HAKIM ALI AND ANR.versusBOARD OF REVENUE U.P. AND ORS.

                      HAKIM ALI AND ANR.
A
                              v.
                 BOARD OF REVENUE U.P. AND ORS.

                             DECEMBER 19, 1990

B             [M.M. PUNCHHI AND S.C. AGRAWAL, JJ.]

          U. P. Zamindari Abolition and Land Reforms Act, 1950-Section
    229-B-Dispute relating to bhumidhari rights-Competency of Borad
    of Revenue to refer dispute to arbitration.

          U. P. Zamindari Abolition and Land Reforms Act. 1950-
c   Sections-293 and 339(c)-Scope and construction of-Difference in
    terminology-Effect of.

          U.P. Land Revenue Act, 1901-Chapter IX-Whether applicable
    to the proceedings under the provisions of the U. P. Zamindari Aboli-
D   tion and Land Reforms Act, 1950-Legislative intention of.

         The father of appellant No. 1 instituted a suit under Section 229-B
    of the U.P. Zamindari Abolition and Land Reforms Act, 1950 against
    respondent No. 2, for a declaration that be was Bbumidbar in respect of
    suit-lands. During the pendency of the suit, the original plaintiff died
E   and the appellants were brought on record as the plaintiffs. The suit
    was dismissed by the S.D.O.

          On appeal, it was decreed by the Additional Commissioner.

          Respondent No. 2 filed a second appeal before the Board of
p   Revenue, and on the joint request of the parties, the dispute was
    referred to arbitration. Respondent No. 5-the arbitrator gave his
    award. Objections were filed by the appellants against the award, and
    one of them was that the reference to arbitration was bad in law
    inasmuch as the Board of Revenue had no jurisdiction .to refer the
    dispute and the award given by the arbitrator was void and without
G   jurisdiction. The objection of the appellants was however rejected.

          The appellants filed a writ petition, challenging the decision of the
    Board of Revenue which was dismissed by the High Court holding that
    in view of Section 203 of the U.P. Land Revenue Act, 1901 the provisions
    of the Arbitration Act were applicable to cases coming up for hearing
H   before the Board of Revenue, and the Board of Revenue had jurisdic-

                                       566
                  HAKIM ALI v. BOARD OF REVENUE                       567

tion to refer a dispute involved in second appeal under the Zamindari
                                                                             A
Abolition Act to arbitration.

      Aggrieved by the decision of the High Court the appellants
appealed to this Court, contending that Section 293 of the Zamindari
Abolition Act expressly limited the applicability of the provisions of
Chapters IX and X of the Land Revenue Act to applications and pro-           B
ceedings made or taken under Chapter X of the Zamindari Abolition
Act; that Section 203 of the Land Revenue Act would be applicable only
to applications and proceedings made or taken under Chapter X
(Sections 241 to 294) of the Zamindari Abolition Act; that the provisions
of Section 203 of the Land Revenue Act would not be applicable to
second appeal arising out of a suit filed under Section 229-B of the
Zamindari Abolition Act which was not a proceeding taken under               c
Chapter X of the Zamindari Abolition Act; and that the difference in
the language used by the legislature in Sections 293, 339, 341 of the
Zamindari Abolition Act indicates limited applicability of the provi-
sions of the Land Revenue Act to proceedings and applications under the
Zamindari Abolition Act.                                                     D

      Dismissing the appeal, this Court,

      HELD: 1. Arbitration is a recognized mode of settlement of dis-
putes. It enables the parties to resolve their. dispute by a tribunal
selected by them. The considerations which justify reference to arbitra-     E
tion of disputes arising iu applications and proceedings under Chapter
X of the Zamindari Abolition Act are equally applicable to applications
and proceedings under other provisions of the Act. [576D-E)

      2. Section 293 cannot be read in isolation. It has to be read along_
with Section 339. In clause (c) of Section 339 it is prescribed that with    p
effect from the date of vesting in respect of any area, the Land Revenue
Act shall, in its application to such area, be deemed to be and Is hereby
amended to the extent mentioned in column 3 of the List II of the
Schedule III of the said Act. [573B-C]

     3. The High Court has rightly taken the view that the Board of          G
Revenue had ample jurisdiction under Section 203 of the Land Revenue
Act to refer to arbitration the djspute involved in the second appeal
pending before it which arose out of a suit under Section 229-B of the
Zamindari Abolition Act. [576F-G]

      4. The distinction based on the difference in terminology used in      H
    568          SUPREME COURT REPORTS                  [1990] Supp. 3 S.C.R.

