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Regular Second Appeal No. 21 of 1957, decided on 11^th May 1967.

O. XLI, r. 27‑Produc tion of additional evidence in appellate Court "To enable it to pronounce judgment"‑Court may not say in so many words that admission of document was so necessary‑Such an inference may be drawn by implication‑Matter entirely within discretion of lower appellate Court "For any substantial cause"‑Certified copy of civil judgment sought to be produced in appellate Court having, in Court's opinion, "material bearing on the issue", held, to be such cause‑Power, however, not to be resorted to let a party "patch up weak points" or "fill upomissions"‑4dditional evidence may even be allowed in the High Court‑[Parsotim v. Lal Moher A I R 1931 P C 143 ref.]

Ss. 40 & 43‑Civil and Revenue judgments between ancestors of parties, though not re s judicata in circumstances of case, held, binding between parties.

Art. 144‑Adverse possession of defendants‑Occupation of land, continuous, uninterrupted, supported by Revenue records, without payment of any rent, and within definite knowledge of plaintiffs‑Adverse possession, held, established‑[Muhammad Hayat v. Bati and others P L D 1952 F C 138 and Mst. Bhag Bhari v. Bhagan P L D 1954 Lab. 356 distinguished].

New plea as to acquirement of ownership rights by extinguishment of occupancy tenancy under S. 114, Punjab Tenancy Act (XVI of 1887), not raised at any stage of case‑Not allowed to be raised in second appeal‑Civil Procedure Code (V of 1908), S. 100.

Mian Inayat Ullah for Appellants.

Ch. Zahur Elahi for Respondents.

Dates of hearing : 16th January and 6th March 1967.

This Regular Second Appeal is directed against the judgment and decree of the Senior Civil Judge, Sialkot, with enhanced appellate powers dated the 8th of October 1956, whereby he accepted the defendant‑respondents' appeal and dismissed the plaintiff‑appellants' snit for possession of 36 Kanals 7 Marlas of land detailed in the plaint, which had been decreed in the first instance by the Civil Judge II Class, Pasrur on 21st of October 1955.

2. Brief facts, giving rise to the case are that on 22nd March 1954, the plaintiff‑appellants filed a suit against the defendant‑respondents for possession of 36 Kanals 7 Marlas of land, comprising Khasra Nos. 135, 136, 1138, 1163 and 1174, situate in village Sodhreyke, Tehsil Pasrur of Sialkot District, as per Jamabandi for the year 1919‑50. The plaintiffs claiming to be the owners of the suit land averred that the defendant‑respondents and their ancestors cultivated the land as tenants‑at‑will under the plaintiffs and their ancestors. It was alleged against the defendants that about a year prior to the institution of the suit they with the connivance of the revenue authorities, had illegally got entered mutation No. 868, relating to the transfer of the rights of ownership in their favour in respect of this land and were denying the plaintiffs, proprietary rights over it. The suit was resisted by the defendant respondents who traversed all the averments in the plaint, denying inter alia the plaintiffs' rights of ownership. It was asserted that the mutation in question had been rightly entered and that in view of their long adverse possession and as a result of previous litigation between the parties and the judgments in this regard, their rights bad matured into ownership. On the pleadings of the parties, the learned trial Judge struck the following issues:

(1) Are the plaintiffs owners of the land in dispute and the defendants have been cultivating it as tenants‑at‑will under the plaintiffs and their ancestors

(2) Have the defendants become the full owners of the land in dispute

(3) Is the matter, in issue in this case res judicata on account of the decisions of previous litigation between the parties and as a result of that litigation the defendants have been declared as owners of the land in dispute

(4) Are the defendants entitled to special cost: under section 35‑A of the Civil Procedure Code

(5) Relief.

