Narasimham, C. J.
1. This is an appeal by the State of Orissa against the decision of the Subordinate Judge of Dhenkanal decreeing the plaintiff-respondent's suit for declaration of title and ether consequential reliefs in respect of 13 villages in the district of Dhenkanal on the strength of a grant made in her favour by the Ruler of Dhenkanal on 14th May, 1939.
2. The respondent plaintiff is the Rani Sahiba of Dhenkanal, her husband, the Raja Sahib of Dhenkanal being the Ruler of Dhenkanal which was a Feudatory State under the paramountcy of the British Crown till the lapse of paramountcy with the passing of the Indian Independence Act, 1947. The plaintiff's husband (P. W. 1), Raja Sankar Pratap Singh Deo Mahendra Bahadur, was married to her sometime in 1924. In 1935 he made a grant of 8684.55 acres of land (Ex. A) in her favour.
The reason for the grant, as stated in that document, Ext. A was that 'on the analogy of the precedents that are in vogue in the family of the Rulers of the State since time immemorial, the Rani Sahiba is allowed Khanja grant in the shape of Khamar lands and tenure.........' This grant wasgiven effect to in due course. It further appears that out of the total grant of 8684.55 acres, about791 acres consisted of lands in the occupation of tenants, about 363 acres were in the khas possession of the grantor, namely the respondent, and the remaining lands were all jungle and waste.
The grant included rights over minerals, quarries, fisheries and forests. In 1939 the Ruler made another grant in favour of his wife (Ext. 1) (hereinafter referred to as the 'impugned grant') by which he assigned to her full right over 13 villages in Dhenkanal State including the rights over forests, mineral, fisheries, etc. As the validity of this latter grant is the subject matter of the present litigation. I may quote the same in lull :
'I Raja Shankar Pratap Singh Deo Mahindra Bahadur do hereby pass the following orders on the analogy of the precedents that are in vogue, in the family of the Rulers of this State since time immemorial.
1. Srijukta Rani Saheba is allowed Khanja grant in the shape of khamar lands and tenures in the villages specified in schedule A hereto attached. This grant carries with it the enjoyment of all forests waters, minerals, wood, stone and fisheries which may exist now or hereinafter within the lands.
2. Over and above these properties Srijukta Rani Sahiba is entitled to appropriate to herself the income of these khamar lands which she has of late reclaimed as mentioned in Schedule B hereto attached.
3. The State will have no claim whatsoever to any of these lands and the incidents attached to them regarding school and forest and local cesses will be the same as in the case of other Khanja grants already made in favour of the other members of the Raj family.
4. The Officials of the State cannot and should not interfere in any way with the rights of Srijukta Rani Sahiba except so far as the question of general administration is concerned.
5. This order will take effect from the 1st January 1940 (1345 Sal Solapan Amli).
Sd. S. P. S. D. M. Bahadur.
14.5.39
Darbar Dhenkanal State.'
In paragraph 2 of the aforesaid grant there is art indirect reference to the previous grant of 1935 which has been included in the Schedule B. In the impugned grant also the reason for the grant was said to be 'the analogy of the precedents that are in vogue in the family of the Rulers of this State since time immemorial.' But there was considerable difficulty in putting the Rani Sahiba in possession of the thirteen villages on the basis of the impugned grant. The then Chief Minister of the State Shri A.K. Khan raised some objections in his note dated 11th January 1940 (Ext. 2) and also directed the Mutation Officer, by his order dated 13th May, 1940 (Ext. 4/g), to stay the correction of the record until further orders.
3. The impugned grant was the subject matter of some discussion between the Ruler and the then Political Agent Mr. Griffin (Ext. 7) in 1941. The Ruler accepted the Political Agent's advise to the effect that only the net revenue of the villages. should be assigned, amounting to Rs. 12,000/- perannum but that the Rani Sahiba shall have no right to interfere with the management of these villages. For the purpose of this litigation it is unnecessary to refer to the political agitation in Dhenkanal State at the time, in consequence of which the Ruler remained away from the State for several years.
It is sufficient to say that when the paramountcy of the British Crown lapsed in Aug. 1947 and the Political Agent's control was withdrawn, the Ruler revived the mutation proceeding in respect of these 13 villages on the 9th September 1947 (Ext. 4-m) and by his order Ext. 4/s dated 20th December, 1947 sanctioned the mutation of the name of the Rani Sahiba in respcet of the same. His order was given effect to in due course and possession of the villages was actually handed over to her sometime in January, 1948.
