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2007 DIGILAW 895 (ALL)

Anjuman Islamia v. Chandra Prakash Pitaria

2007-04-06

RAKESH SHARMA

body2007
JUDGMENT : RAKESH SHARMA, J. 1. Heard Sri Shafiq Mirza, learned Counsel for the Appellant and Sri S.K. Mehrotra, learned Counsel appearing on behalf of the Respondent-legal heirs/ representatives of the original Respondents 1 and 2. 2. Through the present second appeal, the Appellant has assailed the judgment and decree dated 5.12.1978, passed by the Civil Judge, Lakhimpur, dismissing Civil Appeal No. 100 of 1978, affirming the judgment and decree passed by the trial court, i.e., the Munsif, Lakhimpur on 5.5.1978. The trial court had dismissed the Suit No. 294 of 1973, Anjuman Islamia Lakhimpur v. Sri Ram Pitarya and Anr. seeking permanent prohibitory injunction. (The Plaintiff Appellant had not sought any relief of declaration). Both the courts below, i.e., the trial court and the appellate court have recorded concurrent findings of facts and found the case of the Appellant as unfounded and declined to interfere with the possession of the Respondents over the land in question, alleged to be a part of the graveyard managed by the Appellant. 3. It emerges from record that the Appellant filed a suit bearing No. 294 of 1973, for permanent injunction restraining the Defendants from interfering with its possession over the land in dispute. According to the Appellant, it was a Muslim graveyard, a waqf and as such the Defendants be restrained from changing the nature of the graveyard and digging or removing the graves existing over the disputed land. The land was an old graveyard of local Muslims of Lakhimpur and there were several kuchcha and pucca graves in the said graveyard (kabristan). During pendency of the suit, a commission was issued and the advocate Commissioner had reported that there were four or five pucca graves over the disputed land. In addition to this, there were several pits over the disputed land, which the Appellant had alleged to be old graves. The Appellant had produced several witnesses to depose that the dead bodies of their relations were buried in the said graveyard. The trial court did not find favour with the Plaintiff's case, hence the suit was dismissed. The appeal filed by the Appellant was also dismissed. 4. Sri Shafiq Mirza, learned Counsel for the Appellant has strenuously argued that the land in dispute was an old graveyard, which is a waqf under the Mohammedan law. The trial court did not find favour with the Plaintiff's case, hence the suit was dismissed. The appeal filed by the Appellant was also dismissed. 4. Sri Shafiq Mirza, learned Counsel for the Appellant has strenuously argued that the land in dispute was an old graveyard, which is a waqf under the Mohammedan law. According to him, the Plaintiff Appellant has all along been claiming that the disputed land is a waqf property being a graveyard. Under the Mohammedan law, once a graveyard is always a graveyard. It cannot lose its identity or character as graveyard by passage of time. After the old graveyard was filled up, the land in question adjoining the said graveyard was acquired for the purposes of burials. The Respondents are claiming their title over the land on the basis of a registered sale-deed executed by one Mahadeo Prasad in 1951. There are findings of facts recorded by the courts below about the number and existence of pucca and kuchcha graves over the disputed land and as such the said land can be termed as 'graveyard' as understood under the Mohammedan law. The Commissioner's report supports the claim of the Appellant that there exist some graves and pits over the land in dispute. The courts below have arrived at wrong conclusions. The Defendants cannot be permitted to change the nature of the graveyard by removing the graves, and as such an injunction was sought from the appropriate court. The court below was required under the law to grant injunction at least to the extent that the graves found over the disputed land should not be removed by the Defendants. In refusing this relief, the court below has acted in violation of law. The absence of entries in the revenue records and other papers can be excluded from consideration as the disputed land was a very old graveyard. The oral evidence led by the Appellant ought to have been scrutinized by the courts below for deciding the controversy in accordance thereof. Both the courts below have committed an error of law in overlooking this aspect of the matter. 5. Sri S.K. Mehrotra, learned Counsel for the Respondents has resisted the appeal. According to him, the Appellant has no legal right or title to sue nor it had locus standi to maintain the suit. Both the courts below have committed an error of law in overlooking this aspect of the matter. 