R.R. Yadav, J.
1. This appeal is directed against the judgment and decree dated 3.8.96 passed by the learned Additional District Judge No. 2, Jodhpur, affirming the judgment and decree passed by learned Civil Judge (Jr. Division) and Judicial Magistrate, First Class, Jodhpur city.
2. The instant appeal arises out from the following circumstances.
3. The land lord-plaintiff-respondent filed a suit for eviction and arrears of rent before the learned trial court on the ground inter alia that the tenant-defendant-appellant has committed default in payment of rent, changed residential accommodation into a commercial accommodation, broken the terms of the tenancy by using the disputed premises for his business activities and built his own suitable residential house where he is residing with his family members.
4. It is averred in the plaint that the tenant-defendant-appellant is using the disputed premises exclusively for business purpose whereas he was admitted to the tenancy of the said premises only for residential purpose.
5. The defendant contested the suit by filing written statement. It was stated that initially the suit premises was taken on rent of Rs.20 per month. The plaintiff got the rent increased by exerting undue pressure. The defendant took the premises on rent for business-cum-residential purpose from the beginning and since then he is continuously doing business in his wife's name. The plaintiff fully and personally knew about the said fact. He never raised any objection regarding the use of the premises for business purpose at any time at least since 1972, he therefore fully acquiesed with the said fact and thus lost his right if any to file a suit for eviction on said purported cause of action.
6. It is further averred in the written statement that the suit premises was partly being used as a residence even today and in the new built house situated at New Power House Road, the defendant's sons are residing. It is also averred that the defendant did not commit any default in payment of rent but when the land lord-plaintiff-respondent refused to accept payment of rent the same was deposited in court under Section 19(A) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as Act No. 17 of 1950).
7. The plaintiff filed replication stating therein that, in the suit-premises putting up the sign-board of Rajasthan Advertising Services by tenant-defendant-appellant is of recent origin. It is reiterated in replication that suit premises was rented out to the tenant-defendant-appellant only for residential purpose and his act of change of its user is inconsistent with the purpose for which he was admitted to the tenancy in the premises in question.
8. On the basis of pleading of the parties as many as seven issues were framed by the learned trial court and both the parties were allowed to adduce evidence is support of their respective claims.
9. After analytical discussion of the oral and documentary evidence on record the learned trial court decreed the suit on 25.1.96.
10. Feeling aggrieved against the judgment and decree passed by learned trial court, the tenant-defendant-appellant filed appeal before the first appellate court which too was dismissed on 3.8.96 as stated above.
11. Aggrieved again against the judgment and decree passed by learned first appellate court, instant second appeal has been filed by the tenant-defendant-appellant.
12. I have heard the learned Counsel for the parties and perused the judgments given by both the courts below. I have been taken through the oral and documentary evidence adduced in the case with the assistance of learned Counsel for the parties.
13. A close scrutiny of the judgments given by courts below reveal that both the courts below after analytical discussion of oral and documentary evidence on record have recorded a positive finding to the effect that the tenant-defendant-appellant has committed default in payment of rent and his deposits of rent under Section 19(A) of Act No. 17 of 1950 in court are not valid deposits. The courts below have extended benefit of first default in payment of rent to the tenant-defendant-appellant within the meaning of Sub-section (6) of Section 13 of Act No. 17 of 1950 as arrears of rent provisionally determined by the learned trial court under Sub-section (3) of Section 13 of the aforesaid Act was deposited by him as contemplated under Sub-section (4) of Section 13 of the said Act.
14. Both the courts below have further recorded concurrent findings of fact to the effect that under the rent-note Ex.14, the premises in dispute was let out to the tenant-defendant-appellant only for residential purpose and not for commercial purpose therefore the tenant-defendant-appellant, was found guilty of change of user of the premises in question from residential purpose to commercial purpose in his wife's name.
15. It is further held by courts below that tenant-defendant-appellant has built his own suitable residential house at New Power House Road where he is residing with his family members. It is also held that aforesaid residential house built by tenant- defendant-appellant is suitable for his residential house and as such he is liable to be evicted as envisaged under Clause (i) of Sub-section (1) of Section 13 of Act No. 17 of 1950.