4. In the meantime, far-reaching constitutional changes involving the merger of the Princely States with the Dominion Government took place. These are now matters of history and they have also been referred to in innumerable judgments of this Court and of the Supreme Court. The Ruler of Dhenkanal executed the well known Merger Agreement in favour of the Dominion Government on the 15th December, 1947 ceding to the latter full authority and dominion over the State with effect from 1st January 1948. Article 4 of the Merger Agreement contained a clause to the effect that :
'The Raja, the Rani, the Rajmata, the Yuvraj and the Yuvrani shall be entitled to all personal privileges enjoyed by them whether within or outside the territories of the State, immediately before the 15th day of August, 1947.'
The Dominion Government took over the administration of Dhenkanal State with effect from 1st January, 1948 under the provisions of the Extra Provincial Jurisdiction Act, 1947 and delegated their functions to the Provincial Government who made the Administration of Orissa States Order 1948 for the administration of the said territory.
By paragraph 4 of the Order many of the statutes in force in what was then known as 'British India' were applied to all the Orissa States, including Dhenkanal with some modifications. Clause (b) of paragraph 4 of that Order, however, continued in force the previous customary laws in respect of matters that were not dealt with by the statutes applied to these cases, I may quote that clause in full.
'4. (b) As respects those matters which are not covered by the enactments applied to Orissa States under sub-paragraph (a) all laws in force in any of the Orissa States prior to the commencement of this order, whether substantive or procedural and whether based on custom and usage or statutes, shall subject to the provisions of this Order, continue to remain in force until altered or amended by an order, under the Extra Provincial Jurisdiction Act, 1947 (XLVII) of 1947.
Provided that the powers that were exercised by the Ruler of each such State under any of those laws prior to the commencement of this order, shall be exercised by the Provincial Government or any other officer specially empowered in this behalf by that Government.....'
Thus the Government of Orissa as the delegated authority of the Central Government continued to administer Dhenkanal until, in consequence of the amendment made to the Government of India Act of 1935 in 1949 and the insertion of two new Sections 290A and 290-B, these areas were absorbed in the Province of Orissa by the State Merger (Governors Provinces) Order, 1949, made on 27th July 1949 and Dhenkanal became a part of the Province of Orissa, subject to the jurisdiction of the Orissa Legislature.
5. In the meantime the Dominion Government continued their enquiries in respect of the private properties and personal privileges guaranteed to the Rulers and members of their family by the merger agreement. This enquiry necessarily took some, time, in the conditions prevailing then, and final orders in respect of such matters were passed sometime in 1949 more than a year after the cession of territories to the Dominion Government.
The Government of India issued a memorandum (Ext. K/1) on the Personal Privileges Of the Rulers and members of their families on 17th September 1948 (which was re-issued on 22nd September, 1949, Ext. K). Paragraph 28 of the former memorandum which is relevant for Our purpose may be quoted:
'28. Previous commitments of Rulers should be honoured :--
While as a general principle there would be no objection to recognition of the previous commitments of the Rulers, it has come to the notice of Government of India that the Rulers have entered into many transactions which cannot stand scrutiny, especially after the 15th December 1947. The Government of India are therefore of the opinion that the Provincial Government which are taking over the administration of the States and assuming their liabilities should not be saddled with, all these commitments. The Provincial Governments will, therefore, make enquiries and confirm such of them as are reasonable and bona fide.'
Thus the Dominion Government made it clear that with respect to previous commitments made by the Rulers, (especially between 15-12-47 and 1-1-48) only those which were found to be 'reasonable and bona fide' would be honoured. Ultimately on 22nd May, 1949 (Ext. 12) the Rani Sahiba was informed by the District Magistrate of Dhenkanal by his letter No. 5876 of that date that the Government of Orissa were not prepared to recognise the impugned grant. The material portion of his letter is quoted below:
'Dear Rani Sahiba,
I have the honour to inform you that the Government of Orissa are no.t prepared to recognise the following grants which were made by the Ruler to you in the imonth of December 1947 as they are not bona fide and reasonable. Accordingly, the action taken so far to mutate these lands and villages in your name and to allow you to collect rents, is annulled.'
