Amba Prasad vs Abdul Noor Khan And Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeals Nos. 680-682 of 1963

Decision Date: 17 April 1964

Coram: M. Hidayatullah, N. Rajagopala Ayyangar

In the case titled Amba Prasad versus Abdul Noor Khan and others, the Supreme Court of India delivered its judgment on 17 April 1964. The opinion was authored by Justice M. Hidayatullah, and the bench was composed of Justices M. Hidayatullah, N. Rajagopala Ayyangar, and another Justice of the same seniority. The judgment is reported in 1965 AIR 54 and 1964 SCR (7) 800, with subsequent citations appearing in later reports such as R 1968 SC 466, F 1968 SC 1351, RF 1976 SC 1485, and several others. The dispute concerned the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, specifically section 20 and its Explanation II, which address suits for possession based on entries in the Khasra for the year 1356 Fasli, the effect of entries not corrected before the vesting date, and whether a plaintiff must prove actual possession.

According to the headnote, on 10 October 1953 the respondents filed suits under section 232 read with section 20 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 against the petitioner before the Sub‑Divisional Officer. Prior to the coming into force of the abolition statute, the petitioner, Amba Prasad, held the title of zamindar over the land in question. The respondents’ names appeared in column 23 (miscellaneous) of the Khasra for the year 1356 Fasli, indicating they were recorded as persons in possession of the disputed land. The respondents asserted adhivasi rights under section 20, relying on their recording as occupants in the 1356 Fasli Khasra. Their common contentions were that (i) they were in possession of the suit land, (ii) they had been dispossessed by the petitioner after 30 June 1948, and (iii) because they were recorded occupants in 1356 F, they were not required to prove actual possession. The petitioner argued that the entry in the Khasra had been fraudulently made after 1 July 1949. The Sub‑Divisional Officer dismissed the suits. Upon appeal, the Additional Commissioner held that the respondents had acquired adhivasi rights. The petitioner then appealed to the Board of Revenue, which dismissed the appeal, leading the petitioner to file appeals before this Court.

The Court held, first, that under section 20 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act a person continues to be deemed an adhivasi after 1 July 1952 provided he was in possession at that date or had been evicted after 30 June 1948; a person evicted after that date is entitled to regain possession notwithstanding any contrary order or decree. Second, the Court explained that the phrase “recorded as occupants” in section 20 refers specifically to persons whose names are entered as occupants in the Khasra or Khatauni for the year 1356 Fasli covering the period from 1 July 1948 to 30 June 1949. Such persons do not include intermediaries. The term “occupant” must be understood as a person who actually holds the land in possession or enjoys it. Intermediate possession, except where the immediate possessor holds the land on behalf of the true occupant, is of no consequence to the determination of adhivasi status.

In this case the Court held that the appellant could not rely on the correctness of the entry in the Khasra because the entry had not been corrected before the vesting date of 1 July 1952, as mandated by Explanation (ii) to section 20 of the Abolition Act. The Court further explained that the title to possession as an adhivasi is determined solely by the entries recorded in the Khasra or Khatauni for the year 1356 Fasli. Section 20 of the Abolition Act does not require a party to prove actual possession of the land. Consequently, the provision eliminates any need to investigate disputed possession and instead accepts the record as it appears in the Khasra or Khatauni of 1356 Fasli, or any correction of that record made before 1 July 1952. The Court referred to several earlier decisions for support, including Upper Ganges Sugar Mills Ltd. v. Khalil‑ul‑Rehman, [1961] 1 S.C.R. 564; Lala Nanak Chand v. Board of Revenue, U.P., 1955 A.L.J. 408; Ram Dular Singh v. Babu Sukh Ram, 1963 A.L.J. 667; Bhal Singh v. Bhop and Anr., 1963 A.L.J. 288; and Sugriva v. Mukhi etc., 1963 A.L.J. 17 (Rev.).