In support of their case the plaintiffs supplemented their oral evidence by documentary evidence in the form of Jamabandi for the year 1949‑50 (Exh. P. 6) and pedigree tables Exhs. P. 1 to P. 5, starting from the year 1892 up to 1949‑50. The entry in the ownership column of the aforesaid Jamabandi mentions the names of Bahawal son of Mabain, Karamdad, Lal Din and Daulat sons of Jhanda, owners of one‑half in equal shares, residents of Narangwal and Karam Din son of Bhag owner of the remaining one‑half, resident of village Sohal, caste Bajwa. The next column No. 4 pertains to cultivators, bears the names of Ghasita and Shukur, cultivators of 2/3rd in equal shares and Rehmat of 1/3rd as, Ghair Dakhilkar in respect of 1/2 share of Bahawal, etc., and Ghasita and Shukur sons of Mahain cultivators of 1/2 share in equal shares and Ismail and Rehmat sons of Muhammad Din cultivators of 1/2 in equal shares in respect of the remaining 1/2 share of Karam Din as Ghair Dakhilkars, of the same village. These entries considered in the light of the pedigree‑tables mentioned earlier establish that the ancestors of the parties were all Jat Bajwas by caste and residents of Patti Bharna of village Sodhreykey, where the suit land is situated and secondly that the ancestors of the plaintiffs are mentioned as owners of the Grit land in Jamabandi for the year 1949‑50 while the defendants themselves are mentioned as Ghair Dakhilkars; and thirdly, the entry made In the relevant column No. 7 pertaining to Legan or rent shows that the cultivators did not pay any rent on account of old possession deeming themselves to be the owners of the land.

3. On the contrary the defendant‑respondents produced several witnesses to show that the land in question had been continuously in the cultivating possession of the fore‑fathers of the defendants in the first instance and since after that in their own possession. They also produced document Exh. D/1 a copy of Khasra Girdawari from Kharif 1941 to Rabi 1944, from Kharif 1948 to Kharif 1951 and from Rabi 1951 to Rabi 1954. These purport to show that the defendants were cultivating the disputed land without pa3ing any rent to the owners as would be clear from the following entry made in column No. 4 giving the names of cultivators:

Exh. D‑2 is a copy of the judgment of Tahsildar/Collector Grade II, Zafarwal, district Sialkot, dated the 30th of August 1886, purporting to show that Hayat son of Nazir, caste Jat had filed a suit for possession against Mana, Phula and Khudayar sons of Ghasita in respect of 3 acres 1 Kanal 10 Marlas of land under section 9 of the Specific Relief Act alleging that he had been illegally ejected by the defendants who took the position that he had himself surrendered the land and relinquished its possession in. their favour. Having consulted the record and recorded the statements of the Patwari, the learned Assistant Collector decreed the suit in favour of Hayat. From a reference to the pedigree‑tables it appears that Hayat plaintiff being the father of Nawab, Mahtab and Muhammad Din was the grand father of Ghasita, etc. and similarly Mahna son of Ghasita one of the defendants was the grandfather of Karamdad plaintiff and the great grandfather of the other plaintiffs. Exh. D‑4 is an excerpt prepared by the Patwari from Misl‑i‑Haqqiat relating to the settlement record of the years 1865, 1892‑93 and 1913‑14. This also establishes that the forefathers of the plaintiffs were mentioned as owners of the suit land, while those of the defen dants as Ghair Dakhilkars. However, the earliest entry in this regard relating to the year 1865 mentions Hayat son of Nazir as cultivator under Nanak and Mahna, etc. as their collateral and tenants‑at‑will.

4. Having considered the evidence adduced by the parties the learned trial Judge came to the conclusion that the plaintiffs ownership of the suit‑land was established and that the defendants were in its cultivating possession since Kharif 1941 without payment of rent on the basis of their old possession. However, as regards the period prior to Kharif 1941, the learned trial Judge was not satisfied whether the defendants had been paying any rent to them or not, nor was it established to his satisfaction that the cultivators shown as tenants‑at‑will to the settlement excerpt were the ancestors of the defendants. Relying on Muhammad Hayat v. Bad and others (P L D 1952 F C 138) and Mst. Bhag Bhari v. Mst. Bhagan and another (P L D 1954 Lah. 356), the learned trial Judge took the view that the mere assertion of title at the hands of tenant‑at -will on the basis of possession, however, long did not affect the plaintiffs rights of ownership. It appears that the learned trial Judge attached more weight to the entry where by the defendants were described as tenants‑at‑will Ghair Dakhil Karan' under the plaintiffs, and their ancestors and since according to him, there was nothing to indicate that the tenancy‑at‑will had been relinquished at any time, he decided the first two issues in favour of the plaintiffs. While referring to the judgment Exh. D‑2, the learned trial Judge was not satisfied that Hayat plaintiff was the predecessor of the defendants or that it related to the suit‑land,. Alternatively it was held that even if it was assumed to be so, it was merely an order of a revenue Court passed under section 9 of the Specific Relief Act in favour of a tenant, and as such bad no binding effect on the civil Courts. It was also held that the judgment did not operate as res judicata. In consequence, the plaintiffs' suit was decreed with costs.

