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Himachal Pradesh High Court · body

2017 DIGILAW 1246 (HP)

Durga Devi v. Nihal Dass

2017-11-10

SURESHWAR THAKUR

body2017
JUDGMENT Sureshwar Thakur, J. - The plaintiff''s suit for rendition of a declaratory decree in respect of hers being entitled to be declared as exclusive owner of the suit property, with, consequential relief of permanent prohibitory injunction being rendered qua thereto, was, under concurrent pronouncements recorded thereon by both the learned Courts below, hence, dismissed. 2. Briefly stated the facts of the case are that the plaintiff filed a suit claiming therein relief of declaration to the effect that she is owner in possession of land comprised in khata No.1021/2, Khatauni No.1787, khasra No.2321, measuring 1-14-0 bighas as described in copy of jamabandi for the year 1991-92, situated in phati and kothi Naggar, Tehsil and District Kullu, H.P. and as such collusive revenue entries showing defendant No.1 as owner in possession of the suit land are wrong, illegal and not binding upon the plaintiff with consequential relief of injunction restraining the defendant from claiming any right, title or interest over the suit land. It is averred that one Karmu son of Shri Moti resident of village Kutbai (Naggar), husband of plaintiff was owner in possession of the suit land. Shri Karmu died on 24.6.1985. The plaintiff being his widow is the sole heir of deceased Karmu and as such has succeeded to the suit land on the basis of intestate succession, hence, she is owner in possession of the suit land. The defendants on the basis of some forged and fictitious will dated 27.05.1985 set up by him in connivance with the revenue officials, got mutation numbers 4152 and 4153 dated 25.8.1985 of phati Nakthan and Naggar attested and sanctioned in their names. However, the suit land was not included in the aforesaid, mutation and the mutation in respect of the suit land was not attested and sanctioned in the name of the defendant on the basis of the alleged will set up by them. It is further alleged that the plaintiff had filed a civil suit No.186/85 wherein he had claimed herself as owner in possession of the property and estate of deceased Karmu and had also challenged the aforesaid mutations. The aforesaid civil suit was dismissed by the learned Sub Judge 1st Class, Kullu on 24.09.1987. It is further alleged that the plaintiff had filed a civil suit No.186/85 wherein he had claimed herself as owner in possession of the property and estate of deceased Karmu and had also challenged the aforesaid mutations. The aforesaid civil suit was dismissed by the learned Sub Judge 1st Class, Kullu on 24.09.1987. However, in the civil appeal No.306/87-76/88, the said judgment and decree passed by the learned Sub Judge 1st Class, Kullu was set aside by the learned District Judge, Mandi, Kullu and Lahul Spiti vide judgment and decree dated 10.9.1990 and she was declared owner in possession of the suit property in the said civil suit and the will set up by the defendants was rejected and mutations were declared null and void. In Regular second appeal No.483 of 1990, the judgment and decree passed by the learned District Judge, Mandi, Kullu and L& S was affirmed and maintained by the High Court on 20.8.1991. It is further averred that in the month of February 2001, the plaintiff obtained parcha jamabandi of suit land in order to raise crop loan from the bank and on obtaining such parcha jambandi, she was surprised to know that Patwari Halqa without any authority of law incorporated red entries in the remarks column showing therein that mutation No.4192 had been attested and sanctioned in respect of the suit land in the name of defendants and the said wrong revenue entries were carried out in subsequent jamabandies wrongly. The plaintiff made further inquiries and obtained the relevant documents and came to know that at the time when the previous suit was filed by the plaintiff, the suit land was not included in the said suit because no mutation with respect to the suit land was attested in the name of defendants and further that Patwari Halqua had not issued parcha jamabandi of the suit land although the same was demanded by the plaintiff of the entire property left by Karmu. In the said suit the defendants did not raise any objection as the suit land was not included in the same. The plaintiff came to know about the aforesaid wrong and collusive revenue entries in the first week of August, 2001 and asked the defendant to get the entries corrected but without any result and they started causing unlawful interference in the ownership and possession of the plaintiff. 