By the aforesaid order apart from the impugned grant some other grants made by the Ruler were also annulled. Details cf these were fully describedin Home Department Notification No. 11228 States, dated 8th June 1949 quoted below:
Home Department.
NOTIFICATION.
The 8th June, 1949.
No. 11228-States -- In exercise of the powers conferred by Section 4 of the Extra Provincial Jurisdiction Act, 1947 (XLVII of 1947), read with notification No. 172-IB, dated the 23rd March, 1948, of the Government of India in the Ministry of States, the Government of Orissa are pleased to direct that:
(1) the commitments as specified in Schedule below made by the Ruler of Dhenkanal are, in the opinion of the Provincial Government, not reasonable and bona fide and are declared null and void and not binding on them and shall stand annulled as from the date of commitments;
(2) no Court shall have jurisdiction to call into question the validity of the order;
(3) the District Magistrate or the Sub-Divisional Magistrate in the District of Dhenkanal or any other officer in the said district authorised by the Provincial Government in this behalf shall give effect to this order in such manner as may be necessary including dispossession of the transferee or any other person or persons claiming under him;
(4) no suit, prosecution or other legal proceeding shall lie against any public officer for anything which is done in good faith in pursuance of this order.
DHENKANAL SCHEDULE,
1. Grant of 13 villages as Khanja to the Rani Saheba with a total area of 15,934.35 acres.'
............................'
The respondent then made representation to the superior authorities and these having been lailed, she brought the suit under appeal.
6. The claim of the Rani Saheba as put forward in her plaint was that in Dhenkanal Raj family there was a 'well recognised ancient and invariable custom' of the Ruler making a grant of villages known as 'Sindur Tika', grant to his wife on the occasion of their marriage. The plaintiff alleged that the impugned grant was made by way of recognition of this custom and it was not an arbitrary and mala fide grant made by the Ruler in favour of his wife. It was accordingly urged that the Government of Orissa had no jurisdiction to annul the grant on the ground that it was not bona fide or reasonable, and that the plaintiff was entitled to the decree as prayed for.
7. In the written statement filed by the State of Orissa, while claiming that the refusal to recognise the grant was 'an act of State' not justiciable in Courts, it was further alleged that the customary grant referred to by the plaintiff was honoured by the recognition of the earlier grant made in 1935 (Ext A) which was not annulled by the Govt. and that there was no custom of the Ruler making one grant after another in succession, alienating large slices of the State property in favour of his wife. Paragraph 7 of the written statement may be quoted in this connection:
'7.....The Ruler of Orissa States includingDhenkanal State were making khanja grants to their dependants and wives befitting their position and status and in consideration of the financial condition of their States but they had no such rights and authorities to make such a high grant of the present nature or to make grants one after another, in favour of the same dependant......... These grantsare no doubt in the nature of maintenance or Kharposh grants, creating only an inalienable lite interest in favour of the grantee'
8. The main question for consideration, therefore, is whether the decision of the Government of Orissa (as notified in the Home Department notification cited above) and communicated to the respondent by the Collector of Dhenkanal on the 22nd May 1949 (Ex. 12) declining to recognise the impugned grant, is an act of State not justiciable in the Municipal Courts. A second, though subsidiary point is whether, assuming that there was a custom of making some grant by the Ruler of Dhenkanal to his wife, that custom was, in fact, fully respected by the new sovereign when he did not interfere with the earlier grant of 1935,
9. Where a change of sovereignty is brought about either by cession or by conquest the question: as to how far the occupants of the territories could enforce, against the new sovereign, their rights as against the old sovereign has been well settled by innumerable decisions of the Privy Council and the Supreme Court. See AIR 1924 PC 216, Vijesinghji Jorawar Singhji v. Secy, of State; AIR 1941 PC 64, Secy. of State v. Rustum Khan; AIR 1947 PC 1, Asrar Ahmed v. Durgah Committee and AIR 1958 SC 816, D.D. Cement Co. v. Commr. of Income-tax.
The residents of the territories as subjects of the new sovereign, have only such rights as are granted or recognised by the new sovereign. Such recognition may be by legislation., or by agreement expressed or implied. Moreover even if in the Merger Agreement by which the former sovereign ceded his authority to the new sovereign there is a clause providing for recognition by the new sovereign of any existing rights that clause is incapable of enforcement in the Municipal Courts of the new sovereign.