16. In the backdrop of the aforesaid concurrent findings of fact recorded by both the courts below now I would like to deal with the contentions posers sprining from the competing submissions made at the Bar.
17. At the first instance it is argued by Mr. Rajendra Mehta, learned Counsel for the appellant, that mere change of user of the tenanted premises by the tenant-defendant-appellant for running advertising service business in his wife's name does not fall within the ambit of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950. According to him the aforesaid clause envisages any act which is inconsistent with the purpose for which tenant-defendant-appellant was admitted to the tenancy of the premises in question. In support of his aforesaid contention he invited my attention towards the rent-note Ex. 14.
18. In the light of rent-note Ex.14 it is argued by Shri Rajendra Mehta that the document Ex. 14 does not mention the purpose for which the premises in question was initially let out to the tenant-defendant appellant. According to Shri Mehta, Ex.14 does not disclose that the purpose of letting was only residential and not otherwise. The expressions 'Main Khud Rahunga' used under Ex. 14 followed by the words 'Dusaro ko kisi ko nahi deuonga, na mee sath mee dusaro ko rakhunga are clearly meant that the tenant agreed not to sub-let the premises or part with his possession or induct third party but he agreed that he would reside himself in the premises. Thus the rent note Ex. 14 did not put any restriction on use of the premises in question for commercial purpose. Shri Mehta contended that there is neither any positive nor any negative covenant in this regard in the rent note Ex.14 therefore no case for eviction is made out in the present case within the meaning of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950.
19. Learned Counsel Mr. M.L. Changani, appearing on behalf of land lord-plaintiff-respondent refuting the aforesaid contention streneously urged with equal force that rent-note Ex.14 has been properly construed by courts below. It is further urged that the tenant defendant-appellant himself has admitted his signature on the rent-note Ex.14. According to learned Counsel for the land lord-plaintiff-respondent the positive finding recorded by courts below that the premises in dispute was rented out to the tenant-defendant appellant only for residential purpose is concluded by concurrent finding of fact and as such it is binding in second appeal.
20. I have given my thoughtful consideration to the rival contentions raised at the Bar on the aforesaid point.
21. In my considered opinion, in the present case, it is established from evidence on record and both the courts below also after analytical discussion of the oral and documentary evidence on record have rightly arrived at concurrent findings of fact that premises in question initially under rent note Ex.14 was let out to the tenant-defendant-appellant only for residential purpose who has stalled advertising service business in his wife's name subsequently. The aforesaid concurrent findings of fact recorded by both the courts below are eminently just and proper and as such not assailable in second appeal.
22. It is to be noticed in this regard that courts below have also recorded concurrent findings of fact that the tenant-defendant-appellant has built his own suitable residential house at New Power House Road where he is residing with his family members. The aforesaid concurrent findings of fact recorded by both the courts below have reasonable nexus for passing a decree of eviction against the tenant-defendant appellant as envisaged under Clause (i) Sub-section (1) of Section 13 of Act No. 17 of 1950.
23. I am of the view that the aforesaid ground under Clause (i) of Sub-section (1) of Section 13 of Act No. 17 of 1950 it self is sufficient to sustain the decree of eviction under appeal passed against tenant-defendant- appellant by both the courts below. It is to be noticed that a decree of eviction can be passed against a tenant on any one of the grounds enumerated under Clause (a) to Clause (1) of Act No. 17 of 1950. Before passing a decree of eviction against a tenant the courts are to be objectively satisfied with only one ground out of several grounds enumerated under the aforesaid non obstante Section 13 of Act No. 17 of 1950.
24. In my considered opinion Act No. 17 of 1950 regulates the incidence of agreement of tenancy entered into between the parties vide rent note Ex.14 and inter se rights and obligation of tenant-defendant-appellant and land lord-plaintiff-respondent. As held earlier vide Ex. 14 the premises in dispute was let out to the tenant-defendant-appellant only for residential purpose and now it is borne out from the concurrent findings of fact that the tenant-defendant-appellant has built his own suitable residential house where he is residing with his family members. Thus decree of eviction under appeal passed by both the courts below under Clause (i) of Sub-section (1) of Section 13 of Act No. 17 of 1950 is eminently just and proper.
