Topic: Sardaran And Ors. vs Sunderlal Baldeo Prasad And Ors - Secondary evidence
Sardaran And Ors. vs Sunderlal Baldeo Prasad And Ors
Equivalent citations: AIR 1968 All 363 - Bench: L Prasad, G Lal
1. This is a plaintiffs appeal arising out of a suit for possession and a sum of Rs. 200 claimed as damages.
2. Initially the suit was filed on 30th September, 1954 in the Court of Munsil On the plea taken in defence that the suit was under-valued and on proper valuation it would be beyond the pecuniary jurisdiction of the Munsif, the plaint was returned for presentation to the proper Court and that order was upheld in appeal. Thereafter the plaint was presented in the Court of Civil Judge, Hardoi in the year 1956 where it came to be registered as suit No. 19 of 1956.
3. The pedigree no more in dispute and material for purposes of appeal may oe given as below:--
Sultan Khan=First Wife
Mahid Ali=Batulan Muntai Asir an Imtiazan=Abdullah
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| Rafiq Aziz |
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Alijan Mamula Nabi Jan Munni Amba |
Defendant 5 Defendant 4
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Bismillah Sariaran Habibullah
Plaintiff 2 Plaintiff 1 Defendant 6
Sultan Khan had a second wite, Imtiazan who had no issue. She survived Sultan Khan. The suit was filed by Bismallah and Sardaran im-pleading their brother Habibullah as defendant No. 6 He was, however, subsequently by an order dated 31st October. 1957 transposed as plaintiff No. 3
4. Defendant No. 2 died during the pendency of this appeal and camp to be substituted by his widow and issues, namely, defendants Nos. 2/1 to 2/8. On the refusal of their, mother, grand-lather and uncle being their guardian-ad-litem. Sri S. B. Mathur an Advocate of this Court, came to be appointed as the guardian-ad-litem of the minor issues of defendant No. 2. Subsequently defendant No. 1 father of defendants 2 and 3, also died during the pendency of this appeal and is now represented by his son and grandchildren.
5. Briefly stated the case of the plaintiff is that the disputed house to which three shops are attached belonged to Sultan Khan who on 24th March, 1896 sold the same to his daughter Imtiazan under a registered sale deed Ext. 3 (page 114 of the paper book). Subsequently on 21st July, 1896 Sultan Khan took that entire property on rent for a period of three years under a registered deed of that date, Ext. 4 (page 117 of the paper book) and he continued to occupy the same till his death which took place some time in the year 1919 or 1920. Then it is asserted that subsequent to his death his son, grandsons and second wife Imtiazan remained in occupation of the same. Their gravamen is that on coming to know that defendants 1 to 3 were in unlawful possession of the property in collusion with defendants 4 and 5 they wanted defendants 1 to 3 not to make any constructions by demolishing the old constructions but they refused to pay any heed. Accordingly, the prayer in the plaint is that a decree for possession over the disputed house and shops be passed in favour of the plaintiffs by demolition of the unlawful constructions raised by defendants 1 to 3 and further a sum of Rs. 200 be allowed to the plaintiffs as damages.
6. The claim was contested by defendant No. 1 alone. He raised a number of pleas giving rise to a number of issues framed by the trial Court which shall be noted presently. The material allegations made in defence may briefly be stated. Defendant No. 1 denied that Sultan Khan never sold the disputed house to his daughter, Imtiazan and maintained that even if any sale deed or a deed of lease was executed by Sultan Khan, it was collusive and ineffective, having been executed to defraud his creditors. Defendant No. 1 maintained that Sultan Khan dealt with the disputed property as full owner till 2nd September, 1904 when he gifted half of the house and the two shops to his second wife Imtiazan by a registered deed and delivered possession. According to him. Sultan Khan died on 18th October, 1927 and was succeeded by his son Wahid Ali and widow Imtiazan whereas his daughter Imtiazan, who is the, mother of the plaintiffs, died in the lifetime of Sultan Khan. On 11th December, 1928 Wahid Ali son of Sultan Khan mortgaged one of the shops with possession to one Mewa Ram under a registered mortgage deed Ext. A-44 (page 127 of the paper book). On 7th July, 1931 Wahid Ali mortgaged the house to defendant No. 1 under a simple registered mortgage deed Ext. A-28 (page 130 of the paper book). On 14th August, 1931 Imtiazan widow of Sultan Khan executed a simple mortgage in favour of defendant No. 1 in respect of her 9/16th share ia the house and shops, vide registered deed Ext. A-40 (page 132 of the paper book). Some debt was due to the Co-operative Bank from Wahid Ali.
