No. 73-A, in the occupation of the first plaintiff, the father of the second plaintiff and the father of the first defendant. The property is situated within the municipal limits of Tiruchirappalli and north of the residential portion is a private lane belonging to the family. In this lane, at the eastern extremity, there had been a latrine for the use and enjoyment of the family. The first defendant’s father divided himself off from his brothers under Exhibit A-1 in 1917 and later the first plaintiff and the second plaintiff’s father, got separated under the partition deed Exhibit A-3, dated 9th September, 1926. Under these partitions the first defendant became entitled to door No. 3, the first plaintiff to door No. 4, and the second plaintiff, to door No. 5. The latrine above referred to which had been in existence prior to the partition was enjoyed by the sharers in common, the first defendant having one-third share therein and the plaintiffs, the remaining two-third share as between themselves. Exhibit A-3 refers to the rights of the first plaintiff and second plaintiff’s father, each to a one-third right to the latrine in question. It is the finding of the Courts below that till 14th August, 1959, this latrine had been in the common enjoyment of the three owners of door Nos. 3, 4 and 5 above referred to, the lane being kept in common, that is, the parties are tenants-in-common of the lane and latrine and the same is for the benefit of the use of the three tenants-in-common. 3, 4 and 5 above referred to, the lane being kept in common, that is, the parties are tenants-in-common of the lane and latrine and the same is for the benefit of the use of the three tenants-in-common. While thus the latrine had been serving the need of the three houses, the first defendant appears to have moved the Tiruchirappalli Municipality for the removal of the suit latrine on the ground that its existence was a nuisance. He had not apprised his tenants-in-common, the plaintiffs, of this move of his. On 15th August, 1959, the first defendant started pulling down the suit latrine at about 6 a.m., despite the protest of the plaintiffs on the pretext of a notice issued by the municipality. As found by the Courts below, the first defendant appears to have manoeuvred to get himself served with the notice in question before 6 a.m. on 15th August, 1959, and a similar notice Exhibit B-2 was served on the first plaintiff only at 9 A.M. Meanwhile the first defendant who it is clear has made the notice a pretext had brought about a fait accompli destroying the latrine by pulling down the two walls in the south and west. As per the commissioner’s report, it appears to be an open and with not too high walls on the south and west with the compound walls with north and east enclosing it. The plaintiffs sent notice to the first defendant claiming its restoration. They also issued a notice to the Tiruchirapalli Municipality for cancellation of the notice Exhibit B-2 which they issued in the matter. The plaintiffs suddenly and without adequate notice deprived of an essential amenity and thrown on the indulgence of the owner of the adjoining house door No. 6 for the use of his latrine, came forward with this suit claiming relief against the first defendant, the present appellant, for restoration of the latrine. The Tiruchirappalli Municipality by its executive authority the Commissioner, was impleaded as the second defendant. The Courts below, on an examination of the notice Exhibit B-2 which purports to be under sections 39, 42 and 134 of the Madras Public Health Act III of 1939, the relevant provisions of the Act in question, and the available evidence on record, held that the order for the removal of the latrine was illegal. The Courts below, on an examination of the notice Exhibit B-2 which purports to be under sections 39, 42 and 134 of the Madras Public Health Act III of 1939, the relevant provisions of the Act in question, and the available evidence on record, held that the order for the removal of the latrine was illegal. It has been held that there is no necessity for the plaintiffs to seek cancellation of the order specifically. Finding that the appellant was not justified in demolishing the suit latrine without the consent of his co-tenants, mandatory injunction was granted as prayed for. The municipality had raised a special plea as to the maintainability of the suit in the absence of sanction under section 142 of Madras Act III of 1939. While the trial Court held that in the circumstances the section was not a bar to the suit, on an independent appeal by the municipality, Appeal No. 358 of 1961, the learned Subordinate Judge upheld the plea of the municipality that the said section was a bar and dismissed the suit as against the municipality. The appeal by the first defendant against the decree for injunction against him in which as may be expected he had impleaded the municipality also as a party respondent, was dismissed. The principal point urged by Mr. A. V. Narayanaswami Iyer appearing for the appellant is that, as the suit has been dismissed as against the municipality the decree for mandatory injunction against the first defendant also cannot be maintained. Learned Counsel seeks to sustain this contention on several grounds. It is contended that the appellant’s act of demolition is in obedience to the order of a statutory authority. The act has, therefore, legal sanction behind it and failure to obey the order could be visited with penalty by the municipality. Learned Counsel submits that even assuming that the appellant had made the