The appeals numbered 680 to 682 of 1963 were filed by special leave against the judgment and decree dated 8 February 1960 of the Board of Revenue, U.P., which had disposed of petitions numbered 203 to 205 of 1958‑59. Counsel for the appellant appeared on behalf of Amba Prasad in all of the appeals, while counsel for the respondents represented respondents numbered 1 to 3 in each appeal. The judgment was delivered by Justice Hidayatullah. The order of the Board of Revenue, dated 8 February 1960, was common to the three appeals, and a separate appeal, Civil Appeal 681 of 1963, was also governed by the same decision, although it had been compromised. In each appeal the petitioner was Amba Prasad, who had been the zamindar of the village Rhonda in the Pargana and Tehsil of Khurja, District Bulandshahr, prior to the commencement of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. The opposing parties, referred to in the judgment as the answering respondents, were individuals whose names were recorded in column 23 (miscellaneous) of the Khasra for the year 1356 Fasli as persons in possession. They claimed, based on that entry, to be the recorded occupants of the disputed fields and to have acquired adhivasi rights in those fields under section 20 of the Abolition Act. Although the dispute concerned a relatively small area of land, the history of litigation concerning those plots was extensive and required detailed explanation to understand the arguments presented in the appeals. Amba Prasad had instituted two suits under section 180 of the Uttar Pradesh Tenancy Act, 1939, seeking ejectment and damages against Mohammad Ali and Mst. Sharifan, respectively, because their names were entered in the Khasra as tenants “bila tasfia lagan.” These suits were subsequently dismissed by the trial judge, and the appellant’s appeal to the Commissioner was also rejected on 30 November 1943. The appellant then appealed to the Board of Revenue, U.P., and succeeded; the Board’s order, dated 19 March 1949, awarded possession of the fields to Amba Prasad on 1 July 1949, the first day of the year 1357 Fasli. The related possession entries, known as dakhalnamas, listed specific field numbers in village Rhonda. After obtaining possession, the appellant was required to commence criminal proceedings under section 145 of the Criminal Procedure Code before the Sub‑Divisional …

In the earlier proceedings, the trial judge dismissed the suits filed by Amba Prasad and the appeal to the Commissioner was also rejected on 30 November 1943. Subsequently, Amba Prasad appealed to the Board of Revenue of Uttar Pradesh and obtained a successful order dated 19 March 1949 (recorded as item 25). By that time, Mohammad Ali had died and his estate was represented by one Faiyaz Ali together with six other persons, while Mst. Sharifan had likewise passed away and was represented by Abdul Sattar, also known as Chunna Khan, and two additional persons. Following the Board’s decision, possession of the disputed fields was granted to Amba Prasad on 1 July 1949, which corresponded to the first day of the year 1357 Fasli. The entry of possession, known as the dakhalnama, appears in the record as items 44 and 45; item 44 lists fields numbered 427/2, 428/2, 429, 430 and 380, while item 45 lists fields numbered 416, 418/1 and 418/2, all situated in the village of Rhonda, within the pargana and tehsil of Khurja, district of Bulandshahr. After taking possession, Amba Prasad was required to institute criminal proceedings under section 145 of the Criminal Procedure Code before the Sub‑Divisional Magistrate of Anupshahr against Faiyaz Ali, Abdul Sattar and the other respondents. Those proceedings concluded on 13 January 1951, terminating in Amba Prasad’s favour (item 28). The Sessions Judge of Bulandshahr subsequently made a reference to the Allahabad High Court, suggesting that the order should be set aside, but the High Court declined to interfere, issuing its order on 20 October 1951 (item 29). In parallel, Amba Prasad commenced a prosecution under section 218 of the Indian Penal Code against the village Lekhpal, alleging that the Lekhpal had entered false entries in the revenue records. The First‑Class Magistrate of Bulandshahr discharged the Lekhpal by order dated 24 July 1950 (item 26), and an application by Amba Prasad for revision of that order was dismissed by the Sessions Judge of Bulandshahr on 10 October 1950 (item 27). During the pendency of the criminal case under section 145, the disputed fields remained under attachment from 23 August 1949 (1358 Fasli) until 6 November 1951 (1359 Fasli). Thereafter, two suits were filed in the Munsif Court of Khurja seeking declarations that the crops growing on the attached fields belonged to the plaintiffs. One suit, numbered 97 of 1951, was filed by Abdul Noor Khan and other respondents, and the other suit, numbered 67 of 1952, was filed by Sarfraz Ali Beg together with eight others; the latter suit later became the subject of compromise in C. A. 682 of 1963. Both suits were directed against Amba Prasad, with the plaintiffs relying on entries in the remarks column of the Khasras for the relevant years to claim possession. The court rejected both suits, delivering judgments on 9 August 1952 and 8 August 1953 respectively (items 30 and 32). It also appears that proceedings under section 107 of the Criminal Procedure Code were instituted against Abdul Noor Khan and the other respondents before the First‑Class Magistrate of Bulandshahr, resulting in a binding over order to keep the peace.

