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2006 DIGILAW 289 (GAU)

Purabi Majumder v. State of Tripura

2006-03-24

A.B.PAL

body2006
JUDGMENT A.B. Pal, J. 1. The concurrent findings of the learned Civil Judge (Junior Division), Kailashahar, North Tripura in judgment dated 22.12.1999 in Title Suit No. 12 of 1978 affirmed in title Appeal No. 4 of 2000 by learned Additional District Judge, North Tripura, Kailashahar in judgment dated 27.7.2004 have been impugned in this second appeal by the Plaintiffs-Appellants. 2. This second appeal has a chequered career. The Appellants herein being legal heirs of one Bishnu Sevak Majumder filed Title Suit No. 2 of 1978 in the court of learned Civil Judge (Junior Division), Kailashahar, North Triura for establishment of jote right and confirmation of possession over southern half of a tank measuring 1.031 decimal. The suit tank is commonly known as 'Kalidighi'. The Appellants claimed that half of the said tank measuring 0.948 acre was part of kayemi taluk No. 110, which was settled by the Maharaja of independent Tripura in favour of one Bisheswar Majumder, the paternal grandfather of the Plaintiffs. The northern half of the said tank formed part of kayemi taluk No. 109, which was settled in the name of other Talukdar, Late Shib Narayan Choudhury, who was the predecessor of the pro-Defendants. The entire tank was recorded in khatian No. 1177 and C.S. plot No. 2341,2342 and 663 in the name of the talukdars. In the said khatian, in column No. 23, the remarks recorded were that the earning from the said tank would be spent for worshiping the 'Kailasheswari Kalita deity', whose temple situated on the northern bank of the tank. Though the khatian recorded the talukdars as raiyats, they were aggrieved by the above remarks in column No. 23. They filed an objection for correction of the said remarks and accordingly an objection case No. 204 of Mouja-Kailashahar was registered by Assistant Survey and Settlement Officer. The Secretary of the Kalibari Committee was duly informed, but none did appear on the date of hearing. On 5.1.1967 the said Revenue Officer directed that the remarks would be replaced by the words "Kali Dighi - for use by general public" in column 23. The Secretary of the Kalibari Committee was duly informed, but none did appear on the date of hearing. On 5.1.1967 the said Revenue Officer directed that the remarks would be replaced by the words "Kali Dighi - for use by general public" in column 23. The Secretary of the Committee, however, was aggrieved by that order of the said Revenue Officer and filed a revision petition No. 113/1974 under Section 95 of the Tripura Land Records and Land Reforms Act, 1960 (for short 'TLR & LR Act') for correction of the said khatian No. 1177 claiming that the entire tank should be recorded in the name of the deity. The said revision petition was disposed of by the Director of Settlement & Land Records (for short 'DSLR') on 7.11.1975 directing that the plot No. 2341 (suit tank) should be treated as Govt. Khas land. Some other lands including plot No. 663 being bank of the tank were also directed to be recorded as khas land. The prayer of the Secretary of the Kalibari Temple to record the suit tank and other lands in the name of the deity was thus rejected. 3. The Secretary of the Kali Temple filed Title Suit No. 27 of 1973 for a decree of injunction to restrain Bishseswar Majumder and Ors. from disturbing peaceful possession over the tank by the deity. The suit was decreed in favour of the secretary on 9.4.1975 against which an appeal was filed by the Appellants herein, which was registered as Title Appeal No. 5 of 1975. On 30.3.1976, the appellate court delivered the judgment allowing the appeal and setting aside the decree of injunction. Aggrieved, the Secretary of the said temple filed Second Appeal No. 3 of 1976 in this Court. The said second appeal was disposed of by a consent order. To understand the same, it is necessary to keep in mind that Sree Sree Kali Bigraha of Kailashahar Town, represented by its Secretary was the Plaintiff-Appellant and Shri Bishseswar Majumder was the Defendant No. 1 Respondent. One Matilal Das, S/O. Mahendra Lal Das was shown as proforma Defendant No. 2/Respondent. The operative part of the said order of this Court (Hansaria, J.) reads as follows: The Plaintiff would raise no objection to the Defendants fishing in the tank. One Matilal Das, S/O. Mahendra Lal Das was shown as proforma Defendant No. 2/Respondent. The operative part of the said order of this Court (Hansaria, J.) reads as follows: The Plaintiff would raise no objection to the Defendants fishing in the tank. The Defendants on their side would do nothing to prevent the general public from using the water of the tank. No construction would be made inside tank. So far as south and west banks of the tank are concerned, the Defendants would use this as they like to which the Plaintiff shall have no objection and the land is said to have been made khas. It is for the Government to decide if it should do anything in this regard. This order has been passed subject to any proceeding that the Defendants may start against the order of the Government making the lands khas, and keeping in view the existing rights of the parties. If the rights change in future in any way, this order would not be binding on any of the parties. 