A Sections 293 and 339(c) of the Zamindarl Abolition Act only indicates
  that section 293 is limited In its scope in applying the provisions of
  Chapters IX and X of the Land Revenue Act to applications and pro-
  ceedings under Chapter X of the Zamindarl Abolition Act; whereas
  section 339(c) is much wider In amplitude in as much as it makes all the
B provisions of the Land Revenue Act applicable to the area to which the
  provisions of the Zamindari Abolition Act are applied. [573G-574B]

          5. The width and amplitude of the provision contaiited In Section
    339(c) of the Zamlndarl Abolition Act cannot be curtailed by reference
    to Sections 293 and 341 of the Act. [5740-E]

C         6. There is nothing In the provisions contained in Chapter IX of
    the Land Revenue Act which may require restricting their application to
    applications and proceedings under Chapter X of the Zamindarl Aboli-
    tion Act. Some of the matters covered by Chapter IX of the Land
    Revenue Act have been dealt with in Chapter XII of the Zamindarl
    Abolition Act but most of the matters referred to In Chapter IX of the
D   Land Revenue Act are not dealt with in the Zamindari Abolition Act. It
    cannot be assumed that while enacting the Zamindari Abolition Act the
    legislature. intended that the procedural provisions contained in Chap-
    ter IX of the Land Revenue Act would be applicable only to applications
    and proceedings under Chapter X of the Zamindari Abolition Act but
E   would not be applicable to applications and proceedings under provi-
    sions other than Chapter X orthe Zamindarl Abolition Act. [575G-576BJ

          7. It could not be the intention of the legislature that in the matter
    of adjudication of applications and proceedings under provisions other
    than Chapter X of the Zamlndarl Abolition Act which would be sub-
F   stantially larger In number than those under Chapter X of the Act, the
    provisions contained in Chapter IX of the Land Revenue Act should not
    be available to the revenue courts. [576C·D]                                 ·

         Sahdeo and another v. Deputy Director of Consolidation,
    Varanasi at Allahabad and Others, [1980] Allahabad Journal 1110,
    overruled.
G
          G.P. Singh on Principles of Statutory Interpretation 4th Edn.,
    P. 51, referred.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1124
H   of 1977.
         HAKIM ALI v. BOARD OF REVENUE !AGRAWAL, J.J               569

     From the Judgment and Order dated 17.11.1976 of the Allaha-
                                                                           A
bad High Court in Writ Petition No. 3985 of 1973.

    Salish Chandra, K.B. Rohtagi and Praveen Jain for the
Appellants.

    J.P. Goyal, K.K. Gupta and C.K. Ratnaparkhi for the                    B
Respondents.

      The Judgment of the Court was delivered by

      S.C- AGRAWAL, J. This appeal by special leave raises the ques-
tion whether it was competent for the Board of Revenue to refer for
arbitration the dispute relating to declaration of Bhumidari rights in     c
agricultural land in a second appeal arising out of a suit instituted
under Section 229-B of the U.P. Zamindari Abolition & Land
Reforms Act, 1950 (hereinafter referred to as 'the Zamindari Aboli-
tion Act').
                                                                           D
       Badlu, father of Hakim Ali (appellant No. 1), instituted a suit
under Section 229-B of the Zamindari Abolition Act against respon-
dent No. 2, Lekhi Ram, wherein he sought a declaration that he is
Bhumidar in respect of certain lands situate within the urban area of
Municipal Board, Baraut. During the pendency of the said suit before
the trial court Badlu died and the appellants were brought on record as    E
the plaintiffs. The said suit was dismissed by the Sub Divisional
Officer, Baghpat. But on appeal it was decreed by the Additional
Commissioner, Meerut. Respondent No. 2 filed a second appeal
before the Board of Revenue. During the·pendency of the said appeal,
on the joint request of the parties, the Board of Revenue referred the
dispute to arbitration and appointed Shri Anup Singh, respondent No.       F
5 as the arbitrator. The arbitrator gave his award against which objec-
tions were filed by the appellants. One of the objections raised by the
appellants was that the reference to arbitration was bad in law
inasmuch as the Board of Revenue had no jurisdiction to refer the
dispute for arbitration and the award given by the arbitrator is void
and without jurisdiction. The Board of Revenue, by order dated             G
March 9_, 1973, rejected the said objection of the aj,lpellants and held
that the dispute had been validly referred to arbitration. The appel-
lants filed a writ petition wherein they challenged the said decision of
the Board of Revenue. The said writ petition was dismissed by the
Allahabad High Court (H.N. Seth, J.) by judgment dated November
17, 1976. The High Court held that the expression "court" in Section       H
    570          SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