3. The plaintiff came to know about the aforesaid wrong and collusive revenue entries in the first week of August, 2001 and asked the defendant to get the entries corrected but without any result and they started causing unlawful interference in the ownership and possession of the plaintiff. 3. Defendant No.1 contested the suit and filed written statement, whereas, defendant No.2 has not contested the suit and he was proceeded against ex-parte. Defendant No.1 in his written statement taken preliminary objections, inter alia locus standi, maintainability, limitation, valuation and the suit filed by the plaintiff is barred by the provisions contained in Order 2, Rule 2 and Section 11 of the CPC. On merits, it is admitted that Karmu died on 24.6.1985, but rest of the claim set up by the plaintiff has been termed as wrong and incorrect. It has been pleaded that on the death of Karmu the suit land came in the possession of defendant No.1 on the basis of Will dated 27.3.1985 which was duly executed by Karmu deceased on the basis of which mutations of inheritance were sanctioned. The suit land has been correctly entered in the ownership and possession of defendant No.1. The suit land was not the subject matter of Civil suit No.189/85 and subsequent Civil Appel No.306/87-76/88 and RSA No. 483/90 of which the plaintiff had full knowledge and notice but the plaintiff intentionally omitted to sue in respect of the suit land in the said civil suit. Hence, the matter was directly and substantially in issue in the previous suit, which is directly and substantially in issue in the present suit, hence, the suit is barred under the provisions of Order 2, Rule 2 and Section 11 of the CPC. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is the owner in possession of the suit land, as alleged? OPP. 2. Whether the plaintiff is entitled to on the injunction as prayed for? OPP. 3. Whether revenue entries are wrong and illegal, as alleged? OPP 4. Whether the plaintiff has locus standi to sue? OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the suit is time barred? OPD. 7. Whether the suit is hit by Order 2, Rule 2 and Section 11, CPC as alleged, if so its effect? OPP 4. Whether the plaintiff has locus standi to sue? OPP. 5. Whether the suit is not maintainable in the present form? OPD. 6. Whether the suit is time barred? OPD. 7. Whether the suit is hit by Order 2, Rule 2 and Section 11, CPC as alleged, if so its effect? OPD. 8. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 9. Whether late Karmu executed a valid Will dated 27.03.1985 in favour of the defendants, as alleged? If so its effect?OPD. 10. Whether the plaintiff has a cause of action? OPP. 11. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the plaintiff/appellant before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal before this Court wherein she assails the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 17.07.2006, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- a) Whether a suit can be said to be barred by Section 11 of Civil Procedure Code when the suit property that is the subject matter of the case was not involved earlier in any case through the parties to the case might have been involved earlier in litigation qua some other property? b) Whether the Courts below have erred in coming to the conclusion that the suit filed was barred by provisions of Order 2, Rule 2 of the Civil Procedure Code when there is nothing on record to suggest that the plaintiff had willfully or otherwise omitted the subject matter of the present case from the earlier suit as the plaintiff was not aware of the revenue entires which were challenged in subsequent suit? c) Whether the learned Courts below have erred in not appreciating that Order 2, Rule 2 of the CPC does not require that when several causes of action arises from one transaction the plaintiff should sue for all of them in one suit? c) Whether the learned Courts below have erred in not appreciating that Order 2, Rule 2 of the CPC does not require that when several causes of action arises from one transaction the plaintiff should sue for all of them in one suit? d) Whether the learned Courts below have totally misread and mis appreciated the facts of the case and evidence on record? Substantial questions of Law No.1 to 4. 