notice by the municipality a pretext for his action, still as the notice by the municipality stands, the suit against the municipality having been dismissed restoration of the latrine would violate the notice which has become final. It is urged that even though the Court might have held that the notice was illegal and ultra vires, the municipality is not bound by the findings in the suit, which as against the municipality has been dismissed. It is urged that even though the Court might have held that the notice was illegal and ultra vires, the municipality is not bound by the findings in the suit, which as against the municipality has been dismissed. In any event, it is contended, there is likelihood of his being subject to penal consequences, if the latrine is restored by him there having been no final adjudication of the invalidity of the notice binding on the municipality. In such circumstances it is submitted that the Court would not grant the discretionary relief of injunction. It is also contended that the parties being tenants-in-common relief by way of mandatory injunction is not an appropriate relief and at the most the plaintiffs can claim and ought to be given only damages, and this they had not claimed. Let me examine the contention that there was a legal sanction for his act and he was obeying the order of a statutory authority. Admittedly the notice by the municipality has been issued at the instance of the appellant. He had sent the petition to the municipality complaining that the latrine in question was a nuisance. The notice issued by the appellant has not been exhibited. The lower appellate Court rightly remarks, on the absence of evidence of the authority which inspected the latrine to prove that the latrine was a nuisance to the public. The latrine in question had been in existence for over 45 years serving the needs of the three houses in question. No doubt as stated this latrine is in the proximity of the appellant’s property at the extreme and of the common lane and the occupants of door Nos. 4 and 5 have to walk to it over the common lane in front of the appellant’s house. It appears that the first defendant had put up a latrine for himself in his own house and his intention is clear that the occupants of door Nos. 4 and 5 belonging to the plaintiffs should not come and use the latrine just in front of his property. No doubt the Commissioner appointed in this case has noticed that the latrine is away a little bit from the residential quarters of the three houses. 4 and 5 belonging to the plaintiffs should not come and use the latrine just in front of his property. No doubt the Commissioner appointed in this case has noticed that the latrine is away a little bit from the residential quarters of the three houses. He has reported that considering the situation, size and surrounding of the suit latrine which when he inspected had been pulled down and that of the three houses it appeared to him that the demolished latrine would serve the needs of the inmates of the three houses in convenient and comfortable manner. No doubt the learned Commissioner does not say whether it would be a nuisance or otherwise. The notice, Exhibit B-2, purported to have been issued under sections 39, 42 and 134 of the Madras Public Health Act runs thus: " As the existing latrine in your building No. 4 of Narasu Pillai Lane, Division No. 8, is causing inconvenience and nuisance to the general public, you should execute the undermentioned work within 15 days of the receipt of this notice. You should construct separate latrine for each house according to Rules of Hygiene. You should remove the common latrine now existing. In default prosecution will be launched against you under section 134 of the Act." Now, to take up the relevant sections of the Act, section 39 is under Chapter V of the Act headed Sanitary Conveniences. It reads: " 39 (1) If any building intended for human habitation is without any sanitary convenience or if, in the opinion of the Health Officer, the sanitary convenience or conveniences provided therein are insufficient, having regard to the number of persons occupying the building, or are inefficient, or are objectionable on sanitary grounds, he may, by notice in writing require the owner of such building - (a) to provide such santiatry conveniences or such additional sanitary conveniences and in such positions, as may be specified in the notice.........." Section 40 providing for mode of construction of latrines, runs: "40 (1) All latrines shall - (a) be so constructed as to screen persons using the same ad the filth from the view of persons passing by or residing in the neighbourhood ; and (b) be maintained, repaired, altered and used in accordance with the rules and by-laws made under this Act. (2) If any latrine opening on any street, whether such latrine be erected before or after the commencement of this Act, is so placed or constructed as to be a nuisance or offensive to public decency, the Health Officer may, by notice in writing, require the owner to remove it or to carry out such improvements therein and within such time as may be specified in the notice. (3) When any latrine is used in common by the occupiers of two or more premises or by the members of two or more families, no person shall injure or improperly foul any such latrine or anything used in connection there with." Other relevant sections are found under Chapter VI headed: Abatement of Nuisances. Section 41 defines nuisance and under clause (2) a latrine which is so foul or in such a state as to be prejudicial to health or a nuisance