Under the provisions of the Co-operative Societies Act the liability of Wahid Ali was ascertained by means of an award and for the realisation of the amount thus ascertained as arrears of revenue the house and one shop were auctioned on 19th June, 1933 and defendant No. 1 purchased it at that auction. The receipt granted to defendant No. 1 in token of that purchase is Ext. A-45 (page 136 of the paper book). As appears from Exts. A-11 and A-12 dated 12th September, 1933 and 11th November, 1933 (pages 137 and 142 of the paper book) certain objections to that sale were taken by Habibullah plaintiff No. 3 but the same were ultimately rejected on the ground that his remedy, if any, was by way of a regular suit. On 18th August, 1944 Batulan, widow of Wahid Ali, and two sons of Wahid Ali, i. e., Ali Jan and Nabi Jan sold the shop already held by Mewa Ram under a possessory mortgage to defendant No.
1. The sale deed is Ext. A-37 (page 163 of the paper book). Subsequent to his purchase defendant No. 1 obtained a decree for redemption against Mewa Ram and in execution of that decree he obtained possession through Court on 20th December, 1947. The decree is Ext. A-23 (page 171 of the paper book). The warrant of Dakhaldehani is Ext. A-24 (page 173 of the paper book). The report of the process-server effecting delivery of possession is Ext. A-25 (page 174 of the paper book). It is dated 20th December, 1947. Defendant No. 1 asserted that after getting possession as aforesaid he built a pucca house and shops after demolishing the old ones in 1948. On 13th December, 1948 Imtiazan, widow of Sultan Khan, sold her interest in the house and shops to defendant Nos. 2 and 3 vide sale deed Ext. A-38 (page 179 of the paper book). On the basis of the aforesaid transfers defendant No. 1, plead ed that he along with his sons defendants 2 and 3 was the owner of the disputed property and the plaintiffs had nothing to do with the same.
7. The Court below framed the following issues arising out of various pleas raised in defence:
1 Is the court-fees paid by the plaintiffs insufficient?
2. Have the plaintiffs undervalued the suit? If so, its effect?
3. Whether the pedigree set up by the plaintiffs is correct?
4. Whether the plaintiffs are owners of the land in suit and were owners of the house as well as the shops that stood on it as alleged in the plaint?
5. Whether Sultan Khan gifted on 2-9-1904 half the house and half the shops that stood on the land in suit to his second wife Smt. Imtiazan as alleged in Para 19 of the written-statement and was he competent to do so?
6. Whether the house and shops that stood on the land in suit were purchased by defendant No. 1 in auction as alleged?
7. Whether the transactions and sales mentioned in Paras 21 to 26 of the written-statement are valid and genuine and are the plaintiffs bound by them?
8. Whether Srimati Batulan, Ali Jan Khan and Nabi Jan Khan sold shop No. 120 that stood on the land in suit to the defendant No. 1 subject to the mortgage of Mewa Ram as alleged in Para 29 of the written-statement? If so are the said transactions genuine, valid and binding on the plaintiffs?
9. Whether Smt. Imtiazan wife of Sultan Khan sold the property in suit to the defendants 2 and 3 in 1948? If so, is the said sale deed genuine, valid and binding on the plaintiffs?
10. Was the sale deed dated 24-3-1896 relied upon by the plaintiff executed by Sultan Khan fraudulently and fictitiously as alleged in Para 37 of the written-statement?
