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Judgment
S.C. Das, J.—This second appeal u/s 100 of the Code of the Civil Procedure, 1908 (for short, CPC) has been filed challenging the judgment and decree dated 15.05.2002 passed by learned Additional District Judge, Dharmanagar, North Tripura in T.A. No. 3 of 2000. The appeal has been admitted for hearing on the following substantial questions of law formulated by this Court on 07.09.2002:-
(I) Whether the suit can be filed against Nagar Panchayat without giving notice u/s 271 of the Tripura Municipal Act, 1994?
(II) Whether the appellants have acquired any right over the suit land by way of prescription?
The facts discerned from the record, in short, is that respondent Nos. 1 and 2 being plaintiffs, instituted Title Suit No. 8 of 1999 in the Court of Civil Judge, Jr. Division, Dharmanagar, North Tripura seeking declaration of right, title and interest in the suit land mentioned in Schedule ''B'' of the plaint which is part and parcel of Schedule ''A-i'' and ''A-ii'' of the plaint and also prayed for perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs in the suit land. The description of the suit land given at the bottom of the plaint reads thus:
LAND SCHEDULE-A (i)
Under Sub-Division-Dharmanagar, Mouja-Dharmanagar Town. Khatian No. 2821, Touji No. 1357, Dag No. Sabek 6361, Hal-7413, Area-0''04 acres, Classification-Path, Owner-Gobinda Narayan Trivedi.
Bounded by-
North - Government Road (P.W.D.) (DMN to Bagbasha Road)
South - Self.
East - Sri Anil Sarma
West - Presently Banka Behari Trivedi by inheritance.
LAND SCHEDULE-A(ii)
Under Sub-Division Dharmanagar, Mouja-Dharmanagar Town, Khatian No. 4031, Dag No. Sabek-6363, 6366/P Hal-7411, area-0''301 acres, classified as Bastu.
Bounded by-
North - Government P.W.D. Road
South - Muruli Dhar Lohar
East - Gobinda Narayan Trivedi
West - Kanulal Dey Sarkar.
LAND SCHEDULE-B (suit land)
Under sub-Division Dharmanagar, Mouja-Dharmanagar Town, Dag No. Sabek 6361, Hal-7413 and Sabek-6363, 6366/P. Hal-7411, taking land 1 and � (one and half) feet from each Dag between the boundary line of Land schedule A(i)(ii) above.
Bounded by -
North - Govt. P.W.D. Road
South - Self and Muruli Dhar Lohar
East - Gobinda Narayan Trivedi
West - Banka Behari Trivedi & others.
Respondent Nos. 1 and 2 contended that their respective father purchased Schedule ''A-i'' and ''A-ii'' land and they inherited the property after the death of their respective father. ''B'' Schedule land is apart and parcel of the Schedule ''A-i'' and ''A-ii'' land which has been in possession of them all along and the defendants had no right, title and interest in the ''B'' Schedule land. Khatians were prepared in the name of the plaintiffs in respect of the land described in the Schedule and the defendants in collusion made an attempt to construct a drain occupying the ''B'' Schedule land. On 27.03.1999 at about 9-00 a.m. the defendants desperately made an attempt to enter into the suit land and tried to construct a drain but because of the resistance made by the plaintiffs, the defendants failed in their attempt. On that day itself the brother of plaintiff No. 2 namely Atul Trivedi submitted a representation to defendant No. 3, the Chairperson of Dharmanagar Nagar Panchayat raising protest but ignoring the representation, the defendants again made an attempt to enter into the suit land on 23.04.1999 and therefore, the plaintiffs filed the suit on 26.04.1999 seeking relief as aforesaid along with application for interim order.
The plaintiffs arrayed 4(four) respondents including the present appellant Originally, Sub Divisional Officer, Dharmanagar was arrayed as respondent No. 2 as Member Secretary of Dharmanagar Nagar Panchayat but subsequently, after respondent Nos. 1 and 2 submitted a joint written statement, the plaintiffs by way of amendment deleted the name of Sub Divisional Officer and included the Executive Officer of Nagar Panchayat as defendant No. 2.