will be nuisance under that Chapter. Section 42 provides for detection of nuisance by inspection from time to time with a view to ascertain what nuisances exist and calling for abatement of the nuisance under the powers conferred under that Act. It also provides that the authority shall enforce the provisions of the Act in order to abate such nuisance. Section 43 enables any person aggrieved by a nuisance in any local area to give information of the same to the Health Officer or any other officer for the public health establishment of the local authority. It also provides that the authority shall enforce the provisions of the Act in order to abate such nuisance. Section 43 enables any person aggrieved by a nuisance in any local area to give information of the same to the Health Officer or any other officer for the public health establishment of the local authority. Section 44 is another relevant section which runs: " If the Health Officer is satisfied, whether upon information given under section 43 or otherwise of the existence of a nuisance, he may, by notice require the person by whose act, default or sufferance the nuisance arises or continues, or, if that person cannot be found, the owner or occupier of the premises on which the nuisance arise or continues, to abate the nuisance and to execute such works and take such steps as may be necessary for that purpose: Provided that- (a) where the nuisance arises from any defect of a structural character, the notice shall be served on the owner of the premises ; and (b) where the person causing the nuisance cannot be found and it is clear that the nuisance does not arise or continue by the act, default or sufference of the owner or the occupier of the premises, the Health Officer may himself forthwith do what he considers necessary to abate the nuisance and to prevent a recurrence thereof." nuisance Penalties are provided for contravention of orders, and under section 136 the decision of the Health Officer against which an appeal is not otherwise provided for shall be subject to such appeal as may be prescribed. Now, with reference to the notice Exhibit B-2, it will be seen that section 39 does not provide for demolition of the latrine. If the sanitary convenience provided is insufficient or inefficient or otherwise objectionable on sanitary grounds the authority can direct the provisions of additional sanitary convenience and in such positions as may be specified. The authority may also direct structural or other alterations. The notice in question does not show that the latrine was insufficient or inefficient or objectionable on other sanitary grounds. The need for construction of separate latrine and removal of the common latrine is stated to be its causing inconvenience and nuisance to the general public. The authority may also direct structural or other alterations. The notice in question does not show that the latrine was insufficient or inefficient or objectionable on other sanitary grounds. The need for construction of separate latrine and removal of the common latrine is stated to be its causing inconvenience and nuisance to the general public. As already stated and pointed out by the Courts below, it is at the extreme end of a blind private lane The latrine in question does not come under section 40 (2) not being so placed or constructed as to be a nuisance or offensive to public decency having an opening on a public street. It is only under section 40 (2) in respect of a latrine opening on any street the health officer may by notice in writing require the owner to remove it or carry out such improvements therein within the time specified. Section 42 is the empowering section for abatement of nuisance. Here also the requirement can only be to abate the nuisance and execute such works and take such steps as may be necessary for that purpose. The authorities cannot ask in the circumstances of the present case a demolition of the walls in question which the appellant has carried out. The construction in question is on private property. The Act gives the health authority powers for suppression of nuisance or conditions interfering with public health and these powers may be justified as restraint in the use and enjoyment of property in the interests of the general public, provided they are exercised reasonably. The authority, without deciding whether there is a nuisance, could not give directions as to how it has to be abated and it must be deemed to be exercising quasi-judicial powers in that determination. Ex parte determination without reference and notice to the persons affected can have no finality and are open to question. A mere declaration by a local authority that a thing is a nuisance will not make it so and the assertion when challenged must be established. Ex parte determination without reference and notice to the persons affected can have no finality and are open to question. A mere declaration by a local authority that a thing is a nuisance will not make it so and the assertion when challenged must be established. The Court can always examine the legality or validity of the notice issued by the authority, and if the notice is ultra vires it need not be complied with-vide The Law of Municipal Corporations in British India by P. Doraisami Ayyanger, Second Edition, pages 474 and 476 and Sayad Jafir Saheb v. Sayad Kadir Rahiman1, and In re Khimji Jairam2. The appellant who seeks umbrage under the notices by the municipality must establish the validity of them. Ex facie they cannot be maintained. They have been issued without any reference to the plaintiffs and