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PETITIONER: RAJ RANI & ANR.

       Vs.

RESPONDENT: KAILASH CHAND & ANR.

DATE OF JUDGMENT17/02/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) KAILASAM, P.S.

CITATION:  1977 AIR 1123            1977 SCR  (3)  18  1977 SCC  (3) 468

ACT:             Burden  of Proof under Art. 142 of the  Limitation  Act,         1908--A plaintiff admitting dispossession in suits based  on         title,  had to prove that he was in actual  or  constructive         possession within twelve years.

HEADNOTE:             The  suit  property  of one Kalyan Chand  in  the  joint         possession  of  Shital  Prasad (son  1/3),  Bansidar  (great         grandson  1/3) and Sheo Shankar Sangamlal and Kripa  Shankar         (1/9+1/9+1/9  grandsons)  was  mortgaged  by  Sheo  Shanker,         Sangamlal  and  Bansidhar  acting on their  own  behalf  and         allegedly on behalf of Kripa Shankar (who was a minor then).         Shital  Prasad  was not a party to the mortgage.   When  the         whole  house  was  sold in Court auction  on  3-10-1937,  in         realisation  of the mortgage money decreed,  one  Bhagwandas         father  of  Kailash Chand (Respondent No. 1)  purchased  the         said  house  and took symbolical possession  on   12.9.1938.         ’The residential portion of  the house was in occupation  of         Kripa  Shankar  (Appellant’s husband) and  Devika  Rani  w/o         Shital  Prasad who established her right to 1/3 share  by  a         decree  obtained on 22-1-1941.  Another suit filed by  Bhag-         wandas  for a declaration and possession over 2/3 share  for         ejecting Kripa Shankar was decreed  on 27-8-1945, and, again         symbolical  possession was obtained on 21-11-46 under   O.21         r.96  C.P.C. Kripa Shankar died in 1953 leaving  behind  the         appellants Raj Rani (wife) and Kali Charan (son).   Respond-         ent No. 1 son of  the auction purchaser Bhagwan Das filed  a         suit   No.  475/1959  on or  about 10-8-1959  for  partition         and possession over 2/3 share of the portion in addition ’to         certain  claims of rents illegally collected and the  amount         of  tax  unpaid by the appellants.  The  plaint  allegations         were:  (i) The auction-purchaser has been in possession over         2/3 part of the house with Devika Rani who had 1/3 share  in         the house; (ii) The defendants had no concern with 2/3 share         in  the said ’house themselves or through any  other  person         were  not in possession or in occupation of any part of  the         above said house at any time as owners; (iii) The  plaintiff         was being obstructed in looking after the house and  realis-         ing rents and that the defendant had misled some tenants and         realised  the  rents due to him.  The  appellant  defendants         took  the plea (i) the mortgage was not valid as the  amount

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       was not borrowed for legal necessity; (ii) Even if the house         "had been sold in execution of the mortgage, they have  been         openly  denying the rights of the plaintiff and had been  in         adverse  possession and occupation of the property for  more         than  12 years so that, even if the plaintiff or his  prede-         cessors  had  any  right, it had been  extinguished  by  the         operation  of  law limitation. The Trial Court  decreed  the         suit and the first appellate court confirmed it. The  second         appeal filed in the High Court was also dismissed.         Allowing the appeal by special leave, the Court, HELD:             (1)  The High Court in a second appeal and the  Subordi-         nate  courts  failed to determine the  crucial  question  of         actual  or  even constructive possession  of  the  plaintiff         within twelve years and give a finding to that effect. [24E]             (2) The plaintiff had to Drove that he was in actual  or         constructive  possession within twelve years.  It  would  be         enough if he establishes that he was in constructive posses-         sion  within twelve years by receipts of rent or  otherwise.         [25F]             (3) A decision on the question whether Art. 142  Limita-         tion Act applies to a case, really depends upon an interpre-         tation of the  pleadings.  In  cases governed by the  former         Limitation  Act, at any rate, a plaintiff admitting  dispos-         session in suits based on title, had to Drove that he was in         actual  or  constructive  possession  within  twelve  years.         [25C-E]         19             (4)  The allegations in the plaint amount to an  allega-         tion  that  by asserting their ownership  and  inducing  the         tenants  not to pay rents to the plaintiffs, the  defendants         had dispossessed the plaintiff.  In such a case, even if   a         defendant  in actual possession could be deemed to  be  ini-         tially a co-sharer, the plaintiff would be really  asserting         that the co-sharer had dispossessed or ousted him.  Hence an         ouster  having been admitted in the plaint the burden  would         lie  upon the plaintiff of proving his case that the  ouster         had  taken place within twelve years as Art. 142 of the  old         Limitation Act applied to such a case.  In the instant case,         even  if the symbolic delivery of possession to a  co-sharer         could  be said to have interrupted any  adverse  possession,         that interruption took place beyond twelve years [23B-C]             Bindhyachal. Chand & Ors. v. Ram Gharib Chand & Ors. AIR         [1934] All. 993. referred to.         Manikyala  Rao  v. Narasimhaswami AIR 1966 SC  470,  distin-         guished.             Appeal  allowed  and case remanded  to  first  Appellate         court  to  determine  whether plaintiff  was  in  possession         within the period of limitation.