Defendant No. 1 and defendant No. 2 (Sub Divisional Officer) submitted a joint written statement inter alia stating that no notice was served u/s 80 of CPC and that from January, 96 Dharmanagar Town became a Nagar Panchayat as per the provision of Tripura Municipal Act, 1994 and after constitution of the Nagar Panchayat, S.D.O. ceased to be the Member Secretary of Nagar Panchayat and as per provision of Tripura Municipal Act, 1994 an Executive Officer is functioning as the Executive head of the Nagar Panchayat. After that written statement was filed by the defendant No. 1 and the defendant No. 2(Sub Divisional Officer) the plaintiffs amended the suit and included Executive Officer of the Nagar Panchayat as defendant No. 2.
The Executive Officer being defendant No. 2 submitted a written statement denying all the averments made in the plaint and further stated that the suit land was a drain for passage of water of a part of the locality of Dharmanagar Town and the drain was in existence for about 100 years. In the event of closure of portion of the drain by the plaintiffs, a proceeding u/s 133 Cr.P.C. was initiated which was numbered as Misc. Case No. 48 of 1997 and that Misc. Case was pending for decision and therefore, the title suit was not maintainable. It was also contended by the defendant No. 2 that a proposal had been initiated by the defendant to the Government for acquisition of the suit land for the purpose of development of drain cum road/path way and letter No. F. 29(5)/NAA/DMN/90-54/56 had been written to Sub Divisional Officer, Dharmanagar with copy to others for the purpose of acquisition.
Defendant No. 3, the Chairperson of Nagar Panchayat also filed a written statement denying the averments made in the plaint and further stated that the suit land was a drain in existence for about 100 years and because of the closure of a portion of the drain by the plaintiffs, a proceeding u/s 133 of Cr.P.C. was initiated before the SDO, Dharmanagar which was pending and therefore, the suit was not maintainable. The defendant further stated that the interest of public in general of Dharmanagar Town were involved in the matter and so in absence of public in general, the suit was not maintainable and the suit had been filed without complying the provision of Order I Rule 8 CPC, The plaintiffs were not entitled to get any permanent injunction since it will affect the easementary right of the public in general.
Defendant No. 4, i.e. the present appellant also filed written statement denying the averments made in the plaint and further stated in the same tune as that of the defendant Nos. 2 and 3 that the suit land was a drain existing for about 100 years. The plaintiffs closed a portion of the drain and therefore, the defendants initiated a proceeding u/s 133 of Cr.P.C. and since that proceeding was pending, the suit was not maintainable. He has also stated that public in general were necessary parties and the suit was barred under Order I, Rule 8 of CPC. It was also stated that the defendant and other people of the locality suffering a lot due to illegal obstruction created by the plaintiffs closing the drain and the plaintiffs were not entitled to get a decree of permanent injunction.
Considering the pleadings of the parties, learned Civil Judge, Jr. Division framed the following issues:-
(I) Whether the suit is maintainable in its present form.
(II) Whether there is any cause of action for filing of the suit.
(III) Whether the plaintiffs have right, title, interest and possession over the suit land.
(IV) Whether the suit is bad for non-joinder of parties.
(V) Whether the suit is barred by the principles of res-judicata.
(VI) Whether there is any path and drain for outlet of water of old motor stand area existing on the suit land beyond the period of prescription.
(VII) Whether the plaintiffs are entitled to the decree as prayed for.
(VIII) To what relief/reliefs are the parties entitled.
In course of trial, plaintiff No. 1 examined himself as P.W. 1 and also examined another witness namely P.W. 2 Khagendra Dutta. In support of his case, plaintiff also proved the following documents.
The defendant Nos. 1, 2 and 3 adduced no evidence.
Defendant No. 4 i.e. the present appellant examined himself as DW 1 and also examined 4(four) more witnesses namely D.W. 2 Smt. Maya Ghosh, D.W. 3 Rabilal Dutta, DW 4 Atal Das and D.W. 5 Subir Kr. Das.
In support of his contention, the defendant proved the following documents:-
Learned Civil Judge, Jr. Division considering the pleadings and the evidence on record decided all the issues in favour of the plaintiffs and decreed the suit as prayed by the plaintiffs.
Defendant Nos. 1, 2 and 3 did not prefer any appeal against the judgment and decree passed by the learned Civil Judge, Jr. Division.
Defendant No. 4 i.e. the present appellant filed Title Appeal No. 3 of 2000 challenging the judgment and decree in the Court of Addl. District Judge, Dharmanagar and the learned Addl. District Judge by judgment dated 15.05.2002 dismissed the appeal and upheld the judgment and decree passed by the trial Court.