need according to the Courts below is not apparent. The plaintiffs are entitled to challenge the same and it may get established that there was no Case for the action required or, that the abatement as directed and steps ordered, are beyond the limits of what was reasonably necessary in the circumstances. If in fact the municipality could not have issued these notices in the circumstances, the appellant cannot rely upon the same for legalising his action. This is apart from the other considerations that will be adverted to presently which are sufficient for disposal of this appeal. For one thing assuming that the latrine as such is a nuisance, there is no need to pull down the walls. The structure as such is not stated to be a nuisance. It is common property in the common enjoyment of the three tenants-in-common. The removal of the latrine does not necessarily involve destruction or pulling down of the walls. The construction as such could have been put to some other use, or the parties if feasible may remodel it to conform to requirements of sanitation. What we are now concerned with in this case is whether the appellant was justified in pulling down the two walls in question. In this connection reference may be made to a decision of this Court in Rama Row v. Martha Sequeira3. In that case the defendant began the construction of a latrine on his premises in compliance with the direction of the municipality, which had approved the site of the latrine. In this connection reference may be made to a decision of this Court in Rama Row v. Martha Sequeira3. In that case the defendant began the construction of a latrine on his premises in compliance with the direction of the municipality, which had approved the site of the latrine. The plaintiff, a neighbouring house owner, sued for injunction restraining the defendant from putting up a latrine on the spot in question. It was found that the latrine would be a great nuisance to the plaintiff and that the defendant could construct a latrine in another portion of his premises so as to avoid injury to the plaintiff. With reference to the injunction granted by the Courts below for removal of the building itself, this Court observed: “ All that the plaintiff can complain against is the use of the building as a latrine, for that alone constitutes the nuisance. She has no right to object to the building itself, which can be utilized for other purposes which would not cause any nuisance nor injure the inmats of her house. She was not justified in coming to Court with a prayer for the removal of the building. To that extent the decree must be modified and, as we understand that the walls have been pulled down, she should be directed to restore the building at her own expense.” In the present case even assuming that there is a valid direction by the municipality for the removal of the latrine, that does not require the pulling down of the walls of the latrine and demolishing it. Even if such a direction had been given, it would be ultra vires of the municipality under the provisions invoked and would be open to challenge. It is plain, therefore, that the appellant cannot rely upon the municipal notice to justify his high-handed action in pulling down the walls and leaving the enclosure open. The next aspect of the matter is this. The municipal notice had given fifteen days’ time for execution of the work. It will be open to the parties affected to prefer an appeal and establish that there was no nuisance in fact. They can also show that the requirements are ultra vires of the powers of the Municipality. If the Municipality persists in its view the affected party can move the civil Court for necessary relief following the procedure prescribed by law. They can also show that the requirements are ultra vires of the powers of the Municipality. If the Municipality persists in its view the affected party can move the civil Court for necessary relief following the procedure prescribed by law. If the affected party is so advised and if he is confident of his position he may defy the notice and plead ultra vires of the requirements in any action that may be taken by the municipality. But conscious evidently of the steps open to the plaintiffs to ward at the threatened removal of the latrine, the appellant pulled down the structure at 6 a.m. Notice in question is served on the plaintiff only at 9 a.m. Somehow the appellant has managed to get himself served in advance to make a pretext of the notice. There is absolutely no necessity or need to pull down the structure immediately on receipt of the notice when it is open to the party to contest the validity of the notice. At any rate the plaintiffs have at least fifteen days time to take necessary action. It follows therefore, that when the structure was pulled down the first defendant had absolutely no justification. His action lacked bona fides. In the circumstances the dismissal of the suit as against the municipality is, in my opinion, no bar to the grant of relief against the first defendant for restoration of the structure to its original position There can be no contravention of any valid order of the municipality by restoration of the status quo in respect of the building in question. It has not been argued before me that for restoring these old walls to the former position any sanction of the municipality as such would be required. Learned Counsel for the appellant contends that injunction, particularly mandatory injunction, is a matter of discretion and this is not a case in which the exercise of the discretion in favour of the plaintiffs