Holding

An ex‑proprietor is deemed to be in legal and constructive possession of his Khud‑kasht land at the date of vesting and is entitled to retain it under Section 4(2) of the Madhya Bharat Zamindari Abolition Act, 1951.

Issues considered

Whether an ex‑proprietor can retain possession of Khud‑kasht land under Section 4(2) of the Madhya Bharat Zamindari Abolition Act, 1951 when the lease has expired and the tenant remains in possession as a tenant‑at‑sufferance.
Whether the land must be recorded as Khud‑kasht in the annual village papers immediately before the date of vesting, or any prior record suffices for the benefit of Section 4(2).
Whether the State, as the vestiary of the land, must be impleaded as a party to the suit after vesting.
Whether the possession of a tenant‑at‑sufferance is to be treated as trespass for the purpose of construing the Act.

Legislation cited

Limitation Act
Madhya Bharat Zamindari Abolition Act, 1951s. 2(c), s. 3, s. 41, s. 4(2)

Subjects

Zamindari abolitionKhud‑kasht landtenant‑at‑sufferanceconstructive possessionSection 4(2) benefitState non‑joinderland reform

Judgment

SMT. GORABAI AND ORS. A
v.
UMMED SINGH (DEAD) BY LRS. AND ORS.

APRIL 19, 2004

[P. VENKATARAMA REDDI AND D.M. DHARMADHIKARl, JJ.]

Madhya Bharat Zamindari Abolition Act, 1951-Section 2(c) 4(2) and
41-Grant of/ease by proprietor to tenants for a period-Proprietor instituting
eviction proceedings against tenant after the expiry of the lease-Act coming C
into force and lands vested with State with benefit of retai[1ing of lands which
are under personal cultivation-Entitlement of benefit-Held, on facts, the
proprietor is entitled to benefit under the Act since on expiry oflease and after
the initiation of eviction proceedings by the.proprieto.·, the .tenants are in
unauthorised occupation of the lands and are deemed to be trespassers.
D
Appellant-plaintiffs were proprietors/zamindars of the suit lands.
The suit lands were granted on lease to the respondent-defendan~s. On
expiry of the lease in July 1951, the appellants instituted eviction
proceedings before the Revenue Court which got abated for not
substituting the legal representatives of one of the defendants. The Madhya
Bharat Zamindari Abolition Act, 1951 came into force aboslishing all E
proprietary rights of the proprietors and vesting in the State. Section 4(2)
of the Act gave a benefit to the proprietor to retain possession of those
lands which were in personal cultivation (Khud Kasht lands) before the date
of vesting. Under Section 41 of the Act, tenants and proprietors holding
Khud kasht lands are to be deemed to be tenants of the State Government F
from the date of vesting.

The appellants instituted a suit for eviction against the respondents.
The lower courts and the High Court dismissed the suit of the appellants
holding that they are not entitled to benefit under section 4(2) of the A.~t
since on the date of vesting, the suit lands were in actual cultivating G
possession with the respondents and not with the appellants; and that on
the date of vesting, the suit lands were not shown in annual village papers
as Khud kasht lands.

In appeal to this Court, the appellants contended that the suit lands
385 II
386 SUPREME COURT REPORTS (2004] SUPP. I S.C.R.

A were shown as Khud kasht lands in the annual village papers before the
grant of lease to the respondents; that for seeking retention of such lands,
it is not necessary that such lands should be so re~orded in annual papers
immediately preceding the date of vesting; that on the date of vesting, the
lease granted to the respondents had already expired and the possession
B of the respondents was that of tenants-at-sufferance or trespassers; that
they had the right to possess on the date of vesting and that they were in
constructive possession of Khud kasht lands; and that for giving the full
benefit under section 4(2) of the Act, the possession of the tenant-at-
sufferance respondents should be ignored.