4. The Appellants instituted proceeding under Section 11(3) of the TLR & LR Act before the Collector being aggrieved by the order dated 7.11.1975 of the DSLR. The said proceeding was registered as Case No. 12 of 1976. By an order dated 29.6.1977, the learned Collector disposed of the said proceeding with the following order: I feel that as the matter has already been decided by a superior revenue court, i.e. the court of the Administrator, this Court has got no jurisdiction to hear this case. I therefore, refrain from going into the merits of the petition and order that the petition is not maintainable. The Petitioner may seek redress against the order of the D.S.L.R. passed in connection with case No. 11 (3) of 1974 under Section 95 of the Act to the appropriate court. 5. I therefore, refrain from going into the merits of the petition and order that the petition is not maintainable. The Petitioner may seek redress against the order of the D.S.L.R. passed in connection with case No. 11 (3) of 1974 under Section 95 of the Act to the appropriate court. 5. Aggrieved, the Appellants filed the present Title Suit No. 2 of 1978 under Section 11(4) of the TLR & LR Act on the following grounds: (a) Though the taluki rights in the lands and the tank appertained to Taluk No. 110 of the Appellants had vested with the Government, the Appellants retained the possession of the southern part of the suit tank recorded in plot No. 2341 and therefore, the DSLR should not have directed to record the same as khas; (b) The record of rights in respect of the said plot No. 2341 showing the Appellants as raiyats was finally published in the year 1966. It was, therefore, not open to the DSLR to alter the same and record it as khas land by the order dated 7.11.1975, after a period of nine years; (c) As the suit tank was never acquired, the same could not be recorded as khas; (d) In 1964 one ganda of the southern part of plot No. 2341 was acquired for the purpose of road awarding compensation in favour of Bishnu Sevak Majumder, which fact goes to show that the title of the Appellants over the said plot was admitted by the State Respondents. 6. The State Defendants contested the suit contending, into alia, that the tank was excavated by the then ruler, the Maharaja, sixty years back and thereafter, the State Government re-excavated the same. On 15.4.1963 when the intermediary right of the talukdars stood vested in the State Government by operation of the TLR & LR Act, the possession of the suit tank was not with the Appellants as held by the learned Munsiff in the suit filled by the Secretary of the said temple. Thus, the Appellants' claim of retention of southern part of the suit tank had no basis as possession over such lands on the vesting date is a sine qua non for personal retention under relevant provision of the TLR & LR Act. Thus, the Appellants' claim of retention of southern part of the suit tank had no basis as possession over such lands on the vesting date is a sine qua non for personal retention under relevant provision of the TLR & LR Act. As regards acquisition of one ganda of land from the plot No. 2341, the contention of the State Respondents was that it was wrongly given as the suit tank was wrongly recorded in the name of the Appellants. It is further contended that Section 95 of the said Act does not provide that record of rights cannot be corrected after certain period. It was, therefore, within the jurisdiction of the learned DSLR to rectify the errors in the said record of rights when it was found that the possession of the suit tank was not with the talukdar on the vesting date and there was no prayer in terms of relevant provision of the said Act by the Appellants to retain the suit part of the tank. 7. Learned trial court after recording the statements of several witnesses and taking into evidence several documents made following observations before dismissing the suit: (i) The Plaintiffs, Appellants herein did not state in the plaint who had excavated the suit tank, in other words, how the said tank came to exist. The Plaintiff was also silent whether the ex-ruler had settled the lands of taluk No. 110 including the tank; (ii) From the documents placed by the state Respondents it was noticed that the Kalibari was established by the ex-ruler in 1910 and the adjacent suit tank was excavated in 1911. The tank was given the name "Kalibari Tank", which is significant inasmuch as such a name indicates that the tank was excavated for the purpose of the Kalibari. Exbt. B is the roked book (Cash Book) of the ex-ruler, which shows the expenditure incurred for excavation of the Kalibari tank; (iii) The water hyacinth was cleared from the tank by the ex-ruler in 1321 and by the Govt., of Tripura in 1959 as per documents placed on record; (iv) Exbt. C shows that Rs. 25/- was appropriated for worshiping the deity and Rs. 5/- for clearance of the Kalidighi indicating thereby the possession of the suit tank was not with the