5. In appeal, however, as stated earlier, the judgment and decree of the trial Judge was reversed by the learned Senior Civil Judge who dismissed the plaintiffs' suit. At the appellate stage the defendants also filed an application under Order XLI, rule 27, C. P. C. for permission to produce Additional evidence in the form of a copy of the judgment (Exh. C‑1) of the revenue, assistant (Collector Grade II), dated the 28th of June (923, an uncertified copy of which though ordered to be placed' on the record was not duly exhibited or considered in evidence. This application was allowed by the learned Senior Civil Judge vide his order dated the 26th of March 1956, at page 39 of the appellate Court's file. A reference to this has also been made in the appellate judgment immediately after the reproduction of the issues in paragraph 4. A perusal of the impugned judgment shores that although there was nothing to indicate on the record that the defendants had asked for an adjournment in order to enable them to produce a certified copy of the above judgment, nevertheless, in view of its importance and direct bearing on the case before him, the learned Senior Civil Judge allowed the application subject to the payment of Rs. 50 as costs for the reason that they had not asked for an opportunity. The plaintiffs were also allowed an opportunity to adduce evidence in rebuttal if they chose to do so, but this opportunity was not availed of. The learned lower appellate Court took the view that the auth orities relied on by the learned trial Judge proceeded on entirely different facts and were not attracted to the instant case, inasmuch as there was not an iota of evidence oral or documentary to show in the instant case that the defendants had either entered the land in dispute as tenants‑at‑will or had paid anything to the landlords by way of rent; which alone would qualify their tenancy as one subject to the will of the landlord. Furthermore, relying on the judgment he allowed to be placed on the record, the learned Senior Civil Judge also held that at least from the year 1923 onwards, when the plaintiffs, suit for ejectment of the defendants' forefathers from the suit land had been dismissed on the ground that the relationship of landlord and tenant bad not been established between the parties and the defendants had never paid anything by way of rent either to the plaintiffs or to their forefathers, the latter‑a' possession had become adverse qua the landlords being definitely to their knowledge. As such the mere entries in the relevant record describing them as tenants‑at‑will would not help the landlords and the declaration of the revenue Court was tantamount to the termination of the tenancy‑at‑will, if any. In the circumstances the failure of the plaintiffs to challenge defendants possession of the suit land within 12 years had allowed the same to mature into ownership. It was in this view of the matter that the appeal was accepted, giving rise to the present Regular Second Appeal.

6. The learned counsel for the appellants who concentrated more on the interim order allowing the defendants‑respondents to place on record copy of the judgment Exh. C/1 raised the following contentions before me:

(1) That the admission of Exh. C/1 was illegal and without jurisdiction;

(2) that assuming the judgment had been rightly admitted, it was not binding on the plaintiff‑appellants inasmuch as it was not a judgment inter‑parties;

(3) That even assuming that the judgment was inter‑parties, the suit was still competent inasmuch as every adverse entry furnished a fresh cause of action ; and

(4) that notwithstanding the payment of the costs of Rs. 50 subject to which the judgment Exh. C/1 was allowed to be admitted as additional evidence the admission could be challenged and the appellants were not estopped from raising this point.

7. I now proceed to take up these points seriatim. Exh. P. C/1 is a certified copy of an order of the Assistant Collector Grade 1, dated the 28‑1‑1862, by which he dismissed the suit of Karam Dad, Lal Din and Adalat sons of Jhanda, Bbawal minor son of Mabin, through his uncle as guardian ad litem Lal Din and Karam Dad on of Bhag, Jats of village Sodhreykey against Mahtab and Muhammad Din sons of Hayat, Jats of the same village for the latter's ejectment from 26 Kanals 7 Marlas of land comprising Khasra Nos. 130, 136, 1163 and 1174 in village Sodhreykey was dismissed. it is the admissibility of this document at the appellate stage which has been challenged. The defendants, i.e., the appellants before the learned Senior Civil Judge had filed before him an application l under Order XLI, rule 27 for the admission of the documents by way of additional evidence which was allowed by a separate order, dated the 26th of March 1956. A careful analysis of this order yields the following inferences:‑--