A   2(c) of the Arbitration Act, 1940 does not include a Revenue Court.
    But in view of Section.203 of the U.P. Land Revenue Act, 1901
    (hereinafter referred to as 'the Land Revenue Act') the High Court
    held that the provisions of the Arbitration Act are applicable to cases
    coming up for hearing before the Board of Revenue and the Board of
    Revenue had ample jurisdiction to refer a dispute involved in second
B   appeal under the Zamindari Abolition Act to arbitration. Since the
    High Court was of the view that there was no infirmity m the order of
    the Board of Revenue referring the dispute pending before it to arbit-
    ration, it did not consider it necessary to deal with the objection raised
    by respondent No. 2 that since the dispute had been referred to arbit-
    ration by the Bo~rd of Revenue with the consent of the appellants,
    they should not be permitted to invoke the discretionary jurisdiction of
c   the High Court under Article 226 of the Constitution and to challenge
    the jurisdiction of the Board of Revenue to refer the dispute to arbitra-
    tion. Feeling aggrieved by the aforesaid decision of the High Court the
    appellants have filed this appeal.

D        Before we. deal with the submission of Shri Satish Chandra, the
    learned counsel for the appellants, in support of the appeal, we would
    set out the relevant provisions of the Land Revenue Act and the
    Zamindari Abolition Act.

         Section 203 of the Land Revenue Act confers the power to refer
E   disputes to arbitration and it provides as under:

                "203 Power to refer disputes to arbitration.

                The Board, a Commissioner, an Additional Commissioner,
                a Collector, Additional Collector, an Assistant Collector of
F               the first class, a Recor.d Officer or an Assistant Record
                Officer, a Settlement Officer, or an Assistant Settlement
                Officer, may, with the consent of the parties, by order refer
                any dispute before it, or him, to arbitration."

    In Section 204, provision is made with regard to procedure in cases
G   referred to arbitration and it is prescribed that in all cases of reference
    to arbitration under Section 203, the provisions of the Arbitration Act,
    1940 shall apply so far as they are not inconsistent with anything in the
    Land Revenue Act. Section 205 prescribes that any application to set
    aside an award shall be made within ten days after the day appointed
    for hearing the award. Section 206 lays down that if the officer making
H   the reference does not see cause to remit the award or any of the
         HAKIM ALI v. BOARD OF REVENUE [AGRAWAL, J.I                   571

matters referred to arbitration for reconsideration, and if no applica-      A
tion has been made to set aside the award, or if he has refused such
application, he shall decide in accordance with the award, or if the
award has been submitted to him in the form of a special case, accord-
ing to his own opinion in such case. Section 207 bars an appeal or a suit
in a Civil Court against a decision given under Section 206. All these
provisions are contained in Chapter IX of the Land Revenue Act. ·            B

      By Section 293 of the Zamindari Abolition Act the provisions of
Chapter IX and X of the Land Revenue Act have been made applic-
able to applications in proceedings under the Zamindari Abolition
Act. The said provision which is contained in Chapter X of the
Zamindari Abolition Act provides as under:
                                                                             c
            "293 Provisions of Act III of 1901 applied to applications
            and proceedings under this Chapter. The provisions of
            Chapter IX and X of the United Provinces Land Revenue
            Act, 1901, as amended by this Act shall, insofar as they are
            not inconsistent with the provisions of this Act, apply to       D
            applications and proceedings made or taken under this
            Chapter."