Appellants. Exbts. C shows that Rs. 25/- was appropriated for worshiping the deity and Rs. 5/- for clearance of the Kalidighi indicating thereby the possession of the suit tank was not with the Appellants. Exbts. E and F show that the Government had cleared the water hyacinth from the tank from time to time; (v) Exbt. 14 is the copy of the Khatian at attestation stage and Exbt. 1 is the finally published khatian of the suit tank. In column 23 the remarks are "for use of public in general", which is to be understood to indicate that the Appellants had no exclusive possession over the same on the date of vesting; (vi) Exbt. 5 is the suit tank map of the Kailashahar Mouja, which shows the related plot of the suit tank without mentioning the survey plot number; (vii) The Plaintiff also did not file the map of their taluk to show whether the related plot of the suit tank appertained to the said taluk; (viii) P.W. 1 himself admitted that the suit tank was always used by Kalibari and the public in general. (ix) Though admittedly the suit tank appertained to old Survey plot No. 269, the Plaintiff did not file chitha or khatian to prove that the suit tank belonged to the taluk before excavation. 8. Learned trial court further observed that Touji and challan filed by the Appellants and marked as Exhibits had nothing to show that those were relatable to the old plot No. 269, which admittedly comprised the suit tank. However, though there was no definite proof on record to take a view that plot No. 269, was within Taluk No. 110 before 1911 when the tank was excavated, in the absence of contrary proof that the said plot discontinued to be part of Taluk No. 110, it is recorded that southern half of the suit tank was part of Taluk No. 110 before excavation, the materials on record thus helped the learned trial court to come to the conclusion that on the vesting date, the taluki right or the entire rights over the land under Taluk No. 110 including the suit tank had vested in the Government and that as the predecessor of the Appellants was not in exclusive possession of the suit tank, he was not entitled to retain the same in terms of Section 136 of the TLR & LR Act. 9. 9. In the first appeal putting under challenge the said judgment and decree dismissing the suit, the learned Addl. District Judge found no reason to take a different view and finally concurred with the findings of the learned trial court after making certain observations on questions including that of maintainability of the suit. It was noticed by the learned first appellate court that the dispute had cropped up between the State Government and the Appellants herein with regard to the right over the suit tank and in the suit the order dated 7.11.1995 of the DSLR was in fact brought under challenge. It has been noticed that the order dated 29.6.1977 of the learned Collector rendered in the proceeding under Section 11(3) of the TLR & LR Act was not assailed in the said suit though by that order the learned Collector refused to exercise his jurisdiction in the matter of deciding the dispute over the suit tank between the State Government and the Appellants herein in view of the order passed by the learned DSLR on 7.11.1975 in the revision under Section 11(3) of 1974. It has been further observed that Section 11(4) of the Act provides for filing of a suit in the civil court by a person, who is aggrieved by an order made by the Collector under Sub-section (3) of Section 11 of the Act. As no challenge was put forward against the order of the learned Collector under Section11(3) of the Act meaning thereby that the Appellants were not aggrieved by the same, the question was whether a suit under Section 11(4) of the said Act was at all maintainable. According to the opinion of the learned first appellate court, no other order except one passed under Section 11(3) of the Act can be assailed in a proceeding under Section 11(4) of the Act and therefore, the order dated 7.11.1975 of the learned DSLR under Section 95 of the act was unassailable in a proceeding under Section 11(4) of the Act. It has further been held that Section 188 of the TLR & LR Act excludes jurisdiction of the Civil court with respect to any matter arising under and provided for by the said Act unless otherwise expressly provided. It has further been held that Section 188 of the TLR & LR Act excludes jurisdiction of the Civil court with respect to any matter arising under and provided for by the said Act unless otherwise expressly provided. This provision under Section 188 of the Act when read together with Section 11(4) of the Act gave an irresistible impression to the learned first appellate court that in a civil suit like the present one an order passed under Section 95 of the act cannot be called in question in a civil suit. 10. The question of vesting was also duly addressed with reference to the provisions of Sections134, 135 and 136 of the Act. It is not in dispute that the taluki right over the lands of Taluk No. 110 had vested in the Government. The question that clamored later was whether the suit tank was retainable under the above noted provisions, after the notification under Section 