25. The second limb of argument of the learned Counsel for the parties which falls for determination would be whether change of user from residential purpose to commercial purpose is an act inconsistent with the purpose for which tenant-defendant appellant was admitted to the tenancy of the premises in question within the meaning of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950. The aforesaid ground of eviction under Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 would be an additional ground for passing a decree of eviction against tenant defendant-appellant whereas one ground enumerated under the aforesaid Section which has been discussed in preceding paragraph of this judgment is sufficient to sustain the decree under appeal.
26. A deeper understanding of the rent-note Ex. 14 reveals that the disputed premises was rented out to the tenant-defendant-appellant only for residential purpose therefore I am of the view that by necessary implication according to the terms and conditions of rent-note Ex. 14 it shall be deemed that the tenant defendant-appellant was prohibited from using the suit premises for any other purpose except for residential purpose. It is not the case of the tenant-defendant appellant that doing the advertising service business in his wife's name over the disputed premises is a part of residential purpose, The claim of the tenant defendant-appellant to the effect that the premises in question was let out to him for residential-cum commercial purpose has rightly been disbelieved by both the courts below after giving cogent and convincing reasons in support of it with which I am at one.
27. From the aforesaid discussion I am of the view that the act of the tenant-defendant-appellant starting advertising service business in his wife's name in disputed premises is clearly an act inconsistent with the purpose for which he was admitted to the tenancy within the terms and conditions of rent note Ex.14 which admittedly bears his signature. In the present case on hand I have no hesitation in holding that the act of change of user from residential purpose to commercial purpose by tenant-defendant-appellant definitely is an act inconsistent with the purpose for which he was admitted to the tenancy of the premises in question within the meaning of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 and 'an argument contrary to it is devoid of merit hence it is hereby repelled.
28. It is next contended by the learned Counsel for the appellant that assuming for arguments sake that initially the premises in question was let out to the tenant-defendant-appellant for residential purpose under rent note-Ex. 14 and subsequently its user was changed by him but the land-lord-plaintiff-respondent did not raise any objection for number of years hence his present suit for eviction is barred by acquiescence and estoppel.
29. In support of his aforesaid contention learned Counsel for the tenant-defendant-appellant placed reliance on the decisions rendered by the Apex Court in cases of Dr. Gopal Dass Verma v. Dr. S.K. Bhardwaj reported in : [1962]2SCR678 , S. Kartar Singh v. Chaman Lal and others reported in : [1970]1SCR9 , D.C. Oswal v. V.K. Subbiah and Ors. reported in : AIR1992SC184 and Smt A.N. Kapoor v. Smt. Puspha Talwar reported in : [1992]1SCR472 .
30. The learned Counsel for the land lord-plaintiff while refuting the aforesaid argument, urged before me that principle of acquiescence, waiver or estoppel do not debar land lord from seeking a decree of eviction on the ground enumerated under Clause (d) of sub-section. (1) of Section 13 of Act No. 17 of 1950. It is streneuously urged by Shri Chhangani learned Counsel for the land lord-plaintiff-respondent that once it is established by a land lord that tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the premises in question then he is liable to be evicted.
31. In support of his aforesaid contention he placed reliance on decisions rendered by the Supreme Court in cases of Shrinauos Kasherlal Palod and Ors. v. Vithal Shivagir Gosavi and Ors. reported in 1994 Supp. (2) SCC 212, Keshav .Kumar Swamp v. Flowmore Private Ltd. reported in : [1994]1SCR148 , Dashrath Baburao Sangale and Ors. v. Kashimath Bhaskar Data reported in 1994 Supp. (1) SCC 504, Bishamber Doss Kohli (Dead) by Lrs. v. Smt Satya Bhalla reported in : [1993]1SCR171 and K. Ramdas Shenoy v. The Chief Officers, Town Municipal Council, Udipi and Ors. reported in : [1975]1SCR680 .
32. For effective determination of the question argued by the learned Counsel for the parties with reference to decisions cited by them in support of their respective submissions it would be expedient to culled out the ratio decidendi of the aforesaid cases cited at the Bar which are relevant on the point canvassed before me.