7. Uncontrovertedly, the plaintiff is the widow of deceased Karmu. Uncontestedly, during his life time, the aforesaid Karmu, was, the exclusive owner in possession of the suit land, borne in the extant suit also the extant suit land is partially similar vis-a-vis the one borne in the previous suit bearing Civil Suit No. 180/1985 besides the parties at contest hereat are analogous vis-a-vis the previously litigating parties. However, in the earlier suit, bearing C.S. No. 180 of 1985, the suit khasra numbers, in respect whereof the apposite relief of declaration, is now sought by the plaintiff, remained omitted to be included therein. In the previously instituted suit, wherein, the parties at contest hereat were analogous vis-a-vis the litigants therein, the plaintiff espoused the hereinafter extracted reliefs:- "The plaintiff be declared as owner in possession of the land: (A) (i) / share of land measuring 3-11-0 bighas, comprised under khasra Nos. In the previously instituted suit, wherein, the parties at contest hereat were analogous vis-a-vis the litigants therein, the plaintiff espoused the hereinafter extracted reliefs:- "The plaintiff be declared as owner in possession of the land: (A) (i) / share of land measuring 3-11-0 bighas, comprised under khasra Nos. 707, 813, khata Khatauni No. 661 min/1437, incorporated in the jamabandi for the year 1970-71 of phati Nathan, Kothi Naggar, Tehsil and District Kullu (ii) full share of land measuring 1-4-0 bighas, comprised under khasra No.709, khata khatauni No.661 in/1438, incorporated in the jamabandi for the year 197071 of phati Nathan, Kothi Naggar, (iii) / share of land measuring 2-6-0 bighas, comprised under khasra No.711 and 710, khata khatauni NO.661 min/1439, incorporated in the jamabandi for the year 1970-71 of phati Nathan, kothi Naggar, Tehsil and District Kullu, (iv) owner in possession of three storeyed slate roofed house, having 3 rooms along with verandahs in its surrounding three sides measuring 16 x 16 hath, situated on phati abadi, surrounded from North House of Pushpa, East orchard & road, west Sharshi of Pushpa, South Khal of Plaintiff, in phati and kothi Naggar, Teshil and District Kullu (v) / share of khal measuring 19x 19 hath, situated in Phati Abadi, surrounded from North-House of plaintiff, East Orchard & Road, west-Sharhi of plaintiff and South-path, in Phati and Kothi Naggar, Tehsil and District Kullu, H.P. (vi) full share of land measuring 0-4 biswas, comprised under khasra No.2329 and 2331, khata khatauni No.812 min/1589, incorporated in the jamabandi for the year 1976-77 of phati Naggar Kothi Naggar, Tehsil and District Kullu B. Tenant in possession as Pujari of Devta Takar Nar Singh of Naggar of land;- I)/ share of land measuring 3-5-0 bighas, comprised under khasra No.2323, khata khatauni No.812 min/1584, incorporated in the jamabandi for the year 1976-77 of phatai and Kohi Naggar, Tehsil and District Kullu. ii) / share of land measuring 19-19-0 bighas, out of total land measuring 20-5-0 bighas, comprised under khata Khatauni No.812min/1585, comprised under khasra No.1904, 2326, 2425, 2424, 2426, 1905, 2306, 2307, 2319, 2322, 2325, 2328, 2332 and 2300, incorporated in the jamabandi for the year 1976-77 of Phati and Kothi Naggar, Tehsil and District Kullu, H.P. (to be called hereinafter as suit land), being inherited by the plaintiff from her husband Shri Karmu deceased as his widow and that the plaintiff is not bound by the mutation Nos. 4192 and 4193, attested by the A.C. 2nd Grade, Kullu on 25.8.1985, of Phati Naggar, with respect to the property situated in Phati Naggar, on the basis of alleged Will purported to have been executed by Shri Karmu deceased on 27.5.1985, in favour of defendants with consequential relief of injunction restraining the defendants from causing any sort of interference with the same." The defendants therein propounded, the Will of aforesaid Karmu. However, under a decision recorded upon Civil Suit No. 180 of 1985, verdict whereof is borne in Ex.D-5 & Ex. D-6, the learned trial Court hence dismissed the aforesaid suit. Nonetheless, the learned First Appellate Court allowed Civil Appeal No. 306 of 1987/76 of 1988 preferred before it by the aggrieved plaintiff AND hence, under Ex. D-7, decreed the plaintiff''s suit, whereby, the Will of deceased Karmu as propounded by the defendants, was invalidated. The verdict borne in Ex. D-7, stood, affirmed by this Court, under, its verdict recorded upon RSA No.483 of 1990. Consequently, the verdict rendered in the previous suit has attained conclusive binding effect, predominantly, with respect to the Will of deceased Karmu, as propounded by the defendants being declared to be a fictitious document. 