(i) That during the trial an uncertified copy of this judgment had been produced in Court by the defendants but the same was returned as inadmissible in evidence;

(ii) that the judgment had "a very material bearing on the points at issue between the parties;"

(iii) that the defendants have not asked for any adjourn ment to enable them to produce the certified copy of the judgment;

(iv) that although no efforts had been made by the defendants to seek an adjournment for the production of this document yet in view of its importance and material hearing, it was admitted by way of additional evidence on payment of Rs. 50 as costs; and

(v) that an opportunity was granted to the plaintiffs who were respondents before the lower appellate Court to meet evidence in rebuttal but they did not choose to do so.

The admission of the document and the reasoning given there fore has now to be considered in the light of the legal provision contained in Order XLI, rule 27 which reads thus:

"Order XLI, rule 27.‑Production of additional evidence in Appellate Court.‑(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or docu mentary, in the Appellate Court. But if‑

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reason for its admission."

It is clear from the language of the provision that normally parties to a suit are not entitled to produce additional evidence and it is only by way of an exception that this provision has been made in the interest of justice, to be invoked in certain circum stances. It is in the event of refusal on the part of the trial Judge to admit evidence which ought to have been admitted or the requirement of the Appellate Court to enable it to pronounce a judgment or lastly, for any other "substantial cause" that additional evidence may be allowed by the Appellate Court, which shall of course record its reasons for allowing such admission. In the instant case, it cannot be said that the trial Court before whom an uncertified copy of the judgment Exh. C/1 was produced ought to have admitted the same, inasmuch as It was only a certified copy which could be admitted and not an uncertified copy which as such had been rightly refused to be brought on the record. The next condition, namely, "if the Appel late Court requires the production of the document to enable it to pronounce the judgment" or appears to have been attracted with full force in view of the reasoning given by the Appellate Court for doing so. Although the lower Appellate Court did not say so in so many words that the production of the document was necessary to enable it to pronounce the judgment, yet such an inference could be clearly drawn by implication. The matter lay entirely in the discretion of the lower Appellate Court and it cannot be said with any degree of reasonableness that it exercised its discretion arbitrarily. In the alternative, however, the last condition as contained in the expression "for any sub stantial cause" was fully satisfied inasmuch as it was clearly stated by the learned Senior Civil Judge that the judgment had "material bearing on the issue". This could be reasonably construed as a substantial cause so as to justify the admission of additional evidence. Relying on A I R 1931 P C 143, the learned counsel for the appellants contended that the power under Order XLI, rule 27 was to be used very sparingly and "was not intended to allow a litigant to patch up the weak pints of his case and fill up omissions in the Court of appeal. This proposition can hardly be disputed and as stated earlier the very language of the provision itself inevitably leads to this inference. In the same judgment their Lordships of the Privy Council went on to say that such an additional evidence should have a "direct and important bearing on the main issue in the case" which it certainly had in the case before me. It may also be observed in this context that subject to the aforesaid condi tions admission of additional evidence may even be allowed in the High Court. In short, it cannot be said that the learned Senior Civil Judge having once considered the judgment Exh. C/1 having a direct bearing on the material issue had used the discretion vesting in him to admit the additional evidence in an improper or illegal manner. The contention is accordingly overruled.