Being unsuccessful in the trial Court as well as in the First Appellate Court, the defendant No. 4 filed the present appeal which has been admitted for hearing on the two substantial questions of law mentioned hereinbefore.
Heard learned counsel, Mr. D.K. Biswas for the appellant (Defendant No. 4) and learned counsel, Mr. A. Bhowmik for respondent Nos. 1 and 2 (plaintiffs).
None appeared for the rest of the respondents.
In course of argument, Mr. Biswas, learned counsel, submitted that the plaintiffs instituted that suit for declaration of right, title and interest in the suit land but no title deed produced to prove the contention of the plaintiffs though in their pleadings they sated that the suit land were purchased by their respective father and they inherited the property. Since the document of title was not produced, the plaintiffs were not entitled to a decree as prayed for and the Courts below failed to appreciate it. He has also contended that the khatians prepared in the name of the plaintiffs shows that in respect of the suit land there were entries in Column 24 of the khatian that it was a path way for the use of the people in the locality and so, the plaintiffs were not entitled to get a decree of permanent injunction. It was the next argument advanced by Mr. Biswas, learned counsel, that no notice, as required u/s 271 of the Tripura Municipal Act, 1994 was served on the respondent Nos. 2 and 3 and therefore, the suit was legally barred. The trial Court and the First Appellate Court failed to consider the fact that the suit land is a path way and drain under use of the people at large of the locality and under such circumstances, where the plaintiffs could not prove their title, the judgment and decree passed by the Courts below was illegal and hence, liable to be interfered in the second appeal.
Countering the submission of learned counsel, Mr. Biswas, learned counsel, Mr. Bhowmik appearing for the respondent Nos. 1 and 2 has submitted that the defendants by filing their written statement admitted the title of the plaintiffs in the suit land. The defendant No. 4, i.e. the present appellant exhibited the khatians in the name of the plaintiffs which has been marked as Exbt. ''A'' & ''B'' and those khatians proves the title of the plaintiffs in the suit land. Since the defendant No. 2, the Executive Officer of Nagar Panchayat by filing written statement contended that the Nagar Panchayat already initiated a proposal by writing letter to the State Government for acquisition of the suit land and so, the concurrent finding of fact of the trial Court as well as the First Appellate Court in respect of title of the plaintiffs in the suit land cannot be challenged in the Second appeal and there is no substantial question of law formulated on the point argued by learned counsel, Mr. Biswas. Further contended by learned counsel, Mr. Bhowmik that there was no pleading by the parties in respect of a notice u/s 271 of the Municipal Act, 1994 and consequently no issue was also framed on that point. Further Exbt. 5 is a letter written by the brother of plaintiff No. 2 to the Chairman of Nagar Panchayat ventilating their grievances when the defendants made an attempt of percolating into the suit land and that amounts to a notice to the Nagar Panchayat. The substantial question of law was wrongly formulated on the issue and this Court may not consider the same in the absence of any pleadings by the defendants to that effect. It is also contended by learned counsel, Mr. Bhowmik that the Courts below clearly arrived at a finding that the suit land belonged to the plaintiffs having their jote right and that there was no existence of any public path or drain and so there was no question of any easementary right of the defendants including defendant No. 4. The defendant No. 4 i.e. the present appellant with a view to cause hindrance in the peaceful use of the suit land by the plaintiffs initiated a proceeding u/s 133 of Cr.P.C. and also tried to invade upon the land of the plaintiffs through Nagar Panchayat. The trial Court and the First Appellate Court rightly arrived at a conclusion in favour of the plaintiffs and such concurrent finding does not deserve interference in the second appeal.
The present second appeal has been filed challenging the concurrent finding of the trial Court and the First Appellate Court and the appeal has been admitted for hearing on two substantial questions of law reproduced hereinbefore and the appeal is to be heard only on those two substantial questions of law. The scope of exercise of the jurisdiction by the High Court in the second appeal is limited to the substantial question of law. To be a substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court.