8. Both the learned Courts below declined vis-a-vis the plaintiff, the apposite declaratory relief, with respect to the extant suit khasra numbers, on anvil, of theirs attracting the mandate of Order 2, Rule 2, of the CPC, provisions whereof stand extracted hereinafter:- "2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." Attraction(s) whereof, occurred, (i) upon anvil of, conclusive verdicts being pronounced by Courts of law, in the earlier suit inter se analogous parties thereat vis-a-vis contesting parties hereat, (ii) besides on anchor of the plaintiff not including in the previous suit, the extant suit khasra numbers, as now stand included in the extant suit, (iii) whereas, hers being statutorily enjoined to also include therein the extant suit khasra numbers, (iv) besides with hers not seeking leave of the court, to subsequently sue in respect of the extant suit khasra numbers, thereupon, both the learned Courts below concluded, of the plaintiff (a) intentionally relinquishing, for espousal, in the earlier suit, any relief vis-a-vis the extant suit khasra numbers; (b) her omission to include the extant suit khasra numbers in the previous suit, now estopping her, to, in respect thereto hence claim the apposite declaratory decree. 9. Before proceeding to make any pronouncement upon the validity(ies) of attraction visa-vis the extant suit, the mandate of the provisions borne in Order 2, Rule 2 of the CPC, it is imperative to allude, to the apposite explicatory averments borne in paragraphs No.4,5 and 6 of the plaint, whereupon the plaintiff, stood hence precluded to, in the earlier suit, include therein the extant suit khasra numbers, paragraphs whereof read as under:- "4. That now in April, 2001, the plaintiff obtained the parcha jamabandi of the suit land in order to raise the crop loan from the bank and when she obtained the copy of the jambandi of the suit land, she was surprised that the patwari halqua without any authority of law, had given the red entries in the remarks column of the jamabandi, showing therein that the mutation NO.4192, has been attested and sanctioned and then names of the defendants with respect to the suit land also, and on the basis of such wrong red entries the names of the defendants were carried out in the subsequent jamabandies and subsequently the name of the defendant No.1 was wrongly carried out in the subsequent jamabandi. The plaintiff made further enquiry and obtained the relevant papers and documents and came to know that at the time when the previous suit was filed by the plaintiff, the suit land was not included in the previous suit, as because no mutation with respect to the suit land was attested in the names of the defendants, and further that the patwari halqua had not issued the parcha jamabandi of the suit land, though the parcha jamabandies were demanded with respect to the entire property left by Shri Karmu husband of the plaintiff. Further there was no objection on the part of the defendants that the suit land is not included in the aforesaid civil suit. 5. That when the plaintiff came to know about the aforesaid wrong and collusive revenue entries, she requested the defendants to get the wrong entries correct, but the defendants instead admitting the claim of the plaintiff since the fist week of August, 20-01, started causing unlawful interference in the ownership and possession of the plaintiff concerning the suit land and threatening to dispossess the plaintiff therefrom, for which the defendants have got no right. 6. 