C The respondent, raising a preliminary objection, contended that the
suit is not maintainable for non-joinder of State as a party since after the
Act came into force, the suit lands vested with the State;

Allowing the appeal, the Court

D HELD: 1.1. The possession of the tenant after expiry of the term of
lease is treated as unauthorised possession being against the consent and
wish of the landlord. Such a tenant is railed a tenant-at-sufferance and
his possession is deemed to be almost like that of a trespasser. On the
expiry of the period of the lease and service of notice of eviction on the
respondents, even though they are not actually evicted from the Khud kasht
E lands, their possession would be deemed to be of trespassers and the lessor
or the proprietor should be held to be legally and constructively in
possession. Any cultivation by the tenant-at-sufferance against whom
action was initiated to evict by the date of vesting should be deemed to be
the cultivation of the proprietor himself. (393-D-F)
F · 1.2. A restricted meaning cannot be given to give effect to the
provisions of section 4(2) of the Madhya Bharat Zamindari Abolition Act,
1951. The benefit of the section cannot be denied to an ex-proprietor who
has been illegally deprived of his right to possess and cultivate his Khud
Kasht lands. In the instant case, the proprietor could not regain possession
G of Khud Kasht lands for personal cultivation as the tenants, despite expiry
of their period of lease, illegally continued in possession and the eviction
proceedings in the Revenue Court abated for ~ant of substitution of the
legal representatives of one of the tenants. The th~n existing Revenue law
d!d not bar filing ofa civil suit within the prescribed period under the
Limitation Act, by the proprietor for seeking eviction and obtaining
H possession of his Khud Kasht lands from his tenants. On the date of vesting,
GORABAI v. UMMED SINGH [DHARMADHIKARI, J.] 387

the term of lease granted to the defendants as tenant had expired and their A
possession thereafter had been rendered as unauthorized. The ex-
proprietor should be deemed to be legally in possession and cultivation of
his Khud Kasht land on the date of vesting. In accordance with Section 41
of the Act, the ex-proprietor in respect of his Khud Ka$ht land is deemed
to be tenant of the Government from the date of vesting. He had the right
to retain possession of his Khud Kasht land under Section 4(2) of the Act. B
He had also acquired status of tenant under Section 41 of the Act. His
right to sue for possession of the lands which are in unauthorized
occupation of the defendants as tenants-at-sufferance has therefore to be
recognized and granted by passing a suitable decree in his favour.
[393-G-H; 394-A-D) C
Choudhary Udai Singh and Anr. v. Narainbai and Ors., [2000) 8 SCC
542, relied on.

Himmatrao v. Jalkisandas and Ors., AIR (1996) SC 1974; Pancham
Singh v. Dhaniram, (1977) MPLJ 787; Deo Rao v. Ramachandra, (1982) D
MPLJ 414 FB; Harishchandra Behra v. Garboo Singh and Ors., (1961)
MPLJ 835 DB and Dayaram Bodhram v. Maheshwar Danardan, (1961)
MPLJ 501 DB, referred to.

1.3. It is not proper at this belated stage to allow parties to implead
the State as a party. The objection to the non-maintainbility of suit for E
non-joinder of State as party raised at this stage, therefore, is rejected.
However, it is clarified that any decision rendered in these proceedings
does not affect the rights and remedies of the State against the parties
under the provisions of the Act.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 689 of 1995. F
From the Judgment and Order dated 18.1.83 of the Madhya Pradesh
High Court in C.S.A. No. 230 of 1969.

U.N. Bachhawat, Sushi! Kumar Jain, A.P. Dhamija, H.D. Thanvi, Sharad
Singhania and Ms. Ruchi Kohli for the Appellants. G
S.S. Khanduja, Indra Makwana and Ms. Madhurima Tatia for the
Respondents.

The Judgment of the Court was delivered by

DHARMADHIKARI, J. This appeal has been preferred by the Legal H
388 SUPREME COURT REPORTS [2004) SUPP. l S.C.R.

A Representatives of the original plaintiff. The original defendants are also
dead and are now represented by their Legal Representatives. The plaintiff
sought eviction of the defendant and possession of the suit lands. The suit
was dismissed throughout and decree has been confirmed in the second appeal
by the High Court. ·

B ·Shorn of details,. the question involved is whether the suit lands which
continued in possession of the defendants even after expiry of their term of
lease, can be claimed by the plaintiff landlord as his Khudkasht lands of
.which he can retain possession as an ex-proprietor under sub-section (2) of
section 4 of Madhya Bharat Zamindari Abolition Aci, 1951 [for short 'the
C Act].
The relevant facts as concurrently found by all the courts and are no
longer in dispute are as under :-