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1984 of 1968.             (Appeal  by  Special  Leave from   Judgment  and  Decree         dated 4.12.1967 of the Allahabad High Court in Second Appeal         No. 3224 of 1963 )             S.C.  Manchanda,   M.L. Chitravanshi and  M.V.  Goswami,         for the appellants.         J.P.  Goyal, V.C. Prashar and Shreepal Singh,  for  respond-         ents.         The Judgment of the Court was delivered by             BEG,  C.  J. This is the defendant’s appeal  by  special         leave against the judgment and decree of the Allahabad  High         Court  decreeing  the suit of the plaintiff  respondent  for         partition and separate possession of 2/3 share of House  No.

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       397 in  Katra, Allahabad.  The  plaintiff claimed to be  the         sole  heir of the auction purchaser of the  house  in  Octo-         ber,  1937, at a Court sale in execution of a  mortgage  de-         cree.  The house had been mortgaged by Sharda Prasad  repre-         senting  the  line of one son of Kalyan  Chand,  the  common         ancestor  and  original owner, and Sheo Shankar  and  Sangam         Lal  representing the line of another son of  Kalyan  Chand.         Kripa  Shanker, now represented by the two  appellants,  his         widow  and  son, was said to be a minor, and  although,  his         brothers acted on his behalf, the  defendants  alleged  that         the loan and the mortgage were not binding upon him for want         of  legal necessity.  Shital Prasad, a son of Kalyan  Chand,         was not a party to the mortgage deed.  Hence, Sital Prasad’s         share could not be said to have been sold.  On 12th  Septem-         ber,   1938, symbolical possession was taken by the  auction         purchaser,  and, again in 1946, in proceeding for  execution         of a decree.  But, the house continued to be in the  occupa-         tion of Kripa Shanker, the husband of the appellant Raj Rani         and  the father of the appellant Kali Charan.  Devika  Rani,         widow of Shital prasad, who had filed a suit in 1937 for the         declaration  of  her rights to 1/3 of the house,  after  her         objections  under Order XXI, Rule 100 of the Code  of  Civil         Procedure had been dismissed, and obtained a decree from the         appellate Court on 22nd         20         January,  1941,  with the result that  Shital  Prasad’s  1/3         share  went  out,  had not been impleaded in  the  suit  now         before  us.  In 1945, the respondent-auction purchaser  (now         represented  by  son, Respondent No. 1 ) had  filed  a  suit         against  Kripa Shanker and another for a declaration of  his         rights  in  respect of 2/3 share in another  house  and  the         ejectment of Kripa Shanker and  Prayag Das from that  house.         Although  that  suit was in respect of  another  house,  the         defendants alleged that, in that suit, the auction purchaser         had said that the house in dispute in the case now before us         was  also  in possession of Kripa Shanker as  a  trespasser.         Kripaa  Shanker died in 1953 leaving the appellants in  pos-         session as his heirs.             The  suit now before us was filed on 10th August,  1959.         It was alleged there that,  although the  auction  purchaser         had   obtained  possession  of the whole  house,  yet,  Smt.         Devika Rani, the widow of Shital Prasad having continued  in         possession  over  1/3 share, her claim to that  portion  had         been accepted so that it was no longer in dispute.  But,  it         was  alleged that the auction purchaser has been in  posses-         sion  over 2/3 part of the house together with  Devika  Rani         who  had 1/3 share in the house.  It was also alleged  that,         after the death of Devika Rani, one Sankata Prasad,  defend-         ant  No. 3, had started giving himself out as the  owner  of         1/3  share, on the basis of a giftdeed of 1953’ in  his  fa-         vour,  and that defendant No. 1, Raj Rani, had  been  giving         out that Sankata Prasad had  executed a  sale-deed in favour         of Kripa Shanker, defendant No. 2.  In para 8 of the  plant,         however, it is alleged:  "The defendants had no concern with         the  2/3 share in the said house themselves or  through  any         other person nor were they ever in possession or in  occupa-         tion  of any part of above owners".  It is also  alleged  in         the  plaint that the plaintiff--auction purchaser’s son  had         been,  and, before  him  the  auction-purchaser had been  in         possession  of  the house.  Furthermore it is  alleged  that         "Raj  Rani had, in collusion with Sankata Prasad,  defendant         No. 3, Obtained a false sale-deed in favour of defendant No.         2  in respect of the 1/3 share of the said house and  misled         some tenants in the said house and illegally prevented  them         from  paying to the plaintiff his share in the  rent".   The