11. Is the suit barred by estoppel and ac-quiescence?
12. Are the plaintiffs entitled to claim any damages? If so, to what amount?
13. Whether the daughters and their sons are excluded from inheritance as alleged in Para 43 of the written-statement?
14. Is the suit within time?
15. To what relief, if any are the plain-tiffs entitled?
Issues Nos. 1 and 2 were disposed of as preliminary issues in the case and they are no more to dispute. Under issue No. 3 the trial Court found that the pedigree set up by the plaintiffs was correct. On issues Nos. 4 and 10 which the trial Court disposed of together it concluded that by virtue of the sale deed of 1896 Imtiazan daughter of Sultan Khan became the owner of the disputed property and on her death the plaintiffs became the owners thereof and there was no evidence to show that the sale deed of 1896 executed by Sultan Khan was fraudulent or fictitious On issue No. 5 the trial Court held that Sultan Khan did gift hall the house and half the shops in favour of his wife Imtiazan in 1904 but he was not competent to do so having sold the same in 1896 to his daughter Imtiazan. It held issue No. 6 in the affirmative. Under issue No. 7 it held that the various transactions referred to in paragraphs 21 to 26 of the written-statement are genuine but the plaintiffs are not bound by them. Likewise it held under issues 8 and 9 that the various transactions referred to in those issues were made but the same were aot binding on the plaintiffs. Under issue No. 11 the trial Court held that the suit was barred by estoppel and acquiescence. In view of the finding on issue No. 11 the trial Court under Issue No. 12 held that the plaintiffs were not entitled to any damages The trial Court answered issue No. 13 in the negative Under issue No. 14 it held that the suit was barred by limitation. In view of the findings on issues Nos. 11 and 14 it held under issue No. 15 that the plaintiffs were not entitled to any relief and accordingly dismissed the suit. It is in these circumstances that the plaintiffs have come up in appeal.
8. We have heard the learned counsel for the parties at some length. As already mentioned, only findings on issues Nos. 11 and 14 are against the plaintiffs. Thus the learned counsel appearing for the plaintiffs had not to challenge the findings recorded by the trial Court on any other issues The learned counsel for the respondents, however, challenged the correctness of the findings recorded by the trial Court on issues Nos. 4 and 10. The findings on no other issues were challenged before us. We have thus to confine ourselves to issues 4, 10, 11 and 14.
9. Issues 4 and 10 can conveniently be taken together. In this case neither the original sale deed dated 24th March, 1896 nor the original lease-deed dated 21st July, 1896 has been produced. Only certified copies of the said documents obtained from the registration office have been filed. We have only the statement of Habibullah plaintiff No. 3 to the effect that the originals have been lost. He states that he made a police report on 21st August, 1931 about the loss of the original sale deed and Ext 2 is a copy ol that report. He claims to have seen the original sale deed and the original deed of lease. He further asserts that he read them Then he says "the original sale deed has been lost. Thereafter the Kirayanama was also lost". His version is that the Head Moharrir gave him the report when he lodged the one about the loss of the sale deed and paper 196 ga is the same report. A mere glance at paper 196 ga, i.e., Ext. 2, would show that this can never be a copy of the report issued to the informant by the police official at the time a report is made We have thus no hesitation in coming to the conclusion that this entire version regarding the loss of the original sale deed and the report having been made by Habibullah in 1931 is entirely unworthy of credence. There is nothing in his statement to explain as to how he discovered the loss of the original sale deed on the particular date. He says he made the report and what prompt ed him to make the report. It is also stated in this report that informant will obtain a copy of the sale deed The trial Court observes:
"There seems to be no earthly reason for the plaintiffs to withhold the original sale deed had they been in their possession"
Mere failure to file the original sale deed does not mean that the original sale deed has been lost. Absence of possession of the original can be due to various reasons other than the loss of the original If the transaction evidenced by the sale deed in question was never intended to be a genuine transfer, there would be no occasion for the original sale deed coming into possession of the purchaser in whose name it is executed And in that case the absence of possession of the original sale deed by the purchaser or the purchaser's successors-in-interest does not mean that the original has been lost. In out opinion the evidence led in this case to prove the loss of the original deeds, Exts. 3 and 4 is not only meagre but on the face of it unworthy of credence and, as such, it is impossible to come to the conclusion that the plaintiffs have succeeded in proving the loss of the original deeds so as to be entitled to lead secondary evidence to prove the contents of those documents
10. The learned counsel for the appel-lants, however, contends that in view of Sub-section (2) of Section 90 of the Indian Evidence Act added by U. P. Act 24 of 1954 there arises a presumption in favour of the copy and, as such, the same is to be received in evidence whether or not the original has been lost, Sub-section (1) of Section 90 of the Indian Evidence Act provides that any document purporting or proved to be thirty years old may be presumed to have been executed by the person by whom it purports to have been executed and further every other part of such document which purports to be in the handwriting of any particular person may be presumed that it is in that person's handwriting and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to have been executed and attested. Sub-section (2) added by the aforesaid U. P. Act says:
"Where any such document as is referred to in Sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume chat the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting and in the case of a document executed or attested that it was duly executed and attested by the person by whom it purports to have been executed or attested."