5. Sri S.K. Mehrotra, learned Counsel for the Respondents has resisted the appeal. According to him, the Appellant has no legal right or title to sue nor it had locus standi to maintain the suit. The suit had been filed by a body known as Anjuman Islamia Lakhimpur through Hakim Manzoor Hussain Khan alleging himself to be its Secretary (mutwalli). The Appellant had in fact no right to maintain the suit and only the heirs of the two persons, whose graves allegedly stand over the land in dispute, could have claimed the injunction that there may not be any interference with the graves of their relatives. No such person has come forward till date to claim such relief. The suit was filed with ulterior motive. The Respondents had purchased 1.75 acres of land in 1951. This plot was in the naute of grove, which is evident from the boundaries of the plot. The Defendant-Respondents had built a godown over the land ; they were using and occupying the same since 1951. An unnecessary dispute was raised by the Appellant in the year 1973. The disputed plot of land was recorded as grove in the revenue records. The extracts of khasras relating to following years were produced before the courts below and the same were discussed by the lower appellate court too in its judgment : 1. Khasra relating to 1304 F = 1897 AD 2. Khasra relating to 1328 F = 1921 AD, and 3. Khasra relating to 1345 F = 1938 AD. It was indicated that the plot No. 153 (new), old No. 142, measuring 1.75 acres was recorded in the name of Sheetal Nau. This land was recorded a grove and as per Section 57 of the U. P. L. R. Act, 1901, the entries in concurrent records of latest settlement are presumed to be correct unless rebutted by cogent evidence. In this regard. Sri Mehrotra has placed reliance on a judgment of this Court in Lalbihari and Ors. v. Ram Adhar and Ors. 1985 (3) LCD 415: 1986 AWC 9. 7. Sri S.K. Mehrotra, learned Counsel for the Respondents has led stress on the point that the Appellant had sought permanent prohibitory injunction without claiming the relief of declaration. In this regard. Sri Mehrotra has placed reliance on a judgment of this Court in Lalbihari and Ors. v. Ram Adhar and Ors. 1985 (3) LCD 415: 1986 AWC 9. 7. Sri S.K. Mehrotra, learned Counsel for the Respondents has led stress on the point that the Appellant had sought permanent prohibitory injunction without claiming the relief of declaration. Such suit for permanent prohibitory injunction without claiming the relief of declaration has been held to be conduct prohibiting the Plaintiff from receiving the assistance of the Court to get relief u/s 41(1) of the Specific Relief Act, 1963. In this regard, he has placed reliance on the following judgments : 1. Sri Dasnam Naga Sanyasi and another Vs. Allahabad Development Authority, Allahabad and another, AIR 1995 All 418 2. Sir Shadilal Enterprises Limited, New Delhi v. State of U. P. and Ors. 1995 AWC 443 ; and 3. Pilibhit Ispat (Pvt.) Ltd., Pilibhit and Anr. v. U.P. State Electricity Board, Lucknow and Ors. 1996 (2) AWC 2.80. 8. Relying on the authority of the Apex Court in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 588 (Paras 8 and 9), Sri S.K. Mehrotra has submitted that as per Sections 101 and 102 of the Evidence Act, 1872, burden of proof rests on the party who substantially asserts the affirmative issues and not the party who denies it. The Appellant did not produce any documentary evidence to demonstrate that the land in dispute, which was purchased by the Respondents in the year 1951, was a graveyard. At once place, the Appellant had admitted that the original old graveyard was filled up, hence adjacent plot was used to bury the dead bodies. Not a single document, like extract of entries of revenue records, municipal records or other material has been placed by the Appellant to prove that the land in dispute was a graveyard when the Respondents had categorically denied this fact and had established before the courts below that the land was recorded as grove in all the revenue records, consolidation records, etc. 9. Sri S.K. Mehrotra, learned Counsel for the Respondents has further submitted that no substantial question of law is involved in this case. Both the courts below have recorded concurrent findings of facts in arriving at the conclusion that the land in dispute was a grove belonging to the Respondents. 