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       plaintiff, therefore, claimed to be entitled to recover  the         rents  also of amounts wrongly realised by the defendants  1         and  2,  the appellants before us. In paragraph  10  of  the         plaint,  it Was stated that the defendants did not  pay  any         taxes  to  the Municipal Board which had to  file  suit  for         their recovery which were decreed.    The plaintiff,  howev-         er,   alleged that he had paid up the  decretal  amounts  in         excess of the 2/3 share which belonged to the plaintiff. The         plaintiff  also  alleged  that he was  being  obstructed  in         looking after the house and realising rents.  Hence, accord-         ing  to the plaintiff, he had to serve a notice  dated  23rd         April, 1959, asking the defendants to partition the  proper-         ty.  The plaintiff alleged that the cause of action "accrued         to  the plaintiff firstly in 1956 and after that on the  end         of each month when the defendants illegally received  plain-         tiff’s share in the rent from the tenants and did not pay to         the  plaintiff and then on 15-11-58. When the plaintiff  has         to  pay excess amount to the Municipal Board on  account  of         the defendants and the on 23-4-59 and, lastly, in May, 1959,         when the defendants refused to partition         the  plaintiff’s share in the said house, within the  juris-         diction of this Court and this Court has the jurisdiction to         try this suit".              The  defendants-appellants  had  denied   any   concern         with  the mortgage.  Apparently, their case was that as  the         husband of Raj Rani, appellant No. 1 and the father of  Kali         Charan,  appellant  No. 2, was a minor at the  time  of  the         alleged  mortgage and his brother, not having  borrowed  the         money for any legal, necessary, could not bind Kripa.  Shan-         ker or his heirs.  Furthermore, the defendants pleaded that,         even  if the house’ had been sold in execution of the  mort-         gage  decree,  the defendants-appellants "have  been  openly         denying the rights of the plaintiff and had been’ in adverse         possession  and occupation of the property for more than  12         years so that even if the plaintiff or his predecessors  had         any right, it had been extinguished by the operation of  law         of limitation".              The first question, on pleadings set out above, for the         trial. Court to determine was: has the plaintiff come with a         plea of dispossession by the defendants so that Article  142         of  the old Limitation Act was applicable to. The case,  or,         had  the defendants, having set up the plea of adverse  pos-         session, to establish an ouster in order to discharge their         burden  of proof under Article 144 of the Limitation  Act  ?         In view of section 3 of  the  old  Limitation  Act,  it  was         incumbent  on the  Court   to  determine  whether  the  Suit         was filed  within time, even if the plea of  limitation  had         not been taken, when the question had been raised. Section 3         (1) provided:                       "3  (1). Subject to the  provision   contained                       in   sections 4 to 24 (inclusive), every  suit                       instituted, appeal preferred, and  application                       made  after  the prescribed  period  shall  be                       dismissed,  although limitation has  not  been                       set up as a defence."                       The  correct procedure for the Court to  adopt                       was not only to frame an issue on the question                       of limitation but to determine whether it  was                       governed by Article 142 or by  Article 144  of                       the Limitation Act.  The trial Court did frame                       an  issue  indicating  that  Article  142  was                       applicable.   This was issue No. 2  framed  as                       follows:                       "Whether the suit is within limitation"?                           The  trial Court observed:  "It  is  also.