It is thus obvious that the presumption which was by virtue of Sub-section (1) available in respect of the original documents has now been by virtue of Sub-section (2) extended even to certified copies of registered documents. We fail to see as to how the provision in Section 90 can have any effect on Sections 61, 62, 63 and 65 of the Indian Evidence Act which occur in Chapter V of the Act and which chapter deals with documentary evidence. Section 61 says that contents of documents may be proved either by primary or secondary evidence. Section 62 says that primary evidence means the document itself. Section 63 lays down as to what is the secondary evidence. Section 65 says:
"Secondary evidence may be given of the existence, condition, or contents of a document in the following cases. . . . ."
It enumerates various circumstances in which it is permissible to lead secondary evidence. One of those mentioned in Clause (c) is when the original has been destroyed or lost. Thus, on reading these various provisions contained in Chapter V of the Indian Evidence Act it is abundantly clear that contents of a document can be proved by tendering the document itself, i.e., by tendering primary evidence and secondary evidence can be given to achieve the same object only in circumstances enumerated in Section 65. The only ground on which the appellants in the case in hand want to offer secondary evidence is that the original has been lost. That being so, unless they succeed in proving that the original has been lost, they can obviously not be permitted to offer secondary evidence. There arises no occasion to raise a presumption under Section 90 till a case for the reception of secondary evidence has been made out. Prior to amendment by U. P. Act No. 24 of 1954 a person offering a certified copy ot a registered document 30 years old had not only to make out a case for being entitled to give secondary evidence but had also to prove the execution of the document like any other document less than 30 years old. Since after the amendment the presumption under Section 90 is to be made in respect of 20 years old document and the same can also be extended to copies. There is no other effect of the amendment. In other words, so far as the right to offer secondary evidence is concerned, it continues to be governed by the same provisions even after the amendment introduced in Section 90 by which it used to be governed prior to this amendment. The only effect of the amendment is that if a party is found entitled to offer secondary evidence in accordance with the provisions contained in Chapter V of the Act, then he shall have no more to lead evidence to prove its execution provided the document is 20 years old. We are, accordingly, unable to accept the contention of the learned counsel that the appellants are entitled to have the copies of the sale deed and the deed of lease received in evidence whether or not they have succeeded in proving the loss of the original deeds. In that view of the matter we come to the conclusion that, because of their failure to prove the loss of the original, the appellants arc not entitled to prove the contents of the documents in question by tendering in evidence their certified copies.
11. Coming to the question of the alleged transaction of sale can be held to be a valid transaction as found by the trial Court, we find that the finding of the trial Court on that question is rather sketchy and proceeds on no sound basis. It may be stated at the very outset that there can possibly be no direct evidence in respect of the plea raised in defence challenging the genuineness of the transaction relied on by the appellants. It has got to be judged on the basis of the circumstances of the case. Judged in that light, it does not appear to be a genuine and effective transaction. There are numerous circumstances to support that view though of course there is and there can possibly be no direct evidence to support it. A mere perusal of the sale deed Ext. 3 shows that no reason is made out for selling the house and the shops in which Sultan Khan lived and carried on his business. The consideration of the sale deed is Rs. 98 and the same consists of several items said to have been taken as parole debts earlier than the sale deed except two items one of which U on account of interest due on parole loans and the other is for the purchase of stamps. There is nothing in the sale deed to indicate if the purchaser or any one on her behalf was actually present at the time Sultan Khan presented the sale deed for registration.