9. Sri S.K. Mehrotra, learned Counsel for the Respondents has further submitted that no substantial question of law is involved in this case. Both the courts below have recorded concurrent findings of facts in arriving at the conclusion that the land in dispute was a grove belonging to the Respondents. No notice was sent to the Waqf Board nor the said Board had ever objected to the continuance of the possession, use and occupation by the Respondents over the plot in question. Even during consolidation proceedings, which admittedly took place in Lakhimpur, the land in question owned by the Respondents was not recorded as a graveyard. There is no mention of the land in question as graveyard in the consolidation records, revenue records, as per provisions of Section 27 of the Consolidation Act and Rule 83 of the Rules framed under the said Act. There is no entry in the consolidation map and other records regarding this fact. Learned Counsel for the Respondents has placed reliance on Gurdev Kaur and Others Vs. Kaki and Others, and Govindaraju Vs. Mariamman, AIR 2006 SC 1975 in support of his above submission. 10. As far as existence of some graves over the land in dispute is concerned, the Respondents' learned Counsel has submitted that it was not established that this land was ever dedicated as waqf. The land in dispute was never registered as waqf with the Waqf Board under the provisions of relevant Waqf Act, 1995. The law is settled, vide decision in M.P. Wakf Board Vs. Subhan Shah (D) By LRs. and Others, (2006) 10 SCC 696 that a property has to be dedicated or gifted for religious purposes, burial, etc. No document, waqf-deed etc. has been produced by virtue of which the land could be defined as a Muslim Waqf. No evidence was produced before the Court that it was being used for a long time as a burial ground. The elements of dedication as waqf and long use of the land in question as burial ground are absent in this case. In support of above submission, Sri Mehrotra has placed reliance on the following decisions : 1. Ganpatrao Madhorao Betkar and Ors. v. Sheikh Badar Farid Mussalman and Ors. AIR 1939 Nag 193 ; 2. AIR 1936 83 (Privy Council) 3. AIR 1934 263 (Oudh) 4. Jiwan Singh and Ors. v. Karamdin and Ors. In support of above submission, Sri Mehrotra has placed reliance on the following decisions : 1. Ganpatrao Madhorao Betkar and Ors. v. Sheikh Badar Farid Mussalman and Ors. AIR 1939 Nag 193 ; 2. AIR 1936 83 (Privy Council) 3. AIR 1934 263 (Oudh) 4. Jiwan Singh and Ors. v. Karamdin and Ors. AIR 1927 Lah 664 ; and 5. Syed Mohd. Salie Labbai (dead) by Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, AIR 1976 SC 1569 . 11. Sri S.K. Mehrotra, learned Counsel for the Respondents has further submitted that the land in question was never used as waqf u/s 33 of the old Waqf Act or Section 40 of the new Waqf Act, 1995. He has explained to the Court that in fact an old graveyard existed over plot No. 238. This plot No. 238 was being used as kabristan, dedicated for the purpose of burial of dead bodies of local Muslims. The plot in question viz. plot No. 142 (old), now 153 (new) measuring 1.75 acres adjoins the said plot No. 238. The levels of these two plots were found to be different by the Advocate Commissioner, who indicated in his report that one plot was at higher level while the other was at lower level. The plot in question, namely, plot No. 153 has all along been registered as a grove. The Advocate Commissioner's report also indicates that there was a godown in the western side of plot No. 153. Some pits were found in the said plot due to felling or cutting of old trees. It has also come in the findings that about 35 to 40 old trees were cut away from the grove which had resulted in formation of these pits. 12. In rejoinder, Sri Shafiq Mirza, learned Counsel for the Appellant has submitted that the dedication of the land as graveyard or waqf can be inferred from long use of the plot as kabristan. Due to existence of two graves, the plot in question has become kabristan, a waqf on the principle of waqf by user. He has placed reliance on the provisions of Section 3(g) (i) of the Waqf Act and submitted that it was in fact kabristan zarya, adjacent to kabristan qadimi. Appellant Anjuman Iaslamia Lakhimpur is a registered body. Due to existence of two graves, the plot in question has become kabristan, a waqf on the principle of waqf by user. He has placed reliance on the provisions of Section 3(g) (i) of the Waqf Act and submitted that it was in fact kabristan zarya, adjacent to kabristan qadimi. Appellant Anjuman Iaslamia Lakhimpur is a registered body. However, for declaring the property as waqf, its registration is not necessary. He has reiterated his earlier submissions and submitted that it was a land situate in the city and consolidation proceedings had no relevance (although P.W. 1 Hakim Manzoor Hussain Khan has admitted in his cross-examination that the consolidation proceedings took place in the area). 