134 of the Act all the rights of the intermediaries in the lands covered by such notification had vested by operation of Section 135. Section 136(1) of the Act made an explanation to such a vesting by providing that an intermediary would be entitled to retain w.e.f. the date of vesting homesteads, buildings and structures together with the appurtenant thereto in the possession of the intermediary other than buildings vested in the Government under Section 135. This provision would definitely show that possession in such properties is a sine qua non for putting forward the claim for retention of the lands for which procedures have been laid down in Section 137. The Collector, after the notification of vesting of intermediary rights, shall issue a notice whereupon the intermediary has a right to submit in Form 52, the description of the lands to be retained by him under Section 96 of the Act. The Plaintiffs Appellants failed to place on record any document to show that such a claim describing the suit tank in Form 52 of the Act was ever submitted. That apart, the Plaintiffs Appellants also did not submit the taluki khatian or failed to state in the plaint the old plots which appertained to kayemi taluk No. 110 making it difficult for the learned courts below to record the finding whether the suit tank was within the kayemi taluk No. 110 before it was excavated. That apart, the Plaintiffs Appellants also did not submit the taluki khatian or failed to state in the plaint the old plots which appertained to kayemi taluk No. 110 making it difficult for the learned courts below to record the finding whether the suit tank was within the kayemi taluk No. 110 before it was excavated. Thus, as the suit tank was not found in possession of the Plaintiffs-Appellants and there was no prayer for recovery of possession, the learned first appellate court after discussing the provision of Section 34 of the Specific Relief Act held that the finding of the learned trial court, though it did not allow the Plaintiffs Appellants to amend the plaint in its discretion, called for no interference. The appeal was thus dismissed affirming the dismissal of the suit. 11. It would appear from above that there having no dispute that the taluki right over the lands under taluk No. 110 had vested in the Government, the Plaintiffs-Appellants sought to establish their jote right over southern part of the suit tank claiming that their predecessor was entitled to retain the same under Section 136 of the Act and accordingly, khatian was finally published showing their predecessor as raiyat. The question that has surfaced for consideration is whether the suit tank was retainable at all and if so, whether the procedure of such retention as provided in Section 137 of the Act and the Rules framed there under was followed. 12. Mr. D. K. Biswas, learned Counsel for the Plaintiffs-Appellants made a strong submission that the DSLR was not competent to direct modification of the finally published record of rights after long lapse of time in exercise of the powers conferred under Section 95 of the Act. His next submission is that Section 11(4) of the Act has wider sweep and should not be construed in a narrow compass to restrict its ambits within the four walls of Section 11(3) of the Act. His first submission that after a long lapse of time the State Government or the Collector cannot examine legality or propriety of any order passed under Section 95 by subordinate authority appears to be misplaced if the provision of that section is given a careful construction. Section 95 provides as follows: 95. His first submission that after a long lapse of time the State Government or the Collector cannot examine legality or propriety of any order passed under Section 95 by subordinate authority appears to be misplaced if the provision of that section is given a careful construction. Section 95 provides as follows: 95. State Government or the Collector may at any time, either on his own motion or on the application of any party, call for the records of any proceedings before any revenue officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of any order passed by such revenue officer, and may pass such order in reference thereto as he thinks fit: Provided that he shall not vary or reverse any order affecting any right between private persons without having given to the parties interested notice to appear and be heard. 