33. In case of Dr. Gopal Doss Verma (supra) interpretation of Section 13 (1) (e) and Section 13 (1) (h) of the Delhi and Ajmer Rent Control Act, 1952 came up for consideration before the Apex Court wherein in Paragraph 9 it was Ruled that it would be unreasonable to hold that the tenancy which was created or used both for residential and professional purpose can be successfully terminated merely by showing that the tenant has acquired a suitable residence.
34. In case of Dr. Gopal Doss Verma (supra) the aforesaid ratio decidendi was laid down by the Supreme Court after approving the concurrent findings of fact recorded by appellate court as well as by Punjab High Court in revision. In Paragraph 7 of the judgment it was observed that it has been found by the appellate court and the High Court that right from the commencement of the tenancy a substantial part of the premises was used by tenant-respondent No. 1 for his professional purpose and they have also found that this has been done obviously with the consent of the land lord.
35. The facts of the case of Dr. Gopal Doss Verma (supra) are distinguishable to the facts involved in the present case. In the present case the tenant defendant-appellant miserably failed to allege and prove the change of user from residential purpose to commercial purpose with the consent of the land lord. Secondly in the case of Dr. Gopal Doss (supra) there was concurrent findings of fact recorded by appellate court and High Court that the premises was used for composite purposes residential as well as professional both from the commencement of the tenancy therefore new building built by tenant in the aforesaid case only for residence was not found to be sufficient for obtaining a decree for eviction whereas in the present case both the courts below have recorded positive concurrent findings of fact that the suit premises was let out to the tenant-defendant-appellant only for residential purpose. Both the courts below in the present case have concurrently held that the tenant-defendant-appellant has built his own residential house at New Power House Road where he is residing with his family members. I am of the view that in view of the aforesaid concurrent findings of fact recorded by learned trial court and first appellate court which are based on cogent and convincing reasons the courts below have not committed any error of law or procedure in granting decree of eviction against tenant-defendant-appellant.
36. In case of S. Kartar Singh (supra) the Apex Court while interpreting old Section 131(1) (h) corresponding to new Section 14(1)(h) of Delhi Rent Control Act held that where the premises had been let out to the predecessor in interest of the tenants not for residential purpose alone but also for business or professional purpose no eviction could be ordered under the aforesaid provisions merely by showing that the tenant had built a large residential house. The Apex Court further held in case of S. Kartar Singh (supra) that Section 14 (1) (h) of the Delhi Rent Control Act would apply only where a tenant was in occupation of a premises which was let out to him for residential purpose. To my mind the ratio of case of S. Kartar Singh (supra) can be oppositely applied in favour of passing of a decree for eviction against tenant defendant-appellant to whom premises in question was let out only for residential purpose under rent note Ex. 14 and obviously he had built his own suitable house at New Power House Road where he is residing with his family members.
37. It is to be noticed that aforesaid ratio was laid down in case of S.Kartar Singh (supra) by the Apex Court in the backdrop of concurrent findings of fact of the courts below which reads thus:
Coming to the question whether the suit premises were taken by the late Labha Mal Arora for residence only or for residence as well as for use as office for carrying on his professional work of a legal practioner, it may be observed that the concurrent finding of the court below is that the premises had been taken for residential cum-business or professional purposes. That finding being one of fact must be accepted as final.
38. I am of the view that on the basis of decision rendered by the Apex Court in case of S. Kartar Singh (supra) the concurrent findings of fact in the present case recorded by both the courts below to the effect, that the premises in question was rented out to the tenant-defendant-appellant only for residential purpose and he had built his own house at New Power House Road the decree for eviction passed against him under Clause (i) of Sub-section (1) of Section 13 of Act No. 17 of 1950 is eminently just and proper. The aforesaid finding being one of fact deserves to be accepted in second appeal.
39. In order to avoid repeatition and to maintain brivity suffice it to say that ratio of the rest of decisions cited by the learned Counsel for the tenant defendant-appellant Shri Mehta are not applicable to the facts of the case on hand for the same reasons as stated above.