13. I have heard learned Counsel for the parties and perused the record. 14. It is noteworthy that while admitting this appeal on 26.2.1997, this Court had not framed any substantial question of law. The Apex Court in recent decisions as in Gurdev Kaur and Others Vs. Kaki and Others, AIR 2006 SC 1975 (Paras 72, 73 and 74 page 565) and Govindaraju Vs. Mariamman, AIR 2005 SC 1008 has held that as per settled law, the scope of exercise of the jurisdiction by the High Court in second appeal u/s 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari Vs. Purushottam Tiwai (Dead) by Lrs., (2001) 3 SCC 179 that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be a "substantial" question of law it must be debatable, not previously settled by the law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. To be a "substantial" question of law it must be debatable, not previously settled by the law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law "involving in the case" it was observed that to be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the Court of law and it must be necessary to decide that question of law for a just and proper decision between the parties. Now after 1976 Amendment in the C.P.C., the scope of Section 100 has been curtailed and narrowed down. According to the legislative mandate, the interference by the Court is permissible only in cases involving substantial questions of law. 15. However, as per learned Counsel for the Respondents, in the present second appeal, if at all, only the following two substantial questions of law arise for consideration : (i) Whether the finding of the two courts below in regard to the graveyard is perverse, specially in view of the fact that admittedly there were certain graves? (ii) Whether the impugned judgment and decree is in violation of Section 66 of the U. P. Act No. 16 of 1960? 16. Here is a case, where a suit for permanent prohibitiory injucntion was filed by the Appellant Plaintiff in the trial court in the year 1973 without seeking the relief of declaration to the effect that the property in suit was a waqf. The Plaintiff-Appellant claimed that the land in suit was a graveyard. The Respondent landlords had categorically denied that it was a graveyard. The land was recorded as a grove in the revenue records like-khasra, khatauni, consolidation records, map etc. In all the entries in the khasra/revenue records relating to 1304F, 1238F and 1345F correspondent respectively to 1897 AD, 1921 AD and 1938 AD, the disputed plot No. 153 has been recorded as a grove. At the time of registration of sale deed on 14.12.1951, the owner of the said plot Mahadeo Prasad and his son Madan Mohan were recorded as holders of said grove, plot No. 153 (new) old number 142. At the time of registration of sale deed on 14.12.1951, the owner of the said plot Mahadeo Prasad and his son Madan Mohan were recorded as holders of said grove, plot No. 153 (new) old number 142. In khasra entries of 1369F, i.e., 1962 AD, the above plot owned by the Respondents was recorded in the name of Smt. Sarvati Devi. In the same khasra of 1369F, the other plots No. 233 and 236 were recorded as kabristan. Thus both the courts below, i.e., the trial court and the appellate court, on the basis of the entries in revenue records have recorded concurrent findings of facts that the plot No. 153 (new) owned by the Respondents had never been a graveyard. In this regard, specific entries regarding kabristan have been recorded for plots No. 233 and 236 (not relating to plot No. 153 owned by the Respondents). Even during consolidation proceedings, the land in question was recorded and always treated as grove land. P. W. 1 Hakim Manzoor Hussain Khan, Secretary of the Anjuman Islamia Lakhimpur, in his statement, has stated that the area was under consolidation proceedings in the Settlement Year 1345F. The courts below have also taken into account the records relating to consolidation proceedings and the relevant entries which showed the land in dispute as a grove land owned and possessed by the Respondents. 17. This Court has held in a decision in Lalbihari and Ors. v. Ram Adhar and Ors. 1985 (3) LCD 415, that as per provisions of Section 57 of the U. P. L. R. Act, 1901, entries in concurrent records of latest settlement are presumed to be correct unless rebutted by cogent evidence. The Appellant has failed to produce any cogent evidence in support of their claim. As per Sections 101 and 102 of the Evidence Act, 1872, the burden of proof certainly rested on the Plaintiff Appellant to demonstrate that the land in dispute was a kabristan or it was dedicated as a waqf. This Court finds strength from a recent decision of Hon'ble Supreme Court in India in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 588 (paras 8 and 9), in deriving the above conclusion. 