6. That mutation No.4192, there was no reference of the suit land and the suit land was never mutated by the revenue officer in the name of the defendants and moreover in the aforesaid civil appeals decided by the learned District Judge, as well as by the Hon''ble High Court of Himachal Pradesh, the aforesaid courts have rejected the Will set up by the defendants and have held the plaintiff as the sole heir of the deceased Shri Karmu and set aside the mutation No.4192, and as such the Patwari halqua had wrongly carried entries of ownership and possession in the name of the defendants and then in the name of the defendant No.1, which entries are collusive, wrong, illegal, against law and facts and as such the plaintiff is not bound by the same." A circumspect reading of the apposite afore extracted averments, reveal, (i) of the plaintiff being precluded to in the earlier suit, hence include the extant suit khasra numbers, exclusion whereof springing from (ii) no mutation in respect of the extant suit khasra numbers being attested by the Revenue Officer vis-a-vis the defendants AND visa-vis the extant suit khasra numbers; (iii)) the Patwari halqua, not, issuing revenue records apposite to the extant suit khasra number(s), despite, hers making demand(s) thereof, upon the Patwari and (c) the defendants in their written statement instituted to the previous suit, not, making any espousal of theirs holding any right vis-a-vis the extant suit khasra numbers. Testifications were rendered by the plaintiff in proof of the aforesaid averments cast in the extant suit. The defendant(s) for succoring their contentions reared in their written statement (a) of the plaintiff thereat, holding, the apposite knowledge in respect of the extant suit khasra number, knowledge in respect whereof, held, by the plaintiff, arising from theirs holding possession of the suit khasra numbers, (b) did not adduce any affirmative evidence thereon, except their counsel putting suggestions to the plaintiff, of hers not holding possession of the suit khasra numbers, rather theirs holding possession thereof, suggestion whereof stood denied by her; (c) apart therefrom, the defendants for succoring the aforesaid contentions reared by them, in their written statement, did not adduce, any affirmative evidence thereon, rather their counsel after tendering certified copies, of, the previous conclusive verdicts recorded upon the previous suit, hence closed their evidence. 10. 10. The aforesaid extracted averments, cast, in the plaint and omission(s) of the defendants, in adducing cogent evidence, in display of theirs holding possession, of the extant suit khasra numbers, does gain, the hereinafter inferences (a) of the plaintiff holding possession of the suit khasra numbers; (b) hers proving of the defendant(s) in the first week of August, 2001, hence making unlawful interference(s) besides invasions, upon the suit khasra number(s), for unsettling her possession vis-a-vis the extant suit khasra numbers. 11. Be that as it may, with all the apposite explication(s) meted by the plaintiff in the extant suit being hence proven, whereupon she stood precluded, to in the earlier suit, hence, include the extant suit khasra number(s), (i) thereupon, it is to be determined, upon an incisive reading of the apposite provisions, occurring in Order 2, Rule 2, of, the CPC, qua whether attraction of mandate(s) thereof vis-a-vis the extant suit, being valid or not. (ii) Both the learned Courts below, per se ipso facto, on anvil of inter se analogity of contesting parties in the previous suit vis-a-vis the contesting parties hereat also upon anchor of the plaintiff, excluding, the extant suit khasra numbers, in her previous suit, (iii) made a conclusion of hers, being in respect thereof hence precluded, to institute the extant suit. (iv) However, the aforesaid conclusion is drawn, on a gross mis-appraisal, of the mandate borne in the provisions of Order 2, Rule 2, of the CPC besides spurs from a gross ignorance, of the apposite proven aforesaid apposite explications purveyed in the extant suit, by the plaintiff, explication whereof rather attract (v) the innate implied principles, whereupon, the rigor of the mandate of provisions of Order 2, Rule 2 of the CPC, stands relaxed. 12. The omission of the plaintiff, to, in the earlier suit, sue in respect of the extant suit khasra numbers, whereupon, she is concluded to hence in respect(s) thereof, stand precluded, to institute the extant suit, ought to be a proven intentional omission. 