is called for. For one thing the Courts below have exercised their discretion and granted the injunction. The question for consideration will, therefore, be whether they had jurisdiction to grant an injunction in the matter or whether the exercise of the discretion has contravened any established principles. For one thing the Courts below have exercised their discretion and granted the injunction. The question for consideration will, therefore, be whether they had jurisdiction to grant an injunction in the matter or whether the exercise of the discretion has contravened any established principles. The appellant who pleads against the grant of equitable relief cannot point out any conduct or act on the part of the plaintiffs disentitling them to the grant of injunction. On the contrary, his action has been high-handed deliberately hasty, and intended to show a fait accompli. Such a conduct, in my view if law permits, requires the issue of mandatory injunction directing the guilty party to restore the structure to its original position. If the plaintiffs had had time to approach a Court of law before the walls were pulled down I am certain that the Court would have granted the plaintiffs interim relief. The appellant foiled them by proceeding to destory the structure early in the morning in spite of the protest even before the plaintiffs were served with notice by the municipality. He is a tenant-in-common with the plaintiffs and had no exclusive right or possession in the structure. The property was used jointly by all the three tenants in question. The following observations of Lord Selborne, L.C., in Goodson v. Richardson1, are very instructive as to when discretion should be ‘exercised: “Now, it is undoubtedly true that where a legal remedy exists, this Court, in determining whether it Will leave the parties to that legal remedy or will interfere by way of injunction, has regard to the circumstances of each particular case, and amongst those circumstances are, no doubt, the time at which the work was executed, and also what will be the result to the parties of the interference of the Court, on the one hand, or of leaving them to their legal rights and liabilities, on the other hand. But I apprehend that the Court has nowhere said that when a trespass of this kind has been committed under circumstances at all similar to those in the present case, the mere fact of the trespass being complete at the time when the bill was filed will prevent an injunction against the continuance of the trespass”. Learned Counsel for the appellant next contended that the parties being tenants in-common injunction is rarely issued as appropriate relief between tenants-incommon. Learned Counsel for the appellant next contended that the parties being tenants in-common injunction is rarely issued as appropriate relief between tenants-incommon. Reference is made to the decision in Lachmeswar Singh v. Manowar Hossein2 where the Judicial Committee has observed that joint property being used consistently with the continuance of joint ownership and possession, without exclusion of the cosharers and who did not join in the work, there is no encroachment on the rights of any of them, as regards common enjoyment, so as to give ground for a suit. But the present is a case where the plaintiffs are deprived of their accustomed use and enjoyment of the property by the destruction of the subject-matter held in joint tenancy. In co-tenancy and partition by Freeman, Second Edition, at page 413, after observing that injunctions are but rarely granted to restrain a co-tenant from exercising control over the joint property, it is observed: "To authorise an injunction, it must appear either that the defendant is insolvent, and will therefore be unable to indemnify the complaining co-tenant, or that the act sought to be enjoined will effect a partial or entire destruction of the estate. A Court of equity will not interpose to stay waste unless it be of a malicious character or of so unusual and unreasonable a nature as to savour of a wanton destruction of the estate." At page 684 of the same book it is stated thus: " An injunction may, in some instances be granted on the application of one co-tenant to restrain another from committing or continuing some act destructive to the common estate." The act of the appellant in this case in the circumstances in which he pulled down the walls in question it goes without saying is malicious and wanton. Here is a destruction of the common estate with a view to prevent its enjoyment and accustomed user by the other tenants-in-common. Reference was made by learned Counsel to a decision of this Court in Venkatarama Sastri v. Venkatanarasayya 1. It is suggested that only when there was interference with the rights to water or such similar privileges the Court will grant relief by way of injunction. I fail to see any help for the appellant from that decision. Reference was made by learned Counsel to a decision of this Court in Venkatarama Sastri v. Venkatanarasayya 1. It is suggested that only when there was interference with the rights to water or such similar privileges the Court will grant relief by way of injunction. I fail to see any help for the appellant from that decision. In that case several co-sharers of an agraharam were entitled to the water of a tank in the same proportion in which they owned land in the agaraharam. One of the co-sharers used the water of the tank to convert some of his dry lands into wet lands contrary to the customary user of the water of the tank and thereby caused damage to the other co-sharers. This