18. While dealing with the question regarding customary right of burial resulting into creation of waqf, it has been held in a case in Ganpatrao Madhorao Betkar and Ors. 18. While dealing with the question regarding customary right of burial resulting into creation of waqf, it has been held in a case in Ganpatrao Madhorao Betkar and Ors. v. Sheikh Badar Farid Musalman and Ors. AIR 1939 Nag 193, (at page 194, Col. 2 and page 195, column 1), that it is necessary to establish that the custom must be (i) reasonable, (ii) certain, (iii) it must be proved that the user was not permissive, (iv) user was not exercised by stealth, (v) user was not exercised by force, and (vi) that the right had been enjoyed for such a length of time as to suggest that by agreement or otherwise the user has become the customary law of the locality. In Ballabh Das and Anr. v. Noor Mohammad and Anr. AIR 1936 PC 83 , it has been held that upon the burial of a single person, land does not become waqf/number of instances are necessary. The Privy Council further observed that if the Plaintiffs have to make out dedications entirely by direct evidence of burials being made in the ground and without any record, such as khasra of 1868, to help them they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit is a cemetery. In AIR 1934 263 (Oudh), it has been held that grove belonging to Hindu Taluqdar in his possession containing some kachcha graves but shown as grove in village papers, cannot be presumed to be a waqf by user. In Jiwan Singh and Ors. v. Karamdin and Ors. AIR 1927 Lah 664, it has been held that the right to bury dead in land belonging to other person is unknown to the law. In Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, AIR 1976 SC 1569 it has been held that if any member of the public is permitted to be buried in a graveyard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the graveyard has become a public graveyard where the mohammedan public will have the right to bury their dead. It is also well-settled that a conclusive proof of the public graveyard is the description of the burial ground in the revenue records as a public graveyard. In M.P. Wakf Board Vs. Subhan Shah (D) By LRs. and Others, (2006) 10 SCC 696 it has been held that if the nature of dedication of the property does not constitute a waqf within the meaning of the provisions of the Act, it must be proved that it became a waqf by reason of long user. No such finding has been arrived at. Whether a place is a burial ground or not depends on the number of persons buried there or evidence of dedication derived from the testimony of witnesses of reputation. 19. There is substance in the submission of Sri S.K. Mehrotra, learned Counsel for the Respondents that even during consolidation proceedings, admittedly held in the area where the plot in question situate, the disputed plot has been shown as a grove land. Section 7 of the U. P. Consolidation of Holdings Act, 1953, relates to revision of village map. Under this provision, the District Deputy Director of Consolidation (the Collector of the District) is required to cause revision of village of each unit. u/s 8 of the Act, the unit is revised after field to field partal and the current annual register after its test and verification. u/s 8 (2) of the Act, the District Deputy Director of Consolidation is required to cause the preparation of khasra chakbandi in the form prescribed, in respect of all the plots falling in the units. Section 27 of the Act contains the provision for preparation of a new map, field book and record of rights in respect of the consolidation area, on the basis of the entries in the map, as corrected u/s 7. Sub-section (2) of Section 27 of the Act provides that all entries in the records of rights prepared in accordance with the provision of Sub-section (1) shall be presumed to be true until the contrary is proved. Rule 83 of the U. P. Consolidation of Holdings Rules, 1954, provides that the Consolidation Lekhpal shall also examine the conventional signs shown in the map and make necessary correction in respect of all the signs prescribed in the Appendix attached to these rules. Rule 83 of the U. P. Consolidation of Holdings Rules, 1954, provides that the Consolidation Lekhpal shall also examine the conventional signs shown in the map and make necessary correction in respect of all the signs prescribed in the Appendix attached to these rules. Serial No. 31 of the list of the conventional signs contains the mark of kabristan to be made in the map. The submission of the learned Counsel for the Plaintiff Appellant that the plot in question is a kabristan falls to the ground in view of the complete dearth concrete and cogent evidence as envisaged in the aforesaid provisions of law and the authorities of Apex Court referred to above, and by no stretch of imagination it can be held to be a kabristan. 