10. Mr. G.K. Misra for the respondent quite properly did not challenge the aforesaid well known principles of international law but his main contention appears to be that the new sovereign did in fact recognise impugned grant and, after having done so it was not open to him to annul it later and claim justification for such annulment on the ground that it was an 'act of State'. He relied very much on Clause (b) in paragraph 4 of the Administration of the Orissa States Order (already quoted) by which the Government of Orissa, as the delegated authority of the Dominion Government solemnly assured the inhabitants of Dhenkanal State that from the 1st of January 1948 they would recognise and continue in force all customary laws that were in force prior to the merger.
According to Mr. Misra, the Sindur Tika grant of thirteen villages made by the Ruler of Dhenkanal in favour of the respondent was based on the customary law prevailing in Dhenkanal from timeimmemorial and once the new sovereign assured the subjects of that territory that he would honour all the pre-existing customary laws, it necessarily followed that he recognised all the rights flowing from such laws. It was not therefore open to the State of Orissa to annul those rights later on.
11. The plaintiff has already failed to prove that there was any custom of granting Sindur Tika villages by a Ruler to his wife as alleged in the plaint. The only witness in support of this custom is her husband (P. W. 1) who stated that such grants used to be made to his mother and grand-mother by the previous Rajas, but he was not able to produce any papers before the Court so as to give an idea of the extent of grant made by the former Rulers to their Ranees.
Moreover, according to his deposition, the Ruler for the time being could, at his sweet will also annul any such grant made by his predecessor, thus reducing the right of the grantee to a precarious position. It is difficult to understand the precise nature of the customary right which the grantee acquired by virtue of such grants if such right could be extinguished at the will of the succeeding Ruler.
In any case, in the absence o any evidence about the nature and extent of the grant made to the Ranees by the father and grand-father of the Ruler of Dhenkanal no court could hold, merely on the basis of the evidence of P. W. 1 that the custom pleaded in the plaint has been established. The finding o the lower Court on this point must therefore be confirmed.
12. Mr. Misra urged that there was no necessity for the respondent to prove this custom in view of the unambiguous admission in paragraph 7 of the written statement of the appellant about the existence of such a customary right. This paragraph has been already quoted. The only admission made by the State of Orissa regarding the existence of a custom is that the Ruler may make one such grant in favour of his wife, as befitting her position and status, having regard to the financial condition of the State, but there was no custom of making one grant after another of such large areas of land.
Even if the plaintiffs reliance on the custom as admitted in paragraph 7 of the written statement be held to be correct, that custom has been recognised by the continuance of the earlier grant of 1935 which was not interfered with by the State of Orissa after merger. The Ruler (P. W. 1) has not stated that he found the income from tlie first grant to be so low as to necessitate the making of the second grant in favour of the respondent.
On the contrary, by giving no evidence about the extent of the grant made by his father and grandfather in favour of his mother and grandmother he has practically closed any investigation as to whether the income from the earlier grant was sufficient for the status of the Ranee of Dhenkanal. It should be remembered, moreover, that this grant was not made for the maintenance of the Ranee, but was given merely by way of pocket allowance.
The Ruler admitted that in his Civil List Rules there was provision for pocket money for the members of the Ruler's family and that the Ranee Sahibawas always entitled to live in the Palace with the Ruler and enjoy all the amenities provided (in the said Rules) for the Ruler's family. Hence, it is unnecessary to investigate whether the net income from the first grant was sufficient for the proper maintenance of the Ranee Sahiba.
The income was meant only by way of additional pocket money and for that purpose, I have already shown, that the extent of lands in the Khas possession of the Ranee, the lands in possession of her tenants and the remaining lands must be considered adequate. It is, therefore, difficult to understand why an additional grant of thirteen villages should have been made to her in 1939 -- within four years after the earlier grant.
The plaintiff's husband has also not cared to explain why two such grants were necessary. I must, therefore, hold that even if the plaintiff's case based on the so-called admission in paragraph 7 of the written statement about the existence of custom be accepted, that custom must be held to have been recognised by the new sovereign when he continued tlie earlier grant made in 1935.