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                     true that if the suit of the plaintiff is  not                       established  to be within limitation, that  is                       to  say that, if the possession of the  plain-                       tiff  is  not even within 12 years,  the  suit                       must  fail  as the rights  of  the  plaintiffs                       would  be deemed to have been extinguished  by                       the adverse possession of  defendants 1 and 2,                       or   their  Predecessor-in-interest,   namely,                       Kripa Shankar".  All this shows that the trial                       ’Court  was  applying Article 142 of  the  old                       Limitation Act.  We do not, however, find  any                       finding  given  by  the trial  Court  on’  the                       question whether, and, if so when and how, the                       plaintiff  was in actual or constructive  pos-                       session of any part of the house.  If  Article                       142  applied, it meant that the plaintiff  had                       admitted  dispossession.   If  this  was   the                       case,  the   following finding  by  the  trial                       Court  on the trial of the plaintiff seems  to                       us to be premature:                       22                             "Now it will be noted that there has not                       been  any partition between the  plaintiff  on                       the  one  hand and the other one  third  share                       holder Smt. Deoka or her successor-in-interest                       on the other hand.  Smt. Deoka was  admittedly                       a  relation  of Kripa Shanker   and  there  is                       nothing   unusual  if Smt. Deoka  had  allowed                       Kripa Shanker to continue to live in the  suit                       premises  under  the  protection  of  her  1/3                       share.  The consistent Municipal receipts, the                       litigation  with  tenants, and  over  all  the                       title  deeds of the plaintiff; they all go  to                       lend support to the plaintiff’s case".                           In the first appeal against that judgment,                       it was again not decided anywhere what Article                       of the Limitation Act applied to the case.  It                       appears  to  us that the appellate  Court  had                       also  not  come  to the grips  with  the  real                       question to be determined.  It said:                            "It  was alleged that Kripa  Shanker  had                       taken  possession over the house. The  learned                       counsel  for the appellant argued  that  these                       documents  showed that  Kripa Shanker  was  in                       possession  over  the entire  house  and  that                       Bhagwan Das never obtained  actual  possession                       over  it  and only symbolical  possession  was                       delivered  to  him in this suit,  It  must  be                       borne  in mind that Bhagwan Das was  owner  to                       only  2/3rd share and 1/3rd belonged  to  Mst.                       Deoki, who was real aunt of Kripa Shanker, and                       unless  Bhagwan Das had got his  share  parti-                       tioned, he could not obtain actual  possession                       over any portion of the house and as such only                       symbolical  possession was delivered  to  him.                       The  question only is whether he  remained  in                       joint possession or not ? It is contended from                       the side of the appellants that he was not  in                       possession  and Kripa Shanker was  in  adverse                       possession  at least from 1945, and that  this                       suit  was  filed in 1959, that is  after  more                       than  12 years when the  defendant  appellants                       had  already perfected their title by  adverse                       possession.  This  symbolical  possession  was                       delivered  on  21st of November,  1946.   This