13. It would appear from the above provision that no time limit has been proposed for exercising the power of revision by the aforesaid authorities and there is no grievance that while exercising the powers of the State Government by the learned DSLR, the Plaintiffs-Appellants or their predecessor was not given opportunity of being heard. Like the learned courts below, I have no hesitation to hold that the DSLR was competent enough to exercise the powers of revision for correction of any record of rights. As regards the second submission on the question of contour and sweep of Section 11(4)of the Act, the restrictive words used therein may be noticed: 11 (4) Any person aggrieved by an order made under Sub-section (3) or in appeal or revision therefrom may institute a civil suit to contest the orderwithin a period of six months from the date of such order and the decision of the civil court shall be binding on the parties. (emphasis supplied) 14. The Legislature has carefully drafted this provision to restrict the jurisdiction of the civil court under Section 11(4) of the Act, which can be resorted to only to contest the order passed under Section 11(3) of the Act. Thus, in a suit under Section 11(4) nothing more can be contested, nor the order passed by the DSLR under Section 95 of the said Act. Thus, in a suit under Section 11(4) nothing more can be contested, nor the order passed by the DSLR under Section 95 of the said Act. A different view that any order other than one under Section 11(3) can also be contested in a suit under Section 11(4) of the Act would amount to enlarging or amending the said provision by judicial pronouncements, which is totally barred. 15. It is no longer res integra that the High Court or for that matter any other court cannot do anything more than what are explicit in a provision and no attempt should be made to transgress into the legislative domain of the State. This being the legal position, there is nothing to disagree with the view taken by the learned courts below that in a civil suit under Section 11(4) of the TLR & LR Act, an order of the revisionsal authority under Section 95 of the Act, such as this, cannot be called in question, more so, when the same is further examined in the light of the provision contained in Section 188 of the Act barring jurisdiction of the civil court with respect to any matter arising under and provided by the said Act unless otherwise expressly provided. 16. Mr. Biswas placed Anr. argument that definition of 'homestead' given in Section 133(b) of the Act includes a tank appertaining to the dwelling house. His contention is that the southern part of the suit tank falling within Taluk No. 110 was attached to the homestead of the Talukdar and, therefore, in view of Section 136 of the Act, the predecessor of the Plaintiffs-Appellants was entitled to retain the same. This argument is no doubt attractive, but it lacks materials to support the contention that the part of the suit tank was adjacent to the dwelling house and in exclusive possession of the Appellants. The DSLR as well as the courts below have come to the same finding on facts that the suit tank was not in exclusive possession of the Appellants' predecessor and hence was not retainable. A person claiming retention of a tank adjacent to his dwelling house under Section 136 of the Act must show that such tank was within his exclusive possession as has been correctly held by the learned courts below. 17. Several decisions of the Supreme Court and other High Courts referred to by Mr. A person claiming retention of a tank adjacent to his dwelling house under Section 136 of the Act must show that such tank was within his exclusive possession as has been correctly held by the learned courts below. 17. Several decisions of the Supreme Court and other High Courts referred to by Mr. Biswas in support of the arguments placed by him are as follows: (a) Keepattel Bappu v. Mugharikutty's son Kizhakke Valappil Muhammad reported in AIR 1993 Ker 273 on the Principles of res judicata; (b) Ajudh Raj v. Moti reported in AIR 1991 SC 1600 on the period of limitation; (c) Roy and Co. v. Sm. Nani Bala Dey reported in AIR 1979 Cal 50 on Commissioner's report; (d) Debendranath Nandi v. Natha Bhuiyan reported in AIR 1973 Ori 240 on local investigation by Commissioner; (e) Tummalla Atchaiach v. Venka Narasingarao reported in AIR 1978 SC 725 on power of the court to interfere with the decree of trial court; (f) Ishwar Dutt v. Land Acquisition Collector reported in AIR 2005 SCW 3578 on powers of the High Court under Section 107 of the Code of Civil Procedure, which cannot go outside the pleadings. A careful reading of the said decisions would show that in the factual situation of the present case, those do not come for assistance for the Appellants herein. 18. Mr. T.K. Roy, learned Advocate General appearing for the State Respondents in his arguments supported the stand taken by the learned courts below firstly on the question of jurisdiction of the civil court, which has been clearly ousted under Section 188 of the Act. It is his clear view, as has been noticed above, no order passed under the said Act, unless otherwise specifically provided therein, can be called in question in a civil court and thus the order of the DSLR in the revision case under Section 95 of the TLR & LR Act declaring that the suit tank was the khas land cannot be called in question in a suit under Section 11(4) of the Act. He strongly pleaded that the suit being under Section 11(4) of the Act the Appellants could contest only the order of the Collector passed under Section 11(3) of the Act, which having not been done, the learned trial court on that point alone could have dismissed the suit. He strongly pleaded that the suit being under Section 11(4) of the Act the Appellants could contest only the order of the Collector passed under Section 11(3) of the Act, which having not