      Section 339, which makes provision for repeals, is as follows:

           "339. Repeals.-With effect from the date of vesting in            E
           respect of any area-

           (a) the enactments mentioned in List I of Schedule III
           shall be and are hereby repealed in their application to such
           area;
                                                                             F
           (b) so much of any other enactments as is inconsistent with
           the provisions of Chapter VIII to X of this Act shall be
           deemed and is hereby repealed in its application to such
           area;

           (c) the United Provinces Land Revenue Act, 1901 (U.P. G
           Act III of 1901), shall in its application to such area be
           deemed to be and is hereby amended to the extent
           mentioned in column 3 of the List II of the Schedule
           aforesaid.

     Provided that where under this Act any interpretation has to be . H
    572         SUPREME COURT REPORTS              [ 1990] Supp. 3 S.C.R.

A   made, action taken or thing done in accordance with the provisions of
    the United Provinces Tenancy Act, 1939 (U.P. Act XVII of 1939), the
    same may be made, taken or done as if it has not been repealed by this
    Act."

         Section 341 makes provision for application of certain Acts to the
B   proceedings under the Zamindari Abolition Act, and it reads as under:

               "341. Application of certain Acts to the proceeding of this
               Act.-Unless otherwise expressly provided by or under
               this Act, the provisions of the Indian Court Fees Act, 1870
               (VII of 1870), the Code of Civil Procedure, 1908 (V of
               1908), and the Limitation Act, 1963 (XXXVI of 1963),
c              including Section 5 thereof shall apply to the proceedings
               under this Act."

           Shri Salish Chandra has urged that Section 293 of the Zamindari
    Abolition Act expressly limits the applicability of the provisions of
D   Chapters IX and X of the Land Revenue Act, as amended by the
    Zamindari Abolition Act to applications and proceedings made or
    taken under Chapter X of the Zamindari Abolition Act and that since
    Section 203 of the Land Revenue Act is a provision contained in Chap-
    ter IX of the Land Revenue Act, it is applicable only to applications
    and proceedings made or taken under Chapter X (Sections 241 to 294)
E   of the Zamindari Abolition Act and that said provisions of Section 203
    of the Land Revenue Act would not be applicable to a second appeal
    arising out a suit filed under Section 229-B of the Zamindari Abolition
    Act which was not a proceeding taken under Chapter X of the
    Zamindari Abolition Act. In this context, Shri Satish Chandra has also
    referred to Section 341 of the Zamindari Abolition Act and has
F   pointed out under the said Section cartain enactments namely, the
    Indian Court Fees Act, the Code of Civil Procedure and the Limitation
    Act have been applied to the proceedings under the Zamindari Aboli-
    tion Act, under provisions other than Chapter X of the said Act, but
    t.he provisions of the Land Revenue Act have not been made so applic-
    able. In support of his aforesaid submissions Shri Satish Chandra has
G   also placed reliance on a later decision of the Allahabad High Court
    (B.D. Agarwal, J.) in Sahdeo and Another v. Deputy Director of Con-
    solidation, Varanasi at Allahabad and Others, [1980], Allahabad Law
    Journal 1110.

         It is no doubt true that under Section 293 of the Zamindari
H   Abolition Act, the provisions of Chapters IX and X of the Land
                HAKIM ALI v. BOARD OF REVENUE [AGRAWAL, J.J               573