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                     suit  was filed in 1959 that is more  than  12                       years after and, therefore, there is force  in                       the  contention  that it must be  proved  that                       Bhagwan Das was  in  joint possession.   Bhag-                       wan Das was a co-sharer along with Mst. Deoki.                       Mst.  Deoki’s  share ultimately  came  to  the                       defendant  appellant  in 1957 and as  such  in                       1957 the defendant appellant became  co-sharer                       with  the  plaintiff  respondent. In 1957,  12                       years had not passed and even if it is assumed                       that  Bhagwan Das or the plaintiff  respondent                       was  not in joint possession, their right  had                       not  ceased in 1957.  It was observed  by  the                       Supreme  Court   of  India  in  the   case  P.                       Laxmi Reddy v. L. Laxmi Reddy (in 1957  A.I.R.                       Supreme Court 314), ’the burden of making  out                       ouster is  on  the person claiming to displace                       the  lawful  title Of co-heir by  his  adverse                       possession’."             If the plaintiff’s assertion was that the defendants had         dispossessed  him it did not matter whether  the  defendants         represented a         23         co-sharer or not.  In that event, the plaintiff’s case would         certainly  be  deemed to be one in which  the  assertion  of         dispossession  was there.  In the case before us, it appears         that the rights of Kripa Shanker, on the plaintiff’s  asser-         tion  that he had been a party to the mortgage, had come  to         an end by the sale of his rights in the property and  deliv-         ery of possession to the auction purchaser.  His heirs could         only be in adverse possession and not holding through  Kripa         Shanker  on the plaintiff’s own assertions.  In  fact,  they         have  not claimed to be holding through Kripa  Shanker.   In         any  event,  the allegations in the plaint appear to  us  to         amount to an allegation that, by asserting their own  owner-         ship and inducing the tenants not to pay rents to the plain-         tiff,  the  defendants had dispossessed the  plaintiff.   In         such a case, even if a defendant in actual possession  could         be  deemed to be initially a co-sharer, the plaintiff  would         be  really asserting that the co-sharer had dispossessed  or         ousted  him.   Hence an ouster having been admitted  in  the         plaint, the burden would lie ’upon the plaintiff of  proving         his  Case  that  the ouster had taken  place  within  twelve         years.  On any other view, the distinction between  articles         142 and 144 of the former Limitation Act, which is important         in this case, would vanish.             In  a case between co-sharers, Bindhyachal Chand &  Ors.         v. Ram Gharib Chand & Ors,(1) a "Full Bench of the Allahabad         High Court had examined the difficulties which arise when  a         co-sharer   sues another on the allegation that he had  been         dispossessed.  Sulaiman, C.J.,  pointed out that article 144         was  a residuary article Which applied to suits for  posses-         sion  of immovable property which could not fall  elsewhere.         As regards the distinction between articles 142 and 144,  he         observed (at p. 997):                       "No  doubt  in many cases the  distinction  is                       very  fine,and the line of   demarcation   be-                       tween   dispossession  and adverse  possession                       is  thin.  But, the question in each  case  is                       one of burden of proof, and it is incumbent on                       the  plaintiff, when he admits his  disposses-                       sion,  to  establish  his  possession   within                       twelve years".                       He went on to point out (at p. 998):                       "Ordinarily,  the possession of one  co-owner,

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                     who   is entitled to joint possession  of  the                       whole  property, is refer-able to  his  title,                       and he cannot ask the Court to presumethat his                       possession was illegal or adverse to the other                       co-owner.  It follows that if one co-owner  is                       in   actual possession of the joint  property,                       and the other co-owner is either absent or  is                       not  in  actual possession, the  latter  would                       still  be  in constructive possession  of  his                       property through his co-owner.  There would be                       prima  facie no case, where the possession  of                       one  co-owner was illegal and was  necessarily                       adverse  to that of the other  co-owner.   The                       presumption  would  be that they are  both  in                       joint  possession.  But,  it cannot be  denied                       that one co-owner can dispossess another                       (1)A.I.R.1934 All. 993.                       3--240SCI/77                       24                       co-owner  and can exercise adverse  possession                       over a joint                       property.   If,  therefore, the  plaintiff,  a                       co-owner, admitsthat he has been  dispossessed                       and  that,  at any rate, for  a  short  period                       prior  to the suit, the possession of his  co-                       owner was adverse to him, then he cannot  fall                       back on a mere presumption of joint possession                       in his favour and succeed without showing  any                       other circumstances whatsoever".                       The  following  observations  of  the  learned                       Chief Justice are                       also useful (at p. 998):                             "Personally  speaking,  I do  not  think                       that  the  plaintiff can by cleverly  drafting                       his  plaint  evade the burden of  proof  which                       Art. 142 casts upon one who is suing for  pos                       session on the ground of dispossession.   When                       a  plaintiff  falsely alleges that  he  is  in                       possession  and wants a relief, to  which  the                       owner  in  possession is entitled,  e.g.,  for                       partition, injunction, joint possession, etc.,                       and  it  is found that he was in fact  not  in                       possession but had been dispossessed,  techni-                       cally  speaking, the suit would fail under  s.                       42, Specific Relief Act and would be dismissed                       on the ground that he had omitted to ask for a                       consequential relief and had failed  to  prove                       his  case.   But,  a Court may  allow  him  to                       change  his ground and give him a  decree  for                       possession,  treating  his claim  as  one  for                       recovery of possession on the basis of dispos-                       session, provided he succeeds in showing  that                       his dispossession took                       place within 12 years".                           It  seems  to  us that, in  the  case  now                       before  us, the High Court, on a second appeal                       to  it, also failed to determine  the  crucial                       question  of actual or even constructive  pos-                       session of the plaintiff within twelve  years.                       It said:                             "The argument advanced before me is that                       after  the decree in suit No. 57 of  1945  the                       possession   of  Kripa Shanker became  adverse                       and,  as the suit for partition was not  fried                       with  12 years of the date of the decree,  the