12. The omission of the plaintiff, to, in the earlier suit, sue in respect of the extant suit khasra numbers, whereupon, she is concluded to hence in respect(s) thereof, stand precluded, to institute the extant suit, ought to be a proven intentional omission. Even though, the apt hereinafter coinage occurring in the opening line of, sub rule 2 of Order 2, Rule 2 of the CPC, of, ''plaintiff omits to sue in respect of'', does not, make any open candid bespeaking, of the apposite omission, of the plaintiff, necessitating proof of its hence intentionally spurring, yet the apposite omission(s) of the plaintiff are enjoined to be evidently proven to be intentional, (ii) given the subsequent thereto, coinage, borne therein ''intentionally relinquishes, any portion of his claim'' warranting its being read not in isolation from earlier thereto portion of sub rule 2 to Order 2, Rule 2 of the CPC. (iii) In sequel upon a cumulative reading, of, the coinage ''where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim'', does beget a conclusion of with the word ''intentional'' occurring prior to ''relinquishes'' being also intended by the legislature, to also being transposed into earlier thereto coinage ''omits to sue in respect of''. (iv) Unless the aforesaid harmonious reading, is purveyed, to the aforesaid coinage (s) existing in sub rule 2 of Order 2, Rule 2 of the CPC, thereupon, it would sequel, a harsh onerous interpretation being purveyed thereto, (v) thereupon, despite, the plaintiff not evidently holding knowledge in respect of her entire claim, the exacting rigor(s) thereof being encumbered upon her, whereupon, gross injustice would accrue vis-a-vis the plaintiff. Since, with evidently proven, tangible explication(s) standing purveyed by the plaintiff in respect of her omission(s) to, in th earlier suit, hence claim relief in respect of the extant suit khasra numbers, (vi) thereupon, when her omission(s) are also obviously not ingrained, with any element of hers holding knowledge(s) in respect thereof, (vii) concomitantly with hers hence, not, intentionally making the relevant omission(s), thereupon, it was inapt for the learned Courts below, to apply the rigor of the mandate enshrined in the provisions of Order 2, Rule 2 of the CPC, (viii) especially when the area of the suit khasra numbers is minimal also when the defendants are unable to, for the aforesaid reason(s) unflinchingly, prove qua theirs holding possession, of the suit khasra numbers, rather with the plaintiff, proving of hers holding possession of the suit khasra number and hers also proving of the defendants making unlawful interference upon them, (ix) predominantly, also when all the aforesaid fact(s) were camouflaged by the defendant(s) in their written statement, instituted to the previous suit. (x) Paramountly also for disabling, the defendants, from making any untenable displacements of the vigour of conclusive previous renditions pronounced by Courts of law, whereupon, their espousal, for, vindicating their claim(s) with respect to the property of, one, Karmu, on anvil of theirs holding his testamentary disposition, stood hence invalidated. (xi) Thereupon, any declining of relief vis-a-vis-a-vis the plaintiff by unlawfully attracting vis-a-vis her extant suit, the mandate of Order 2, Rule 2 of the CPC, would, rather unbeffitingly perpetuate gross injustice upon her. Accordingly, all the substantial questions of law are answered in favour of the plaintiff/appellant and against the defendants/respondents. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as well as by the learned trial Court are not based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have excluded germane and apposite material from consideration. 14. In view of the above discussion, the instant appeal is allowed and the impugned judgments and decrees rendered by both the learned Courts below are set aside. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have excluded germane and apposite material from consideration. 14. In view of the above discussion, the instant appeal is allowed and the impugned judgments and decrees rendered by both the learned Courts below are set aside. Consequently, the suit of the plaintiff is decreed to the effect that she is owner in possession of land comprised in khata No.1021/2, Khatauni No.1787, khasra No.2321, measuring 1-14-0 bighas as described in copy of jamabandi for the year 1991-92, situated in phati and kothi Naggar, Tehsil and District Kullu, H.P. and the revenue entries showing defendant No.1 as owner in possession of the suit land are wrong, illegal and not binding upon the plaintiff. Further, the defendants are restrained from interfering or claiming any right, title or interest over the suit land. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back.