13. In pursuance of Article 4 of the Merger Agreement between the Ruler and the Dominion Government, the Government of India made elaborate enquiries with a view to find out the personal privileges of the Ruler and the members of his family and their commitments. They also gave a definite assurance to the Ruler under para 28 of the Memo on personal privilege of Ruler that any previous commitments made by him will be honoured if they were found to be bona fide and reasonable.
An enquiry in this respect must necessarily take time and could not obviously be completed on the very date on which the change of sovereignty took place. Ultimately, in May 1949 the Government of India informed the plaintiff, of their inability to recognise the impugned grant as in their opinion it was not reasonable or bona fide. In my opinion this decision of the Government is an act of State which is not justiciable in Municipal Courts.
In substance, it is nothing else but the implementing of the assurance given in Article 4 of the Merger Agreement regarding the recognition of the personal privileges of the Ranee of Dhenkanal which must be left to the high contracting parties. As pointed out by Lord Dunedin in AIR 1924 PC 216 (at p. 217):
'Even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that docs not give a title to those inhabitants to enforce this stipulation in the Municipal Courts. The right to enforce remains only with the High Contracting parties.'
Article 363 (1) of the Constitution bars the jurisdiction of the Courts to decide any disputes arising out of any provision of the said Agreement.
14. I will now deal with an ingenious argument put forward by Mr. Misra regarding what he termed the 'recognition' of the impugned grant by the State of Orissa soon after merger. I have already shown that the order of the Ruler mutating the name of the respondent in respect of the villages covered by the impugned grant, was passed on the20th December 1947, i.e. after he signed the merger agreement but prior to the date of actual merger (1st January 1948).
His order was given effect to on the 4th January 1948 after the State of Orissa had taken over the Government of Dhenkanal. It appears from the evidence of P. Ws. 2 and 3 (who are Sarbarakars of some of the villages covered by the impugned grant) that the plaintiff actually took possession of the villages and remained in such possession during the whole of 1948 and also collected rent from her tenants.
Mr. Misra urged that the conduct of the State of Orissa in thus allowing the plaintiff to take actual possession of these villages after the 1st January 1948 and to collect rent from the tenants for more than 15 months thereafter, would, in law, amount to implied recognition of that grant by the new sovereign. According to him, therefore, though the act of recognition by the new sovereign was undoubtedly an act of State, nevertheless having once recognised the right, the new sovereign cannot later on extinguish the same except by proceeding according to the law of the land and the act of annulment would be justiciable in the municipal courts.
But this main question for consideration is whether there was in law a recognition of the impugned grant by the new sovereign after the 1st January 1948. Merc inaction on the part of the new sovereign in not interfering with the possession of villages by the plaintiff during 1948 while an enquiry as to whether the previous commitments of the Ruler were bona fide and reasonable was still going on, would not, in my opinion, amount to 'recognition' as understood in law.
The plaintiff also was never given any false hopes. On the other hand, in the Memorandum of Privileges (Ext. K/1) it was made absolutely clear as early as 17th September 1948 that enquiries would be made with regard to the bona fides of the premerger commitments of the Ruler. The plaintiff was thus fully aware that the matter was under enquiry and that possession during the pendency of the enquiry would give her no legal rights against the new sovereign.
I may point out in this connection that in AIR 1941 PC 64 though the cession of territory to the new sovereign took place on the 14th May 1903 and the new sovereign's order refusing to recognise preexisting rights of a subject was issued four years later, on 1st April 1908, after due enquiry by the Settlement authorities, it was held that the Act of the British Government in not recognising the title of the plaintiff to the suit land was an act of State for which he could have no recourse against Government in Municipal Courts'.
Similarly, in AIR 1924 PC 216 though the cession took place in 1860 and the decision of the new Government refusing to recognise the pre-cession right of the plaintiff was conveyed on the 13th December 1902, the Municipal Courts were held to have had no jurisdiction to examine the validity of the refusal to recognise pre-cession rights.
15. Some argument was advanced on the question as to whether the impugned grant became effective on the date of the grant itself, namely the14th May 1939 or else whether, on account of the Revenue authorities' refusal to mutate .the name of the plaintiff and the subsequent intervention of the Political Agent, the grant remained ineffective until (after the lapse of Paramountcy) the new Ruler, by his order dated the 20th December 1947, sanctioned mutation. In my opinion, this question is somewhat academic in tile present litigation.