40. Now, I would like to consider the relevant decisions cited by the learned Counsel for the land lord-plaintiff-respondent in support of his submission that the principle of acquiescence, waiver or estoppel do not debar a land lord from seeking a decree for eviction on the ground enumerated under Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 provided it is established by the land lord that tenant has done any act which is inconsistent with the purpose for which he was admitted to the tenancy of the disputed premises.
41. In case of Shrinavas Kasherlal Palod (supra) the land lord filed a regular suit for eviction on certain grounds including the ground of change of user. An objection was taken before the trial court that the Bombay Rent Act, 1947 is attracted and the civil Court had no jurisdiction to try the suit. Trial Court tried the suit and dismissed it on the ground of lack of jurisdiction. The appellate court agreed with the trial court that the provisions of Bombay Rent Act, 1947 were attracted but held that plaintiff has come out with a specific case and the defendants claimed that suit ought to have been filed in the rent court. According to appellate court once the suit was filed in regular court and the same court has jurisdiction to try the suit under the Bombay Rent Act 1947 also then trial court can proceed to decide the suit as if one filed under Bombay Rent Act. After taking the aforesaid view the appellate court proceeded to decide whether the suit for eviction could be decreed on the ground of change of user of premises in question. It was streneously contended before the appellate court on behalf of tenant-defendant-appellant that the land lord was aware of the change of user for number of years and he received the rent inspite of being aware of change of user therefore the principle of acquiescence would debar him to obtain a decree for eviction on the ground of change of user. The appellate court rejected the aforesaid plea holding that in a suit under the Bombay Rent Act mere acquiescence would not debar the land lord from seeking a decree for eviction. The aforesaid view was taken by appellate court after placing reliance on a decision rendered by Bombay High Court in case of Kasturchand Panachand Doshi v. Yeshwat Vinayak Sainkar reported in AIR 1980 Bom. 270. The appellate court held that plea of acquiescence did not save the tenant from the decree of eviction if he had used the premises for the purpose other than for which it was originally rented out to him. On the aforesaid finding appellate court decreed the suit for eviction on the ground of change of user under the Bombay Rent Act 1947.
42. In case of Shrinavas Kasherlal Polod (supra) the Supreme Court while interpreting Section 13 (1) (a) of Bombay Rent Hotel and Lodging House Rates Control Act, 1947 which is couched almost in the pari materia language of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 held that a long user of the premises for the purpose other than the one for which it was originally let out cannot bar a suit for eviction on the ground of change of user. However looking into a very long period about 47 years of the change of user by tenant he was allowed 3 years time for vacating the premises.
43. In case of Keshav Kumar Swamp (supra) the land lord filed an application under Section 14(1)(e) of Delhi Rent Control Act, 1958 before Rent Controller seeking eviction of the tenant from the premises in question on the ground of bonafide requirement. The tenant (company) opposed the suit of eviction on the ground that the premises are let out both for residential and for commercial purpose and the composite purpose of the tenancy took the premises out of the perview of residential accommodation. The other ground on which the application was opposed was that the claim of the land lord that the premises were required for his own occupation was not a bonafide one. The controller rejected both the pleas of the tenant and passed an order for eviction. The tenant filed a revision before Delhi High Court and reiterated both the grounds. The High Court while affirming the findings recorded by the controller about the bonafide requirement of the land lord set aside the finding of the controller that the premises was let out for residential purpose only.
44. In case of Keshav Kumar Swamp (supra) the interpretion of lease deed entered into between land lord and tenant given by Delhi High Court was not accepted by the Apex Court for the reason that if the land lord was to permit the tenant to use the premises for only a specific purpose any other purpose other than it was let out to him the whole exercise of prescribing the purpose and subscribing the category of person who would use it in the lease deed would become futile. On the aforesaid analogy the Supreme Court allowed the appeal, set aside the order of Delhi High Court and restore that of Controller.
45. In case of Dashrath Baburao Sangale (supra) Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 came up for consideration before the Supreme Court and it was held that if the tenant had committed any act contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, he rendered himself liable for eviction. According to the Apex Court clause ) of Section 108 of the aforesaid Act inter alia provides that the lessee must not use or permit another to use, the property for a purpose other than that for which it was leased. The findings of the trial court and the appellate court were that the tenant had been using the premises for a purpose other than the one for which he had taken the said premises on lease.