The plaintiffVirendra Singh was proprietor or Zamindar of Survey No.
D 216 of village Kanawar, District Bhind. The suit lands in that Survey were
recorded up to Samvat 1999·[corresponding to the year 1942] as Zan1indar's
'Khud-kasht' lands as defined in section 2(c) of the Act. Under Gwalior-Mal-
Qanoon which was the revenue law applicable to the agricultural lands of the
Gwalior region of erstwhile State of Madhya Bharat, Khud-kasht lands could
be leased by the proprietor for cultivation. A lease for a period of eight years
E · was granted 'to the defendants. On expiry of the period of lease i.e. in July
1951, the proprietor promptly instituted eviction proceedings in the Revenue
Court under the Gwalior-Mal-Qanoon, for obtaining possession of the land.
The proceedings for eviction instituted prior to the coming into force of the
Act did not fructify in favour of proprietor. Those proceedings terminated as
F inconclusive because the· Legal Representatives of one of the tenants were
not brought on record.

Proprietary rights were abolished by the Act which came into force on
25.6.1951 and with effect from the notified date 02,10.1951, all proprietary
rights of proprietors in accordance with the provisions of section 3 of the Act
G stood vested in the State. Section 4( l) enumerates the various kinds of rights,
title and interest of the proprietors which were divested and vested in State.
Sub-section (2) of section 4 of the Act allowed the proprietor to remain in
possession of his Khudkasht land which is so recorded in annual village
papers before the date of vesting. The lands which were in personal cultivation
of the proprietor have been described as 'Khudkasht.' 'Khudkasht' is defined
H under section 2(c) of the Act as under :-
.f
J
....'
GORABAI v. UMMED SINGH [DHARMADHIKARI, J.) 389

"Section 2(c) : 'Khud-kasht' means land cultivated by the Zamindar A
himself or through employees or hired labourers and includes sir
land."

Sub-section (2) of section 4 saves Khud-kasht lands in favour of the
proprietor to be retained by him. It is a provision directly for interpretation
and application to the facts of the case and reads as under :- B
"Section 4(2) : Notwithstanding anything contained in sub-section
(1), the proprietor shall continue to remain in possession of his khud-
kasht land, so recorded in the annual village papers before the date
of vesting. "
c
(Emphasis added)

All proprietary rights stand abolished by Section 3 of the Act. In
accordance with Section 41 of the Act, tenants of various categories described
therein and proprietors holding Khudkasht or Sir lands are to be deemed to
be tenants of the Government from the date of vesting. Section 41 reads as D
under:

"41: Tenant to be deemed to be a Government's tenant from the date
of vesting and Revenue Administration and Ryotwari Act to apply to
the vested land - When the proprietary rights in any village, Muhal,
land, chak or block are vested in the State under Sectfon 3 of this Act, E
every Sakitulmilkiyat, Pacca Maurusi, Mamuli Maurusi, Gair Maurusi
tenant of such village muhal, land, chak or block who was in possession
of any holding shall from the date of vesting, be deemed to be a
tenant of the Government and the proprietor shall also likewise, in
respect of the holding of his Khudkasht or Sir, be deemed to be a F
tenant of the Government from the date of vesting and all provisions
of Part II of Madhya Bharat Revenue Administration and Ryotwari
Land Revenue and Tenancy Act, Samvat 2007, shall, subject to other
provisions of this Act, apply to such village, Muha!, land, chak or
block are similar provisions of Qanoon Mal, Gwalior State, Samvat
1983, and of other laws shall cease to apply: G
Provided that all cases pending before any Revenue Court at the time
of commencement of this Act shall be decided according to the
provisions of Acts and laws heretofore in force."

(Undertaking for pointed attention) H
390 SUPREME COURT REPORTS [2004) SUPP. 1 S.C.R.

A The contention which was advanced on behalf of the defendants and
has persuaded the courts below and the High Court to dismiss the suit is that
on date of vesting, the suit lands were not in actual cultivating possession of
the proprietor as admittedly they were in possession of defendants as his
tenants. The High Court was also of the view that on the date of vesting, the
B lands having not been shown to have been recorded in annual village papers
as Khud-kasht, they cannot be held to have been saved to be retained by the
ex proprietor under sub-section (2) of section 4 of the Act.