Whether the grant was complete so far as the rights of the plaintiff were concerned on the date on which it was made, or else whether it became effective only on the 20th December 1947 when the Ruler sanctioned mutation, the admitted position is that it was a grant made by the Ruler when he had full sovereign powers over Dhenkanal State. It was open to the succeeding sovereign either to recognise the grant or to refuse to recognise the same, bearing in mind the assurance given in Article 4 of the Merger Agreement dealing with the personal privileges of the Ruler and the members of his family including the Rani.
16. I may now notice an argument raised by the Advocate-General. Relying on some observations in AIR 1959 SC 1383 State of Saurashtra v. Memon Haji Ismail, he contended that the process of acquisition of Dhenkanal and other Orissa States was not completed on the 1st January 1948 but continued until those States became a part of the Province of Orissa by the State Merger (Governor's Provinces) Order made by the Governor General under Section 290A of the Government of India Act 1935 on the 27th July 1949.
According to him from the 1st January, 1948 till the 27th July, 1949 the inhabitants of Dhenkanal State did not become subjects of the new sovereign and consequently any order passed by the new sovereign during that period in respect of them would be an 'act cf State.' In my opinion the learned Advocate General's reliance on AIR 1959 SC 1383 is not justified. There the facts were peculiar. The Ruler of Junagarh left the State on November 1947 for Pakistan thereby bringing about a complete breakdown of administration which resulted in chaotic conditions in that State.
The Government of India took over the administration of that State at the request of the Nawab's Council and with the approval of the people of Junagadh. In December 1948, the elected representatives of the people of Junagarh resolved that the administration of that State should be handed over to the Government of Saurashtra and the Saurashtra Government accordingly took over the administration in January 1949.
Their Lordships of the Supreme Court held that during the period from November 1947 to January 1949 there was no formal annexation of that State by the Dominion Government though the administration was being carried on by the latter Government, and that during that period the people of Junagadh did not become the subject of a new sovereign. Consequently, an order of annulment of the vpre-cession right made during the said period was held to be an 'act of State'.
Here, howevers there was a complete cession of sovereignty by the Merger Agreement by the Ruler of Dhenkanal in December 1947. The cession took effect from the 1st January 1948. At the date ofcession the Ruler had full sovereign powers to transfer sovereignty to the new Government (Dominion Government) who also had full authority to acquire new territories by cession. This was recognised in Sub-section (3) of Section 3 of the Indian Independence Act, 1947.
Thus on the 1st January 1948 the transfer of sovereignty was complete and the inhabitants of Dhenkanal became subjects of the new sovereign. It is true that under the provisions of the Government of India Act, 1935, as is- stood then, the Orissa Legislature had no jurisdiction to legislate in respect of such merged territories inasmuch as they did not form part of the Province of Orissa and the territories were administered by the Dominion Government under the provisions of the Extra Provincial Jurisdiction Act and the orders issued thereunder.
Complete merger for legislative purposes undoubtedly took place only after Sections 290-A and 290B were inserted in the Government of India Act and after the issue of the States' Merger (Governors Provinces) Order on the 27th July 1949. But the Advocate-General could cite no authority for the proposition that the residents o Dhenkanal did not become subjects of the Dominion Government until the Orissa Legislature acquired jurisdiction to pass laws in respect o them.
In the case of Junagadh, as the Ruler did not formally cede his territory, the transfer became complete only when the elected representatives of the people of Junagadh decided to hand over the State to the Dominion Government and the Saurashtra Government took over the Administration in January 1949. The facts of the instant case are therefore clearly distinguishable. In this connection I may quote the following observations in AIR 1958 SC 816 (at p. 823):
'That is an act of State pure and simple, andthat it is its character until the process of acquisition is completed by 'conquest or cession'. Now thestatus of the residents of the territories which arethus acquired is that until the acquisition is completed 'as aforesaid,' they are the subjects of the ex-sovereign of all those territories, and therefore theybecame the subjects of the new sovereign''.
The words underlined (here in ' ')clearly show that where change of sovereigntytakes place by cession (as distinct from conquest) the acquisition is complete as soonas the cession is completed. This was what happened in the instant case on the 1st January, 1948.
17. In the result, therefore, the appeal is allowed, the judgment and decree of the lower court are set aside and the plaintiff's suit is dismissed with costs throughout.
R.K. Das, J.
18. I agree.