8. Coming now to the second contention that assuming the ‑judgment had been rightly admitted, it was not binding on the plaintiff appellants; not being a judgment inter‑parties, the judgment Exh. C/1 itself has to be carefully considered in the light of the predigree‑table Exhs. P. 1 to P. 5. No doubt, there are some discrepancies in the pedigree‑table Exhs. P. 1 and P. 2, but all the pedigree‑tables taken together leave no manner of doubt that except Karam Dad son of Jhanda who was one of the plaintiff's in the earlier case as also in the instant case, other plaintiffs were ancestors of the plaintiffs in this case. Similarly, Mahtab and Muhammad Din sons of Hayat defendants in the previous litigation are the ancestors of the defendants 9n the instant case except Ismail and Rehmat sons of Muhammad Din, a third brother of Nawab and Mahtab sons of Hayat who had not been impleaded as a defendant in that case. The previous suit was one for the ejectment under section 7 of the Tenancy Act and the description of the land comprising Khasra Nos, 130, 136, 138, 1163 and 1174 completely tallies with and answers the description of the suit land in the instant case, except of course, that there is a difference in the area which was mentioned as 26 Kanals 7 Marlas in that case as against 36 Kanals 7 Marlas here. Furthermore, it cannot be reasonably said that the learned Senior Civil Judge had accepted the appeal dismissing the plaintiff‑appellants' suit solely on the basis of the judgment Exh. C/1, dated the 28th of June 1923. It was in fact the combined effect of the two judgments Exhs. C/1 and D/2, and the copies of Khasra Girdawaris Exh. D/1 supported by the oral evidence that formed the basis of the Appellate judgment. Exh. D/2 is a copy of an order of the Assistant Collector Grade II, dated the 30th of August 1866, by which a decree was passed in favour of Hayat son of Nazir, the ancestor of the defendant and against Mahna, Phulla and Khuda Yar sons of Ghasita for the possession of agricultural land. Of these Mahna is the ancestor of the plaintiffs in the instant case. The ancestory of the parties to the instant case can be clearly traced back to the parties in a judgment Exh. D/2 and C/1, through a careful perusal of the pedigree‑tables placed on the record. The latter judgment Exh. C/1 also contains a detailed reference to the previous litigation between the ancestors of the parties including a suit for ejectment filed by Mahna, Phulla and Khuda Yar, of whom as stated earlier, Mahna was the ancestor of the present plaintiffs, against Hayat ancestor of the defendants filed on 19th January 1887, and dismissed on 22nd of July 1887. There is also a reference to the earlier litigation between the parties which was the subject‑matter of judgment Exh. D/2. It is thus clear that the judgment Exh. C/1 though not being the sole document relied upon in the case, constituted a very material piece of evidence which had influenced the mind of the Appellate Court. Having carefully considered these judgments in the light of the pedigree tables and the copies of Khasra Girdawaris, I agree with the learned Senior Civil Judge to the extent that the previous litigation was between the ancestors of the present parties and that it related to the land in question, but it did not operate as res judicata nor was it held so by the Senior Civil Judge.

9. The next alternative assumption on which the contention was raised by the learned counsel was that even if the judgment may be held to be inter‑parties, the suit would still be competent inasmuch as every adverse entry would furnish a fresh cause of action. It is obviously difficult to endorse such an unqualified generalization, but even if this proposition is not disputed it would hardly advance the case of the appellants inasmuch as the plaintiff‑appellants were not non‑suited because of the in compe tency of their present suit, but the suit failed for other reasons. A perusal of the impugned judgment would clearly indicate that it was from 28th June 1923, i. e. the date of the newly‑admitted judgment Exh. C/1 that the adverse possession of the defendants on the suit land whose continuous and uninterrupted occupation of the same, supported by documentary evidence of Khasra 1 Girdawaris for the years 1941 to 1954, and extract of Missal‑i Haqqiat relating to the Settlements of 1865, and 1892 and 1913 Exh. D/4 without payment of anything by way of rent within the definite knowledge of the plaintiffs, stood fully established. It was thus not in view of the incompetence of the suit that the learned Senior Civil Judge had accepted defendants' appeal, but because of the adverse possession of tae defendants over the suit land with effect from 28th June ; 923, the terminus a qua which according to him stood established beyond doubt.