       Revenue Act have been made applicable only to applications and pro-
       ceedings made or taken under Chapter X of the Zamindari Abolition A
       Act and since Section 203 falls in Chapter IX of the Land Revenue
       Act, it would not be applicable to proceedings made or taken under
       provisions other than those contained in Chapter X of the Zamindari
       Abolition Act. In our view, however, Section 293 cannot be read in
       isolation. It has to be read along with Section 339. In Clause (c) of B
       Section 339 it is prescribed that with effect from the date of vesting in
       respect of any area, the Land Revenue Act shall, in its application to
       such area, be deemed to be and is hereby amended to the extent
       mentioned in column 3 of the List II of the Schedule III of the said
       Act. As a result the provisions of the Land Revenue Act containing
       the amendments as mentioned in column 3 of List II of Schedule III,
       would be applicable to the area to which the Act has been made C
       applicable with effect from the date of vesting. Under column 3 of List
       II of Sechedule III certain modifications and amendments have been
       made in the various provisions cf the Land Revenue Act, but no
       modification has been made in Section 203 of the said Act. This would
       mean that the provisions of the Land Revenue Act, including Section D
       203, are applicable to the area in which the Zamindari Abolition Act
       has been applied with effect from the date of vesting.
              Shri Salish Chandra has, however, pointed out that in Section
       293 the legislature has used the words "apply to applications and pro-
       ceedings made or taken under this Chapter" and similarly in Section
       341 the words "shall apply to the proceedings under this Act" have E
       been used, whereas in Section 339 the words "in its applicatii:ln to such
       area" have been used. The submission of Shri Satish Chandra is that
       this difference in the language used by the legislature in Sections 293,
       339, 341 indicates that in the matter of applicability of the provisions of
       the Land Revenue Act a distinction has to be drawn between applica-
       bility to proceedings and applications under the Zamindari Abolition F
       Act and applicability to a particular area and that by virtue of Section
       339( c) of the Zamindari Abolition Act the provisions of the Land
       Revenue Act cannot be said to have been made applicable to proceed-
       ings under the Zamindari Abolition Act and the provisions of the Land
  -    Reven_11e Act can be said to have been made applicable to the area to
       which the provisions of the Zamindari Abolition Act are applied with G
       effect from date of vesting.
            This distinction based on the difference in terminology used in
       Sections 293 and 339(c) does not, in o.ur view~ advance the case of the
-...   appellants. It only indicates that Section 293 is limited in its scope in
       applying the provisions of Chapters IX and X of the Land Revenue H
    574          SUPREME COURT REPORTS                [1990] Supp. 3 S.C.R.

A   Act to applications and proceedings under Chapter X of the Zamindari
    Abolition Act whereas Section 339{c) is much wider in amplitude in as
    much as it makes all the provisions of the Land Revenue Act applic-
    able to the area to which the provisions of the Zamindari Abolition
    Act are applied. The Land Revenue Act contains provisions relating to
    appointments and jurisdiction of revenue officers, maintenance of
B   maps and records and appointment of Kanungos and Lekhpals for that
    purpose, revision of maps and records, settlement of the revenue, revi-
    sion of assessment, partition and union of Mahals, collection of
    revenue, Procedure of Revenue Courts and Revenue Officers, Appe-
    als Reference and Revision, etc. As a result of the application of the
    provisions of the Land Revenue Act, as amended to the extent
    mentioned in column 3 of List II of the Schedule to the Zamindari
c   Abolition Act, to the area to which the provisions of the Zamindari
    Abolition Act are applied, all the various provisions of the Land
    Revenue Act would be applicable to all the matters dealt with by the
    Zamindari Abolition Act including applications and proceedings
    under the said Act. The width and amplitude of the said provision
D   contained in Section 339( c) of the Zamindari Abolition Act cannot, in
    our opinion, be curtailed by reference to Sections 293 and 341 of the
    said Act.

          It is argued that on this construction Section 293 would be
    rendered otiose and that such an intention cannot be attributed to the
E   legislature. It is no doubt true that as a general rule legislature may be
    presumed not to make a superfluous provision. But this presumption is
    not a strong presumption and it is not uncommon to find the legislature
    inserting superfluous provision under the influence of what may be
    abundant caution. (See: G.P. Singh on Principles of Statutory Inter-
    pretation, 4th Edn., P. 51).
F
          We may, at this stage, briefly refer to the provisions contained in
    Chapter IX of the Land Revenue Act and examine whether the said
    provisions are of such a nature that they can apply only to applications
    and proceedings under Chapter X of the Zamindari Abolition Act and
    not to applications and proceedings under the other provisions of the
G   said Act.

          Chapter IX of the Land Revenue Act which contains Sections 189
    to 209 bears the heading "Procedure of Revenue Courts and Revenue
    Officers". Section 189 prescribes the place where the court can be held
    by the various Revenue Officers. Section 190 empowers the Collector,
H   Settlement Officer, Record Officer and their assistants etc. To enter
          HAKIM ALI v. BOARD OF REVENUE [AGRAWAL, J.]                575