There is no convincing evidence on the record except the statement of Habibullah to say if the original sale deed came into possession of the purchaser. There is nothing on the record to suggest if after selling the house Sultan Khan vacated it and remained out of possession till he executed the deed of lease almost four months after the date of sale. On the other hand, it is abundantly clear that Sultan Khan and thereafter his successors-in-interest continued to live in the house and to occupy the shops till the same passed out of the family as a result of various transactions enumerated above. The rent stipulated under the deed of lease is annas eight per month. The evidence led by the appellant to prove that rent was paid by Sultan Khan and his heirs is worthless and has been rightly disbelieved by the trial Court. There is nothing on the record to show that after her purchase Imtiazan, daughter of Sultan Khan, ever cared to get the house entered in her name in the registers of Notified Area, Pihani, wherein lies the disputed property. On the other hand, Exts. A-4. A-5 and A-6 (pp. 124 to 126 of the paper-book) which are copies of demand registers of Notified Area, Pihani, for the years 1926-27, 1927-28 and 1928-29 show that Sultan Khan and Wahid Ali entered as owners of a house situate in Pihani.
It is admitted on all hands that Sultan Khan had only one house in Pihani. Ext. A-3 is the order dated 25th November, 1913 passed on the application of Sultan Khan dated 17th November, 1913 for permission to make constructions This also shows that it was Sultan Khan who made repairs. Various transactions, enumerated above which have been held to be genuine by the trial Court and which finding has not been challenged before us also indicate that Sultan Khan and his heirs continued to deal with the property in question as their own. The very fact that in the year 1904, i.e., about 8 years after the alleged sale of 1896, Sultan Khau gifted half of the house and halt share in the shops to his wife Imtiazan would indicate that the sale of 1896 was not a genuine transaction. Judged in the background of all these circumstances, absence of possession of the original sale deed by the vendee or her successor-in-interest assumes importance. The deed of lease, Ext. 4 is for a period of three years. So obviously on the expiry of that period the tenancy stood determined. No attempt appears to have ever been made on the part of the plaintiffs or their predecessors-in-interest to take possession of the property after the determination ol the tenancy on the expiry of the period stipulated in the deed of lease, Ext. 4. Habibullah, plaintiff No. 3, actually objected to the auction sale held in 1933 and his objection was dismissed on the ground that his remedy, if any was by way of a regular suit. Still, neither he nor any of his co-heirs nor even Imtiazan, daughter of Sultan Khan, during her lifetime appears to have done anything in the matter. All these circumstances are, in our opinion, sufficient to establish that the transaction evidenced by the sale deed dated 24th March, 1896, was anything but genuine and effective. We, therefore, conclude that no title passed to Imtiazan, daughter of Sultan Khan, under the sale deed, Ext. 3.
12. Next we come to the question of estoppel. The learned counsel for the appellants challenges the finding of the Court below that the suit is barred by estoppel. His contention is that in so far as tenancy is both heritable and transferable, Sultan Khan, his heirs after him and their transferees must be deemed to have continued in possession as tenants because of Sultan Khan having executed a lease in 1896 and there being no determination of the tenancy at any stage by the appellants or their mother Imtiazan. On that score he places reliance on Clauses (m) and (p) of Section 108 of the Transfer of Property Act for showing the liability of the lessor and points out that if in contravention of those provisions the lessee or any one claiming under the lessee does anything, that cannot be a basis for plea of estoppel against the landlord. He also places reliance on the definition of the term 'notice as given in Section 3 of the Transfer of Property Act and contends that in view of the registered deeds, Exts. 3 and 4 the defendants must be fastened with the knowledge of the appellants title and if they raised constructions despite that knowledge, they cannot take advantage of their own wrong by invoking the plea of estoppel or acquiescence
Lastly he points out that Exts. A-11 and A-12 referred to above show that plaintiff No. 3 took objection to the auction held in 1933 against Wahid Ali on the ground that the property auctioned belonged to him and not to Wahid Ali and defendant No. 1 being the purchaser was a party to it. So also it follows that defendant No. 1 had notice of appellant's assertion of their title. As against that contention, the learned counsel for the contesting respondents has urged that where a person in bona fide belief asserts that a certain property belongs to him, spends money upon it and the true owner stands by and allows him to spend money and make improvements upon his land, the true owner is estopped from asserting his title to the land as against the person making improvements in such bona fide belief. In support of his contention he places reliance on Hari Bhusan Halder v. Sheikh Abdul. AIR 1927 Cal 54; Venkataswami Naidu v. Muniappa Mudaliar, AIR 1950 Mad 53, Rafiq Hussain v. Bishnath Prasad, AIR 1925 Oudh 258; and Imami v. Ibrahim, AIR 1929 Oudh 292. In our view the cases relied on by the learned counsel for the respondents do not appear to apply to the facts of the case. If it be found that the sale of 1896 was a genuine transaction and had the effect of transferring title to the appellants' mother Imtiazan and the tenancy created thereafter in favour of Sultan Khan remained undetermined throughout, then having regard to the various facts pointed out by the learned counsel for the appellants, it could not be held that the claim is barred by estoppel. We conclude accordingly.