The substantial question of law in a given case, must have a foundation in the pleadings of the suit. There cannot be a substantial question of law beyond the pleadings of the parties to the suit. In the present case none of the defendants in their pleadings raised the point of notice u/s 271 of Municipal Act. The defendant Nos. 2 and 3 who were representing the Nagar Panchayat, raised no such issue that the notice as required u/s 271 of the Municipal Act were not served and for such non service of the notice, the suit was not maintainable. The defendant No. 4 i.e. the present appellant on his private capacity also did not raise any such issue in the pleadings. Therefore, as I find, the substantial question of law No. 1 formulated by this Court, is beyond the pleadings of the parties and therefore, the issue was wrongly formulated without having any foundation or basis and does not deserve any consideration.
Further, as I find there was no issue framed at the time of trial of the suit and no evidence also adduced by the defendants raising the issue. In the First Appeal also neither in the memorandum of appeal nor at the time of argument, any such issue was raised. In the memorandum of second appeal also, the appellant raised no such question regarding the compliance or non compliance of Section 271 of the Municipal Act.
Sub sections 3, 4 and 5 of Section 100 of CPC reads thus:-
..........
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question;
Order XLII, Rule 1 prescribes that the rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees. Order XLI, Rule 1 sub rule(2) prescribes thus:-
(2) Contents of memorandum.- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively.
Interestingly, in the memorandum of appeal presented by the appellant, the grounds of objection to the decree as well as the substantial question of law suggested therein does not contain any such ground or question raising the issue of non service of notice u/s 271 of the Municipal Act. The appellant, therefore, raised an issue at the time of admission of the second appeal based on no material having no foundation at all and therefore, the substantial question of law No. (i) does not deserve consideration.
The Supreme Court in the case of
Hero Vinoth (minor) Vs. Seshammal reported in (2006) 5 SCC 545 in paras 20 and 23
has observed that-
The question of law raised will not be considered as a substantial question of law, if it stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of facts, the documentary evidence or the meaning of entries and the contents of the documents cannot be held to be raising a substantial question of law. But where it is found that the first appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India Vs. Ramkrishna Govind Morey held that whether the trial Court should not have exercised its jurisdiction differently is not a question of law justifying interference.
To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.
Further, as I find the plaintiffs brought on record Exbt. 5, a letter written by the younger brother of the plaintiff No. 2(respondent No. 2) to the Chairman of Nagar Panchayat on 27.03.99 ventilating then-grievance and that letter has not been challenged by the defendants which amounts to giving of notice to the respondents as required u/s 271 of the Municipal Act so far contended by learned counsel, Mr. Bhowmik for the respondents.
The Statutory notice is aimed to alert the State authority to initiate a just settlement or at least to take some step towards resolving the grievances of the notice giver. While the grievance of the parties was taken to the notice of the public authority in writing directly or otherwise, it amounts to giving notice of the fact as required by law.
Further, regarding notice u/s 80 of CPC, the trial Court in Para 13 of the judgment clearly mentioned that leave to proceed with the suit was granted by the Court in favour of the plaintiffs u/s 80(2) CPC and there was nothing on record to show that the defendants were prejudiced for non compliance of Section 80 CPC.
The Supreme Court in the case of
Bishandayal & Sons Vs. State of Orissa & Ors., reported in (2001) 1 SCC 555
has observed that if the Court is satisfied that the requirement of notice have been waived by the defendants, suit cannot be dismissed for want of notice.
The issue since raised as a matter of surprise in the second appeal, having no pleadings on record and having no such ground taken in the memorandum of appeal either in the First Appellate Court or in the memorandum of appeal before this Court, an entirely new point cannot be considered as a substantial question of law for consideration.
In the case of Hero Vinoth (supra), the Supreme Court in Para 24 of the judgment has observed thus:-
The principles relating to Section 100 CPC, relevant for this case, may be summarized thus:-
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
In view of the foregoing discussions, the substantial question No. (I) formulated in this appeal has no merit and legally it cannot be considered as a substantial question of law and hence deserves no consideration.