20. It is noteworthy that the Anjuman Islamia Lakhimpur claiming itself to be a charitable social body of local Muslims did not make any endeavour to get the alleged graveyard registered. Section 36 of the new Waqf Act, 1995, provides that every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Board. Section 37 of the said Act provides for a Register of Waqfs to be maintained by the Board. It is relevant to mention here that the land in question was not registered with the Board as waqf ; it does not find mention anywhere in the Register of Waqfs. It is thus amply clear that the land in suit has never been a waqf property. 21. In view of the documentary evidence, the statutory provisions and the evidence discussed by the courts below, it is well established that the concurrent findings of facts recorded by both the courts below are perfectly correct, legal and valid and they are not perverse. These do not give rise to the questions placed by Sri Shafiq Mirza, learned Counsel for the Appellant as substantial questions of law. The graves could be available on a private land. Such burial can take place with the consent of the owner of the land. Mere existence of graves on a private land, grove/agricultural land cannot be branded as waqf qadimi or waqf zarya. There is nothing on record to substantiate the submission put forth by the learned Counsel for the Appellant that the private land, a grove of Respondents, was dedicated as waqf or kabristan. Mere existence of graves on a private land, grove/agricultural land cannot be branded as waqf qadimi or waqf zarya. There is nothing on record to substantiate the submission put forth by the learned Counsel for the Appellant that the private land, a grove of Respondents, was dedicated as waqf or kabristan. It has not been indicated as to who had dedicated the land in question and whether there was any instruction about dedication or creation of waqf in respect of this land. No such mention finds place in the revenue records, khasras relating to 1304F (1897 AD), 1328F (1921 AD) and 1345F (1938 AD) and other records relating consolidation proceedings, etc. 22. As far as the second question relating to the provisions contained in Section 66 of the U. P. Act No. 16 of 1960, which is in pari-materia with the provision contained in Section 90 of the Waqf Act, 1995, is concerned, it may be noted that in the present case, the persons whose relatives are said to have allegedly been buried in the said two graves, have not approached the trial court, appellate court or this Court, raising any objection and claiming these graves to be the graves of their relatives or ancestors. No one including the Appellant has tried that the land in question may be registered as kabristan or waqf property with the Waqf Board. The Waqf Board has not applied at any stage of the above proceedings complaining about non-service of notice and therefore, the provision u/s 66 (3) of the U. P. Act No. 16 of 1960 is not attracted at all. It is settled by this Court in the decision Allah Tala v. Maya Devi, 2005 (23) LCD 1165, that the basic question to be decided before any judgment or order is that the subject-matter of dispute must necessarily be a "waqf property". It has been further held that since there are categorical findings of fact arrived at consecutively by two courts and confirmed in second appeal by this Court, mere saying that the property in question is a waqf property and therefore, the entire proceedings are rendered void, is not correct. 23. In view of above discussion, it is amply clear, and as has been rightly recorded by the courts below while recording concurrent findings of facts, that the land in suit was a grove of the Defendant Respondents. 23. In view of above discussion, it is amply clear, and as has been rightly recorded by the courts below while recording concurrent findings of facts, that the land in suit was a grove of the Defendant Respondents. It was not a graveyard or waqf but the same was the property of the Respondents duly recorded in the revenue and consolidation records as a private grove. The concurrent findings of facts recorded by both the courts below do not suffer from any illegality or infirmity so as to give rise to any substantial question of law. 24. Accordingly, this second appeal is devoid of merit and the same is dismissed with costs.