13. Lastly, we come to the question of limitation. The stand taken by the learned counsel for the appellants is that since the tenancy created in favour of Sultan Khan by the deed of lease Ext. 4 was never determined according to law either by the lessor or his successors-in-interest or by the lessee or his successors-in-interest till the appellants chose to sue the persons in occupation claiming under the lessees treating them as trespassers, there can arise no question of limitation. It may not be possible to quarrel with the argument as raised but having regard to the facts of the case, we are of opinion that there is no basis for the contention that the tenancy created in 1896 continued undetermined till the filing of the suit giving rise to this appeal. As pointed out by the learned counsel for the respondents, the tenancy created thereby being for a limited period stood determined by efflux of time as provided by Clause (a) of Section 111 of the Transfer of Property Act. Merely because on such determination the lessor took no steps to recover possession, it cannot be interred that he allowed lessees to hold over as envisaged by Section 116 of the Transfer of Property Act. Section 116 provides:
"If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106."
It is thus obvious that mere inaction on the part of the lessor does not result in holding over. For holding over to come into existence there must be some positive act on the part of the lessor as envisaged in the provision reproduced above. It can come into existence where rent is accepted or where the lessor otherwise assents to the lessee continuing in possession. In the instant case evidence has no doubt been led to show that rent was accepted subsequent to 1899 but that has been disbelieved by the Court below and we see no good reason for differing on that point. So the position remains that in tact no rent was ever paid by the so-called lessees. But for the fact that the appellants of their mother never took any steps to recover possession on the expiry of the period stipulated under the lease Ext, 4, there is nothing on the record to show if the lessor ever assented to the lessees continuing in possession. We have thus no hesitation in coming to the conclusion that on the facts of the case no question of holding over can arise and as such the position remains that the tenancy stood determined in the year 1899. That being so, the suit for possession in order to be within limitation as provided by Article 139 of the Limitation Act, 1908, should have been brought within 12 years of such determination. The present suit not having been so brought is clearly barred by limitation.
14. There is yet another approach to the case Having regard to the allegations made in paragraphs 10 and 12 of the plaint, it is obvious that the appellants themselves came on an allegation of dispossession. That being so, they had to prove that their dispossession took place within 12 years of the suit. In view of the finding that the tenancy determined in the yeai 1899 and there resulted no holding over thereafter, it is not possible for the appellants to maintain that their constructive possession continued till they determined the tenancy by filing the suit. The appellants have failed to lead any evidence worth the name to show that their dispossession referred to in paragraphs 10 and 12 of the plaint took place within 12 years of the date of the suit. That being so, Article 142 of the Limitation Act, 1908, would bar the suit for possession. So in any view of the matter, the finding of the Court below that the suit is barred by limitation appears to be correct and cannot be disturbed.
15. Before we take leave of the case we may notice the contention of the appellants' counsel that irrespective of the result of the appeal the appellants are entitled to get Rs. 250 from the contesting respondents on account of the fee they had to pay to the Advocate whom they were forced to appoint as guardian ad litem of the minor respondents because of the refusal of their mother, grandfather and uncle to work as their guardian ad litem. We are unable to appreciate the contention. A natural guardian of a minor is under no obligation to function as his guardian ad litem in a litigation so as to be liable for the costs the plaintiffs may have to incur in getting the Advocate appointed as guardian ad litem in the event of his refusal. We accordingly reject the contention.
16. In view of the foregoing, the appeal fails and is accordingly dismissed with costs.