46. In case of Dashrath Baburao Sangale (supra) the plea of acquiescence was rejected by the Apex Court and concurrent findings of fact recorded by trial court, appellate court and of Bombay High Court in writ jurisdiction were upheld and SLP was dismissed.
47. In case of Bishamber Doss Kohli (supra) it was held by the Supreme Court that change in user must be a change in character of the user for which alone building had been let out. It was also held that use of the building for a purpose other than that for which it was leased, without the written consent of the land lord is a ground for eviction. The object clearly is that the parties must remain bound by the terms of agreement of tenancy on which the building was let out, including the condition relating to its use for the purpose for which it was leased. In other words, breach of the covenant regarding the kind of user of the building let out to a tenant is a ground of eviction as held by the Apex Court. This judgment is rendered by Hon'ble Three Judges of the Supreme Court while the other decisions cited at the Bar on the subject have been rendered by Hon'ble two Judges except Dr. Gopal Doss Verma (supra) facts of which case are distinguishable from the facts of the present case.
48. In case of K. Ramdas Shenoy (supra) the Apex Court held that an excess of statutory power cannot be validated by acquiescence in or by the operation of an estoppel. In the aforesaid case the Apex Court declined to interfere for the assistance of those persons who sought its aid to relieve them against express statutory provisions. The order of the High Court in case of K. Ramdas Shenoy (supra) was set aside and the SLP was allowed by Apex Court.
49. It is easily deducible from the aforesaid discussions that in all cases of Rent Control Acts which are special acts mere acquiescence, implied consent, waiver or estoppel would not entitle the court to pass an order which is not in keeping with the provisions of Rent Control Act unless it is alleged and proved by a tenant that the land lord had given a written consent for change of user inconsistent with the purpose for which he was admitted to the tenancy of the premises in question originally by bilateral agreement of the tenancy commonly known as rent note. A bilateral agreement of tenancy in writing between land lord and tenant specifying the purpose for which tenant was admitted to the tenancy originally cannot be allowed to be impeached by a tenant with impunity by pleading acquiescence, waiver, implied consent and estoppel giving a chance to an unscrupulous tenant to allege and prove white to black and black to white. Change of user inconsistent with the purpose for which a tenant was initially admitted to tenancy in writing of the premises in dispute can be permitted to be changed only on written consent of the land lord and an argument contrary to it is not acceptable.
50. In the present case both the courts below have recorded concurrent finding of fact that premises in question was let out to the tenant-defendant appellant only for residential purpose under rent note Ex.14. The tenant defendant-appellant miserably failed to allege and prove in the case on hand that he obtained a written consent of land lord-plaintiff-respondent for purpose of change of user from residential purpose to commercial purpose. From rent note Ex. 14 and attending circumstances of the present case it is not possible to infer that the land lord-plaintiff-respondent was acquiressingly satisfied for change of user by tenant-defendant-appellant from residential purpose to commercial purpose.
51. It is not possible for me to agree with the argument of Shri Rajendra Mehta, learned Counsel for the appellant that unless the change of purpose of the user is destructive or permanently injurious to the lease property it would not attract the provisions of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 for obtaining a decree for eviction. Suffice it to say in this regard that this Court cannot afford to alter the phraseology of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 with which it is woven by State Legislature. I am of the view that acceptance of the aforesaid argument of Shri Mehta would tantamount naked usurption of legislative function under the disguise of interpretation of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950 which is impermissible. It is held that mere change of user of the purpose by a tenant inconsistent with the purpose for which he was admitted to the tenancy by a bilateral agreement of tenancy without written consent of the land lord is sufficient to obtain a decree for eviction against him within the meaning of Clause (d) of Sub-section (1) of Section 13 of Act No. 17 of 1950.
52. As a result of aforesaid discussion the instant appeal lacks merit and it is dismissed with costs. The judgments given by both the courts below and the decree under appeal is hereby affirmed.