Learned counsel appearing for the Legal Representatives of the ex
proprietor in this appeal, strenuously urged that annual village papers, duly
C exhibited before the court, clearly established that before grant of lease of the
lands for eight years to the defendants, the lands were recorded as Khud-
kasht lands and under the then existing revenue law, it was permissible to
grant lease 'of Khud-kasht land by the ex proprietor. Attention specifically is
invited to annual village papers of Samvat 1999 corresponding to year I 942
[Ex.P-9] in which the ex proprietor is shown in possession of the suit lands
D which are described as Khud-kasht.

The first limb of argument advanced on behalf of the LRs of the
proprietor, is that under sub-section (2) of Section 4 of the Act, for seeking
retention of the Khud-kasht lands, it is not necessary that the land should be
E so recorded in annual village paperi; immediately preceding the date ofvesting.
It is pointed out that the consistent view of law holding the field in the State
of Madhya Bharat (now part of Madhya Pradesh) is that entry in annual
village papers of the lands as Khud-kasht can be of a period not necessarily
before the date of vesting. Reliance is placed on the decision of Madhya
Pradesh High Court in Pancham Singh v. Dhaniram, (1977) MPLJ 787.
F
The other limb of the argument for availing provisions of sub-section
(2) of section 4 of the Act is that on the date of vesting, the eight years' lease
granted to the tenants had expired and their possession, thereafter despite
eviction notice and proceedings for eviction, was that of tenants-at-sufferance
which is as worst as that of trespassers. It is submitted that the Khud-kasht
G lands which the proprietor had 'right to possess' on the 'date of vesting' by
evicting the trespassers or tenants-at-sufferance should be deemed to be
constructively in possession as Khud-kasht lands of the proprietor. The
possession of the tenant-at-sufferance or trespassers has to be ignored to give
full benefit of the provisions of sub-section (2) of section 4 of the Act which
H intends to save such part of land to the proprietor of which he was himself
GORABAI v. UMMED SINGH [DHARMADHIKARI, J.] 391

a tiller. In support of the above argument, decisions of Madhya Pradesh High A
Court and of this Court are cited which take a view that Khud-kasht lands
even though in possession of trespasser, would be saved from vesting in the
State and allowed to be retained by the proprietor under sub-section (2) of
section 4 of the Act and under analogous provision of Madhya Pradesh
Abolition of Proprietary Act. The decisions relied are : Choudhary Udai a
Singh and Anr. v. Narainbai and Ors., [2000) 8 SCC 542; Deo Rao v.
Ramachandra, (1982) MPLJ 414 (FB); Harischandra Behra v. Garboo Singh
and Ors., (1961) MPLJ 835 (DB); Dayaram Bodhram v. Maheshwar
Danardan, (1961) MPLJ 50l(DB) and Himmatrao v. Jaikisandas and Ors.,
AIR {1966) SC 1974.

We have considered the submissions made by the learned counsel for
c
the parties and the provisions of the Act. The provisions of the Act read with
its preamble clearly show the legislative intent to abolish Zamindari system
and establish direct relationship of the tiller with the State. The proprietors,
Zamindars or Malguzars by whatever names they were called in different
regions, were 'intermediaries' and their rights as intermediaries were taken D
away. The proprietors were, however, allowed to retain such lands which
were in their personal cultivation and recorded as 'Khudkasht.' The provisions
of sub-section (2) of section 4 of the Act have, therefore, to be interpreted
keeping in view the above aim and object of the Act.

The decision of Division Bench of the Madhya Pradesh High Court in E
the case of Pancham Singh (supra), which is relied as the settled law in the
State of Madhya Bharat (now forming part of the State of Madhya Pradesh),
fully supports the arguments advanced on behalf of the ex proprietor that if
the nature of the lands is Khud-kasht and it is so recorded in annual village
papers in any of the years before the date of vesting, the benefit of provisions p
under sub-section (2) of section 4 should not be denied to the proprietor. The
relevant part of the judgment of the Division Bench of Madhya Pradesh High
Court reads as under :-