Court observed that the other co-sharers can get not only damage but also injunction to restrain the user; The view of the lower appellate Court that if a joint owner of a tank felt aggrieved his remedy was a suit for partition on the analogy of the joint ownership of the land, was held to be too absurd an argument to merit serious notice. Learned Counsel for the respondents drew my attention to some of the cases where in respect of party walls injunction had been granted as between the tenants-in-common of the walls. They cannot be of much assistance to this case. In Asutosh Roy v. Rampen Boalia Municipality2, the plaintiff and the defendant municipality were in joint possession of a certain piece of land. The municipality conceived the idea of constructing houses for accommodation of sweepers and in spite of the protest by the plaintiff as amounting to nuisance to the neighbourhood it proceeded with the work. The aggrieved plaintiff filed the suit claiming permanent injunction against the municipality from erecting the proposed huts and latrines as adjunct thereto for the accommodation of the sweepers and methers. An ad interim injunction granted was dissolved and the Municipality proceeded and constructed the houses and latrines pending the suit. While the trial Court limited the injunction to the removal of the latrines only, on appeal the municipality was directed to remove all the buildings and restore the land to its original condition. An ad interim injunction granted was dissolved and the Municipality proceeded and constructed the houses and latrines pending the suit. While the trial Court limited the injunction to the removal of the latrines only, on appeal the municipality was directed to remove all the buildings and restore the land to its original condition. Setting out the principles that governed the case, it is observed thus: " From the principles I have just quoted it follows that one co-sharer has no justification to change without the consent of his co-tenant the state of the possession as enjoyed by the co-tenants." The following observations therein are quite apposite to the present case: "In the present case, joint possession of the parties was disturbed by the Municipality and that in spite of the protest of the plaintiff. There can be no justification for such a high-handed proceeding.............. In the present case there are no grounds on which it can be said that the plaintiff has lost his undoubted rights to insist upon the continuation of the existing state of the possession of the common lands.................. It seems that the Courts below thought in the present case the plaintiff was seeking an injunction on the ground of actionable nuisance for getting that the case was based on the ground of infringement of the rights of a co-owner by another co-owner. The plaintiff’s remedy should not have been limited bat should have included the whole subject-matter of the suit. The discretion of the Court must be exercised on recognised principles and should not be arbitrary............... The defendants cannot complain if they are now compelled to restore the property to its original condition by the removal of the huts built on the land which they persisted in building in spite of the institution of this Suit." In the case now before me despite the protest of the plaintiffs most high-handedly the appellant has invited notice from the municipality and purporting to act upon it has destroyed the latrine and deprived the plaintiffs of the use they were having of the common property. In my view, it cannot be said that the Courts below have exercised their discretion erroneously when granting mandatory injunction entitling this Court to interfere with the exercise of their discretion in Second Appeal. In my view, it cannot be said that the Courts below have exercised their discretion erroneously when granting mandatory injunction entitling this Court to interfere with the exercise of their discretion in Second Appeal. Before I part with the case, I must remark that it is a matter for regret that the parties should have fought out this matter in three Courts, when by pooling their resources instead of spending money on litigation, they could have provided for themselves a modern latrine which will satisfy the most stringent requirements of the health authorities. If the appellant had found the location of die latrine in the changed circumstances a nuisance, he could have taken proper action and sought appropriate directions in a Court of law. It may be that a partition by metes and bounds would not be feasible. But it might have been possible with good will on both sides to evolve a solution acceptable and convenient to all the parties. It may be that the restoration of the structure to its original position would not by itself secure to the plaintiffs all the reliefs they require ; nor can it be said that justice and equity would have been meted out finally to all the parties by the restoration of the status quo. The appellant can in appropriate proceedings still establish that the circumstances have since so changed that it is not necessary to maintain and continue the old latrine. The decree in this case cannot preclude a properly framed suit where justice could be meted out to all the parties and amity established between the tenants-incommon. But there can be no gainsaying the fact that the action of the appellant which has given rise to the suit was unjustified and uncalled for. In the result the Second Appeal fails and is dismissed with costs. No leave. V.K. ----------- Appeal dismissed.