upon and survey land. Section 191 confers power on the Board of             A
Revenue or the Commissioner to transfer any case or proceedings
from a subordinate Revenue Court or Revenue Officer to any other
court or officer competent to deal therewith. Section 192 empowers
the Collector or Assistant Collector incharge of the sub-division of a
district, a Tehsildar, a Record Officer, or a Settlement Officer to
transfer cases from his own file to any of his subordinates competnet       B
to deal with such cases or to withdraw any class of cases from any
Revenue Officer subordinate to him and deal with the same himself.
Section 192-A makes provision for consolidation of cases involving
substantially the same question for determination and based on the
same cause of action pending in one or more court. Section 193
empowers a Revenue Court to summon persons to give evidence and
produce documents. Section 194 prescribes the procedure to be fol-
                                                                            c
lowed in case of non-compliance with summons. Section 195 lays down
that the summons should be in writing and sealed and also provides the
mode of serving summons as well as for service in district other than
that of issue. Section 196 prescribes the mode of serving the notice.
Section 197 provides for mode of issuing proclamations." Section 198        D
provides that a notice and a proclamation shall not be void on account
of any error in the name of any person or any designation of any
person or in the description of any land referred to therein, unless such
error has produced substantial injustice. Section 199 provides for the
procedure for procuring attendance of witnesses. Section 200 provides
for dismissal of a case in default or for hearing and determination of      E
the same ex-parte .. Section 201 bars an appeal from an order passed
under Section 200 but enables re-hearing of the case on proof of good
cause for non-appearance. Section 202 makes provsion for correction
of error and omission. Sections 203 to 207 deal with the arbitration to
which reference has already been made. Section 208 provides for
recovery of fines and costs. Section 209 makes provision for delivery of    F
immovable property.

      All these provisions contained in Chapter IX of the Land
Revenue Act are procedural provisions which are normally applicable
to a court required in to adjudicate disputes brought before it. There is
nothing in these provisions which may require restricting their applica-    G
tion to applications and proceedings under Chapter X of the
Zamindari Abolition Act. Some of the matters covered by Chapter IX
of the Land Revenue Act have been dealt with in Chapter XII of the
Zamindari Abolition Act but most of the matters referred to in Chap-
ter IX of the Land Revenue Act are not dealt with in the Zamindari
Abolition Act. It cannot be assumed that while enacting the Zamindari       H
    576         SUPREME COURT REPORTS              (1990] Supp. 3 S.C.R.

A Abolition Act the legislature intended that the aforesaid procedural
  provisions contained in Chapter IX of the Land Revenue Act would be
  applicable only to applications and proceedings under Chapter X of
  the Zamindari Abolition Act, but would not be applicable to applica-
  tions and proceedings under provisions other than Chapter X of the
  Zamindari Abolition Act. Schedule II to the Zamindari Abolition
B
  Act contains a list of applications and proceedings falling in 43 heads
  which can be initiated under the various provisions of the said Act.
  Only 5 out of these 43 matters (SI. Nos. 39 to 43) relate to applications
  or proceedings under Chapter X and rest of the items mentioned in
  Schedule II relate to applications or proceedings under provisions
  other than Chapter X of the Zamindari Abolition Act. Could it be the
C intention of the legislature that in the matter of adjudication of appli-
  cations and proceedings under provisions other than Chapter X of the
  Zamindari Abolition Act which would be substantially larger in
  number than those under Chapter X of the said Act, the provisions
  contained in Chapter IX of the Land Revenue Act should not be
  available to the revenue courts? Considering this question in the light
D of the provisions with regard to arbitration of disputes contained in
  Sections 203 to 207 of the Land Revenue Act we find it difficult to
  attribute such an intention to the legislature. Arbitration is a recog-
  nized mode of settlement of disputes. It enables the parties to resolve
  their disrute by a tribunal selected by them. The considerations which
  justify reference to arbitration of disputes arising in applications and
E proceedings under Chapter X of the Zamindari Abolition Act are
  equally applicable to applications and proceedings under other provi-
  sions of the said Act.

           For the reasons aforesaid, we are of the view that in the judg-
    ment under appeal, the High Court has rightly taken the view that the
F   Board of Revenue had ample jurisdiction under Section 203 of the
    Land Revenue Act to refer to arbitration the dispute involved in the
    second appeal pending before it which arose out of a suit filed under
    Section 229-B of the Zamindari Abolition Act. We are unable to
    endorse the contrary view taken by another learned Judge of the High
    Court in Sahdeo and Another v. Deputy Direcior of Consolidation
G   Varanasi at Allahabad and Others, (supra). In the result, the appeal
    fails and is hereby dismissed with costs.

    V.P.R.                                               Appeal dismissed.