"The combined effect of sections. 3, 4(2) and 2(c) is that a proprietor
shall continue in possession in spite of the abolition of the Zamindari, G
(I) if the land was his 'Khud-Kasht' i.e. cultivated by the Zamindar
himself or through employees or hired labourers, and (ii) it was
recorded. in the annual village papers before the date of vesting, i.e.
before Samvat year 2008. We do not see any force in Shri Dixit 's
contention that the expression 'before the date of vesting' must be H
392 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A read as immediately before the date of vesting. There is no warrant
for adding the word. 'immediately, ' which is not there in the section.
All that the saving clause requires is (1) that by its nature the land
should be Khud-Kasht, and (2) that it is not enough to be Khud-Kasht
land it should also have been recorded as such. A trespasser who
having unlawfully dispossessed a proprietor was in possession in
B Samvat year 2007, cannot be heard to say that since the proprietor
was not in possession in Samvat year 2007, or was not recorded as
such in the Samvat year 2007, he lost his right to possession. It will
be repugnant both to the letter and spirit of the law to deprive a
person of his rights to possession merely because he was unlawfully
c and forcibly dispossessed."

This decision, it is pointed out, was followed in subsequent decisions
and the Jaw laid down therein is being consistently followed.

In the instant case, it is an u~disputed position that the suit lands were
D recorded in annual papers of 1942 as Khud-kasht lands of the ex proprietor
and they were as such leased out for a fixed period of eight years to the
tenants. The appellate Court observed "It was also undisputed that in Samvat
1999 i.e. immediately before giving the disputed land on patta, the plaintiff
who was the zamindar cultivated the land as Khudkasht." Therefore, one
important condition contained in sub-section (2) of section 4 is satisfied that
E the land was Khud-kasht and so recorded in annual village papers before the
date of vesting.

Admittedly, on the date of vesting, the ex proprietor was not in actual
cultivating possession of the Khud-kasht lands. The lands were in possession
of the tenants even though the lease of eight years' duration granted to them
F had expired and after servin·g eviction notice, proceedings for eviction were
instituted by the proprietor again_st them even prior to date of vesting. After
coming into force of the Act, the present suit was filed for their eviction and
obtaining possession of the land.

G The possession of the tenant after expiry of the term of lease is treated
in law as unauthorised possession being against the consent and wish of the
landlord. Such a tenant is called a tenant-at-sufferance and his possession is
deemed to be almost like that of a trespasser. Mulla in the 'Transfer of
Property Act', 9th Edition at pp. 1013 explains the status of tenant-at-sufferance
thus :-
H
GORABAI v. UMMED SINGH [DHARMADHIKARI, J.] 393

"A tenancy at sufferance is merely a fiction to avoid continuance in A
possession operating as a trespass. It has been described as the least
and lowest interest which can subsist in reality. It therefore cannot be
created by a contract and arises only by the implication of law when
a person who has been in possession under a lawful title continues in
possession after that title has determined, without the consent of the
person entitled. But the Act, as already observed is not exhaustive;
B
and the term is a useful one to distinguish a possession, rightful in its
inception but wrongful in its continuance, from a trespass wrongful
both in its inception and in its continuance. A tenant holding over
after the expiration of his term is a tenant at sufferance. If he holds
over against the landlord's consent, he is a trespasser, and is liable C
for mesne profits" [Emphasis added]