10. In Muhammad Hayat v. Bati and others (PLD 1952 FC 138) of which the facts are somewhat similar to those of the instant case, the proprietors succeeded in obtaining only a symbolic possession of the land in question although the actual possession of the occupants remained undisturbed. However, feeling aggrieved by the revenue Court's decision, the occupants brought a civil suit against the proprietors in the Court of the Senior Subordinate Judge which was dismissed on the 31st of January 1924, and the appeal filed in the High Court was also dismissed as having been withdrawn on 6th of December 1932, after it remained pending for over eight years. Subsequently, the occupants succeeded in obtaining a favour able finding from the revenue Court that their adverse possession had matured into ownership. This time it were the proprietors who went to the Civil Court in the second round of litigation. The trial Court finding in their favour held that the occupants were no more than tenants at‑will, but the High Court agreeing with the revenue Court reversed the judgment and decree on the basis of continuous and uninterrupted adverse possession of the occupants. On appeal being taken to the Supreme Court, their Lordships took the view that the first judgment of the Senior Subordinate Judge declaring the occupants as mere tenants‑at‑will was a definitive finding which remained unchallenged. It was further observer that in between the aforesaid decisions and the commencement of the second round of litigation, there was no indication of any. change in the relative position of the parties qua the suit. land. Incidentally the question was also examiner whether a finding of the revenue Court in favour on the occupants holding that their adverse possession had matured into ownership was res judicata for the purposes of the subsequent suit. Giving a negative finding it was observed by their Lordships as follows:

"On reference to section 77, Punjab Tenancy Act, which exhaustively sets out the matters, within the scope of the Act, in respect of which the jurisdiction of Revenue Courts is exclusive, there is none which can be thought to include, however indirectly, the question of acquisition of title by prescription."

Thus a closer scrutiny of the comparative facts of the two cases would clearly show that in the precedent case there was a direct conflict of views expressed by the Revenue and the Civil Courts in respect of the same matter, one cutting across the other. On the contrary, in the instant case the position is altogether different and the favourable finding obtained by the proprietors in the trial Court was successfully challenged by the occupants in appeal before the appellate Court in the first instance. Another point of distinction between the two cases is that the case before their Lordships related to the undivided Shamilat Deh owned by the village proprietary body which was subsequently partitioned in the year 1938, when the plaintiff was placed in symbolic possession under a warrant of the revenue authority. On the contrary, the dispute in this case does not relate to Shamilat land which at least in certain cases could be easily occupied without attracting much notice or hostility. Keeping in view these basic differences I am firmly of the opinion that the dictum of their Lordships of the Federal Court proceeded on entirely distinguish able facts and would not be attracted to the instant case.

11. Coming now to the other authority, Mst. Bhag Bhari v. Bhagan (P L D 1954 Lah. 356) here too the suit land was also a part of Shamilat Deh in possession of the defendant‑respondents. The ownership of the plaintiff was held to be proved by the record‑of‑rights which finding remained unchallenged. It was only the nature of the defendants possession which was examined in the relevant record. Kaikaus, J. who delivered the judgment in this case took the view that the correct interpretation of the entries made by the Patwari in the rent column could be properly arrived at by a consideration of the other relevant circumstances. It was observed by his Lordship in this regard:

"There is no doubt that generally when a person is in possession on an assertion of hostile title or unlawfully the Patwari will use some such expression as batasawar malkiat khud, Bawajah qabza, etc. but the use of such expression is not necessary and it does sometimes happen that even in the case of a person in adverse possession the Patwari uses only the words which have been used in the present case.".

'The proper approach, therefore, in such cases is to consider the other circumstances of the case in order to determine the interpretation of the entry."

Since, in the case before his Lordship, the village proprietary body had given general permission to the non‑proprietors to cultivate Shamilat on payment of land revenue only, it was difficult to raise the presumption of hostile adverse possession as asserted by the occupants. Thus the two authorities being clearly dis tinguishable are of no avail to the appellants. Accordingly, I find no reason to disagree with the learned Senior Civil Judge and fully endorse the view taken by him.

12. It was contended by the learned counsel for the defendant‑respondent that non‑payment of rent by the defendant or their ancestors for more than thirty years having been fully established, they could be deemed to have acquired occupancy rights within the meanings of section 5 (1) (a) and (2) of the E Punjab Tenancy Act which tenancy was extinguished by section 114 of the Amending Act VII of 1952, and consequently they had become owners of the suit land, also by operation of law. It may be observed in this regard that this was never the case of the defendant‑respondent at any stage of the proceedings and In order to invoke the application of the new section 114 relating to the extinction of the occupancy rights they had in the first instance to establish their status as occupancy tenants. Since, this plea was never taken by them, it would be neither proper nor possible for this Court to go into this question at this late stage without prejudice to the opposite‑party. The contention is accordingly over‑ruled. However, in view of my earlier finding, the appeal fails and is hereby dismissed with costs.

A.H. Appeal dismissed.

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