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                     suit was barred by limitation.  A large number                       of  authorities  were cited before me  on  the                       point.   It was urged that if a member  of  an                       undivided  Hindu  family sells  his  undivided                       share  and the alience does not bring  a  suit                       for  partition and possession over  his  share                       within 12 years of the date of the  alienation                       the  possession  of the alienor  and  all  the                       other  coparceners  would be adverse  and  the                       suit  for  partition after the  expiry  of  12                       years from the date of the alienation would be                       barred by time.  Some of the authorities cited                       by  the learned counsel for the appellant,  to                       which I do not consider it necessary to refer,                       would seem to support his contention.  Learned                       counsel for the respondent, however, has cited                       before  me  the latest case   of  the  Supreme                       Court in Manikayala Rao v. Narashnhaswami (AIR                       1966 SC 470)".         The case relied upon by the High Court is distinguishable on         two grounds: firstly, it was not a case where the plaintiff,         on the pleadings in the plaint could be fairly said to  have         admitted dispossession          25         or  ouster  by  setting up that  the  alleged  co-sharer  in         possession  was  denying the rights of the  plaintiff;  and,         secondly,  delivery of symbolical possession there was  said         to  have interrupted adverse possession which could,  there-         fore,  not  be continuously for twelve years.  In  the  case         before  us, even if a symbolic delivery of possession  to  a         co-sharer  could  be said to have  interrupted  any  adverse         possession,  that interruption took place beyond  12  years.         Hence,  it  was the duty of the plaintiff to have  shown  by         cogent  evidence how, by receipt of rent or an admission  by         the  defendants  or  otherwise,  he  or  his  predecessorin-         interest  could  be deemed to be in actual  or  constructive         possession as an owner or as a co-sharer with the defendants         over the house in dispute.             We  may  observe  that the  difficulty in  deciding  the         question whether article 142 or article 144, Limitation  Act         applies  to a case which really depends upon an  interpreta-         tion  of  the  pleadings, was sought to be  removed  in  the         Limitation  Act  of  1963 by a more  clarified  position  in         article  64 and 65 of Limitation Act of 1963.   The  reasons         given for this change were:                         "Article  142  and 144 of the  existing  Act                       have  given rise to a good deal  of  confusion                       with respect to suits for possession by owners                       of property.  Article 64 as proposed  replaces                       Art.  142, but is restricted to suit based  on                       possessory title so-that an owner of  property                       does not lose his right to the property unless                       the defendant in  possession is able to  prove                       adverse possession".         In  other words, in cases governed by the former  Limitation         Act,  at any rate, a plaintiff admitting  dispossession,  in         suits based on title, had to prove that he was in actual  or         constructive  possession  within twelve years.   Hence,  the         change  in law.  We do not, however, propose to  examine  or         lay  down here the exact position under the amended  law  of         limitation under the act of 1963.             The result is that, in the case before us, the plaintiff         had to, prove that he was he actual or constructive  posses-         sion  within twelve years. It would be  enough if he  estab-         lishes   that  he  was in   constructive  possession  within

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       twelve  years by receipt of rent or otherwise. There  is  no         finding  to  that effect given by the High Court or  by  the         Subordinate Court.             We, therefore, allow this  appeal, set aside the   judg-         ments  and orders of the High Court and of the first  appel-         late  Court.  We send the case back to the  first  appellate         Court,  which is the final Court of facts, to determine,  on         the evidence already on record, whether the plaintiff was in         actual or constructive possession within twelve years of the         filing of the suit. If the plaintiff can establish that, the         suit will have to be decreed. Otherwise, the suit must fail.         The costs will abide the results.         S.R.                                     Appeal allowed                                                 and case remanded.         26