been done, the learned trial court on that point alone could have dismissed the suit. As regards the question about possession, it is his submission that in a second appeal the concurrent findings of the courts below that the Plaintiffs-Appellants were never in exclusive possession of the suit tank cannot be re-examined. It has been pointed out by him that though five substantial questions of law were framed at the time of admission of the second appeal, Mr. Biswas has dropped Questions No. 1,2,3 and 5 and therefore, there remained only substantial question of law No. 4, which reads as follows: (4) Whether the State-Respondents in view of their payment of compensation to the Appellants in respect of a part of the same survey plot in 1965, are estopped from pleading in the instant suit that the Appellants were never in possession of the other part of the survey plot? According to Mr. Roy, this is a mixed question of law and fact and, therefore, it can be safely said that in this second appeal no substantial question of law remained for the High Court to advert to. 19. Mr. Biswas, however, proposed additional substantial questions of law, such as: (i) Whether in a suit under Section 11(4) of the TLR & LR Act the order of the Collector under Section 11(3) has to be challenged for maintaining the suit? (ii) Whether the judgment of the DSLR under Section 95 of the TLR & LR Act can be assailed on the ground of lack of jurisdiction in a suit under Section11(4)? (iii) Whether the appellate court can formulate any question for decision beyond the grounds of appeal and or beyond the pleadings and set aside a finding of the trial court in the absence of cross objection? (iv) Whether the appellate court can reject the report of the Survey Commissioner accepted by the trial court? 20. All the proposed additional substantial questions of law have not, however, been incorporated in any order of this Court. (iv) Whether the appellate court can reject the report of the Survey Commissioner accepted by the trial court? 20. All the proposed additional substantial questions of law have not, however, been incorporated in any order of this Court. Even though the same has not been done, the discussion made above would go to show that in a suit under Section 11(4) of the Act only an order under Section 11(3) of the Act can be contested and that because of the bar placed by Section 188 of the TLR & LR Act, an order under Section 95 of the Act cannot be called in question in a civil court. As regards other two issues, I find that the learned first appellate court has concurred with the findings of the learned trial court though he made certain observations in a different way, which had no effect on the final outcome of the appeal. The Survey Commissioner's report also has been dealt with by the learned courts below and it has been found that such a report could not improve the case of the Plaintiffs-Appellants for the reason that the predecessor of the Appellants was not found in exclusive possession of the suit tank at the time of vesting disentitling their predecessor to retain the same when admittedly the taluki rights over the lands of taluk No. 110 had vested in the Government by operation of the provisions contained in the said Act. Thus, it was not necessary to formally take those substantial questions of law for further adjudication. 21. From the above, it would be clear that the taluki right over Taluk No. 110 of the" talukdar, reduces or of the Appellants herein, had vested in the Government and at that time, the talukdar had no exclusive possession over the southern part of the suit tank. No material was placed on record to show that the said part of the suit tank was attached to the dwelling hut and in exclusive possession of the talukdar or any claim for retention in Form 52 of the Rules describing the southern part of the suit tank was ever made. No material was placed on record to show that the said part of the suit tank was attached to the dwelling hut and in exclusive possession of the talukdar or any claim for retention in Form 52 of the Rules describing the southern part of the suit tank was ever made. Thus the findings on facts by the DSLR that the suit tank was in possession of the Maharaja (ex-ruler) followed by the State Government, who from time to time cleared the water hyacinth from the tank, constructed pucca steps (ghatla) for use by public was affirmed by the learned trial court and the learned first appellate court and such findings on facts cannot be interfered with in the second appeal. It has been correctly held by the learned courts below that the southern part of the suit tank being not in the exclusive possession of the talukdar was not retainable by him and the decision of the DSLR in a proceeding under Section 95 of the TLR & LR Act is not assailable in a civil suit under Section 11(4) of the Act, which the Appellants herein had instituted. 22. For the reasons and discussions made above, all the concurrent findings in the impugned judgments do not call for any interference from this Court. Consequently, this second appeal being devoid of any merit stands dismissed. No cost. Appeal dismissed