The second substantial question of law formulated by this Court at the time of admission of appeal, in my considered opinion, cannot be regarded at all as a substantial question of law in the facts and circumstances of the suit. It may be purely a substantial question of fact which has already been decided by the trial Court and the First Appellate Court and the High Court is not required to interfere in such concurrent finding of fact. It is the settled law that in a second appeal, the Court will not disturb the concurrent finding of facts as a general principle of law. A concurrent finding of fact may be interfered only in the event it is found that the trial Court and/or the First Appellate Court misdirected themselves in appreciating the question of law and placed the onus on the wrong party certainly there is a scope for inference u/s 100 after formulating a substantial question of law. In the absence of any such facts and circumstances, the High Court while exercising power u/s 100 is not required to undertake the task of re-appreciation of evidence and record findings different than those recorded by the trial Court and the First Appellate Court merely because another view is a possible view. The High Court should not interfere with the concurrent finding of fact in a casual manner by substituting its subjective satisfaction in the place of lower Courts.
The contention of learned counsel, Mr. Biswas that the suit land which was recorded as a path way in the khatian of the plaintiffs does not confer any absolute right of the defendants unless the defendants able to prove that they are entitled to use the suit land by necessity or prescription. Contrary to what has been argued on behalf of the appellant, I find in the impugned judgment passed by learned Addl. District Judge, there is a clear finding of the First Appellate Court that the entries in the khatian of the plaintiffs, in Column No. 24, recording the suit land as path way used by the peoples of the locality, has been deleted by an order of the Collector, dated 10.12.2001, and that order has also been placed on record before the 1st Appellate Court.
The plaintiffs claimed their right, title and interest in the suit land and that has not been disputed by the defendants. The defendant No. 2 proposed for acquisition of the suit land, definitely having satisfied that the suit land belonged to the plaintiffs. The present appellant i.e. the defendant No. 4 also relied on Exbt. A and B i.e. khatians in the name of the plaintiffs. A khatian is a record of right prepared in the course of creating revenue records and such entries in the revenue record cannot be treated as a document of title in ordinary course but it certainly reflects as to who was in possession of the land in dispute on the date the name of that person had been entered in the revenue records (
Narasamma & Ors. Vs. State of Karnataka & Ors. reported in : 2009 AIR SCW 2653
). Since the title of the plaintiffs in the suit land is not in dispute, and since no such issue was framed that the defendants acquired any right to use the suit land by necessity and prescription, the trial Court and the First Appellate Court rightly arrived at a conclusion that the plaintiffs are entitled to get the declaration and permanent injunction as prayed for.
This is a second appeal challenging concurrent finding of two Courts below of competent jurisdiction. The judgments passed by Courts below is found to have based on evidence and materials on record, having proper appreciation according to law. The litigation, therefore, must have an end. It is gainful to refer here the observation of the Supreme Court in the case of
Gurdev Kaur & Ors. Vs. Kaki & Ors. reported in : 2006 AIR SCW 2404 :(2007) 1 SCC 546 in paras 60, 67, 68 and 69
of the judgment which reads thus:-
In the 54th Report of the Law Commission of India, it is incorporated that it may be permissible to point out that a search for absolute truth in the administration of justice, however, laudable, must in the very nature of things be put under some reasonable restraint. In other words, a search for truth has to be reconciled with the doctrine of finality. In judicial hierarchy finality is absolutely important because that gives certainty to the law. Even in the interest of litigants themselves it may not be unreasonable to draw a line in respect of the two different categories of litigation where procedure will say at a certain stage that questions of fact have been decided by the lower Courts and the matter should be allowed to rest where it lies without any further appeal. This may be somewhat harsh to an individual litigant; but, in the larger interest of the administration of justice, this view seems to us to be juristically sound and pragmatically wise. It is the light of the basic approach that we will now proceed to consider some of the cases which were decided more than a century ago.
The rationale behind allowing a second appeal on a question of law is, that there ought to be some tribunal having a jurisdiction that will enable it to maintain, and, where necessary, re-establish, uniformity throughout the State on important legal issues, so that within the area of the State, the law, in so far as it is not enacted law, should be laid down, or capable of being laid down, by one Court whose rulings will be binding on all Courts, tribunals and authorities within the area over which it has jurisdiction. This is implicit in any legal system where the higher Courts have authority to make binding decisions on question of law.
The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference u/s 100 , CPC by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts.
Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering u/s 100 , CPC only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved.
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question.
In view of the discussions made above, I find no reason at all to disturb the judgment and decree passed by the Courts below on the second substantial questions of law formulated in this appeal and, therefore, the appeal is found to be devoid of merit and dismissed with cost. Prepare appellate decree and send back the L.C. records along with a copy of this judgment and decree.