Decisions of this Court and the Madhya Pradesh High Court, have been
cited before us holding that even though the proprietor is dispossessed. of
Khudkasht lands by a trespasser, the proprietor is deemed to be in cultivating
possession of the lands for the purpose of the beneficial provisions of sub- D
section (2) of section 4 of the Act and to allow him to retain the lands. We
find sufficient force in the submission made on behalf of LRs of the ex
proprietor that the same principle as is applied in case of a trespasser should
also be made applicable to the case of tenants-at-sufferance. On the expiry
of the period of their lease and service of notice of eviction on them, even
though they are not actually evicted from the Khud-kasht lands, their
E
possession would be deemed to be of trespassers and the lessor or the proprietor
should be held to be legally and constructively in possession. Any cultivation
by the tenant-at-sufferance against whom action was initiated to evict by the
date of vesting should be deemed to be the cultivation of the proprietor
himself. F
The High Court referred to the definition of the Khud-kasht lands given
in clause (c) of section 2 of the Act for coming to the conclusion that unless
on the date of vesting, the proprietor is in actual cultivating possession, the
benefit of sub-section (2) of section 4 of the Act to allow him to retain the
Khud-kasht lands cannot be granted. We find no good reason to give such a G
restricted meaning and effect to the provisions of sub-section (2) of section
4 of the Act. The expression 'Khud-kasht' has been defined to describe the
category of land fonning part of proprietary. Such land under sub-section (2)
of Section 4 of the Act has to be allowed to be retained by the proprietor. The
benefit of sub-section (2) of section 4 cannot be denied to an ex proprietor H
394 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A who has been illegally deprived of his right to possess and cultivate his
Khud-kasht lands. In the instant case, the proprietor could not regain possession
of Khud-kasht lands for personal cultivation as the tenants, despite expiry of
their period of lease, illegally continued in possession and the eviction
proceedings in the Revenue Court abated for want of substitution of Legal
B Representatives of one of the tenants and due to the intervening legislation .
that is the present Act which came into force w.e.f. 02.10.1951. It may be
made clear that the provisions of Gwalior-Mal-Qanoon did not bar filing of
a civil suit within the prescribed period under Limitation Act by the proprietor
for seeking eviction and obtaining possession of his Khud-kasht lands from
his tenants. On the facts found in this case, on the date of vesting the term
C of lease granted to the defendants as tenant had expired and their possession
thereafter had been rendered as unauthorized. The ex-proprietor should be
deemed to be legally in possession and cultivation of his Khudkasht land on
the date of vesting. In accordance with Section 41, the ex-proprietor in respect
of his Khudkasht land is deemed to be tenant of the Government from the
date of vesting. He had right to retain possession of his Khudkasht land under
D Section 4(2) of the Act. He had also acquired status of tenant under Section
41 of the Act. His right to sue for possession of the lands which are in
unauthorized occupation of the defendants as tenants-at-sufferance has
therefore to be recognized and granted by passing a suitable decree in his
favour.
E The following observations of this Court in the case of Choudhary
Udai Singh and Anr. v. Narainbai and Ors., [2000) 8 SCC 542 para 7 at p.
544 supports our conclusion :-

"In Harishchandra Behra v. Garbhoo Singh, [1961) JLJ 780 (CN
F 203), the expression 'personal cultivation' is explained as not mere
bodily cultivating the land but com~tructively also and also the right
to possess against a trespasser. If a wrongdoer takes possession, steps
to exclude him can certainly be taken and cultivation of trespassers
in such circumstances cannot clothe him with any right and his
cultivation has to be deemed to be on behalf of the rightful owner.
G Thus the appellants are entitled to claim right to possess in respect of
the land in question. We are further fortified by the decision in
Himmatrao v. Jaikisandas, AIR (1966) SC 1974 where a distinction
has been drawn between a suit brought by a proprietor in his character
as proprietor for ·possession of property and in his individual right to
H possess in respect of the said property against the trespasser. The
GORABAI v. UMMED SINGH [DHARMADHIKARI, J.] 395
High Court lost sight of the provisions of section 41 of the Act which A
enables even a proprietor holding land khudkasht or sir, to be deemed
to be a tenant from the date of vesting. If the appellants were entitled
to be put in possession of the land and the same had been deprived
of by a trespasser, that possession has to be recognised as that of the
person who is entitled lawfully to cultivate the land in question.
B
Lastly, only a mention is required to be made of an objection of a
preliminary nature raised by the other side, for the first time in this appeal,
that as after the date of vesting, the lands happened to be recorded in the
name of State, the State was a necessary party to the suit. Reference is also
made to the provisions of Order 1 Rule 3(A) of the Code of Civil Procedure C
as amended in the State of Madhya Pradesh. In view of the discussion
aforesaid, we do not think proper at this belated stage.to allow parties to
implead the State of Madhya Pradesh as a party. The objection to the non-
maintainability of suit for non-joinder of State as party raised at this stage,
therefore, is rejected. However, it is clarified that any decision rendered in
these proceedings does not affect the rights and remedies of the State against D
the parties under the provisions of the Act.

In the result, the appeal succeeds and is allowed. The judgments
respectively of the High Court and the courts below, are, hereby, set aside.
The suit in tenns of the prayer clause in the plaint to the extent of delivery
of possession of the lands in suit is decreed. E
In view of the long pendency of the litigation between the parties and
as both sides are being represented by Legal Representatives, we leave the
parties to bear their" own costs in this appeal.

B.S. Appeal allowed. F