In the record of this case, an order issued by the Sessions Judge of Bulandshahr dismissed the revision application filed by the respondents on 24 February 1953 (item 31). Subsequently, on 6 November 1951, the answering respondents together with Sarfraz Ali and others instituted three suits under section 61 read with section 183 of the Uttar Pradesh Tenancy Act, 1939, seeking a declaration of Sirdar rights and claiming hereditary rights under section 180/2 of the same Act. These suits were decided against Amba Prasad by the Judicial Officer of Anupshahr on 14 July 1953, who held that the Dakhaldehi dated 1 July 1949 did not affect the plaintiffs and, because the plaintiffs were shown to be in possession, they were entitled to succeed (item 33). Amba Prasad appealed this decree, and the Commissioner of the Meerut Division set aside the judgment by an order dated 1 April 1954 (item 35). The Uttar Pradesh Board of Revenue also dismissed the plaintiffs’ appeal on 17 September 1955 (item 38). On 10 October 1953, the answering respondents filed two suits in the two appeals and a third suit by the respondents in civil appeal No. 682 of 1963, which was later compromised. All three suits were filed under section 232/20 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, and the Court’s consideration in the present appeals was limited to these suits. In addition, two further suits under the same provision of the Abolition Act were filed by Ayub Ali Khan, Abdul Sattar Khan and others against Amba Prasad; the answering respondents and Sarfraz Ali and others were joined as defendants in those actions. The plaints in those two suits were dated 28 December 1954 and 20 December 1954 (items 36 and 38). Both suits were dismissed by the Sub‑Divisional Magistrate of Khurja on 16 May 1955. The Additional Commissioner of Meerut thereafter dismissed the appeals on 30 January 1950 for default of appearance (item 39). On 4 September 1958, the Sub‑Divisional Officer of Khurja dismissed the three suits filed by the answering respondents, as well as the respondents in the companion appeal. In those suits the answering respondents relied on extracts from the Khasras of the years 1355F, 1356F, 1357F, 1358F and 1359F to demonstrate their possession. However, those lands had been under attachment from 23 August 1949 (recorded as 1358F) to 6 November 1959 (recorded as 1359F) and therefore could not have been possessed by the answering respondents during the years 1358F and 1359F. The Commissioner of Meerut Division noted this fact in his order of 1 April 1954 and expressed doubt about the entries in the Khasras of 1355F and 1356F. The Sub‑Divisional Officer adopted the same reasoning, observing that entries made after 1355F would have been placed in column 6 of the Khasra rather than in the remarks column. Consequently, he held that the entries in 1355F and 1356F were unreliable and that the answering respondents had not acquired adhivasi rights. On further appeal, the Additional Commissioner of Meerut reversed that decision by an order dated 19 April 1959.

The Commissioner's order had dismissed the suits, and before him the answering respondents asserted that, as recorded in entry L / P (D) ISCI‑26(a), they were listed as occupants in the 1356 F record and therefore were not required to produce proof of actual possession. The counsel for Amba Prasad appeared to accept that proposition, but he limited his argument to the claim that the entries did not conform to paragraph 87 of the Land Records Manual and that, in earlier litigation, those entries had been treated as spurious. He further contended that the answering respondents were barred by the principle of res judicata because, although they had been parties to the suits filed by Ayub Ali Khan and Abdul Sattar, they had not asserted any adhivasi rights in those earlier suits. The learned Commissioner observed that the entries had indeed been suspected of being spurious by the Commissioner in his order dated 1 April 1954; however, that suspicion arose after 1 July 1952, which was the date of vesting, and consequently the matter fell outside the scope of Explanations 11 and III of section 20(b) of the Abolition Act. Accordingly, the Commissioner held that the entries could not be rejected because they must have been completed under the applicable rules before 30 April 1949, that is, before the Dakhaldehi, and he concluded that the answering respondents, who were appellants before him, had acquired adhivasi rights. Amba Prasad then appealed to the Board of Revenue, which dismissed his appeal by an order dated 8 February 1960, the order now being challenged. On this occasion the counsel for Amba Prasad conceded that the entry had indeed been made, but argued that it had been fraudulently entered after 1 July 1949 and referred to the prosecution of the Lekhpal. The Board of Revenue noted that no order for correction of the entry had been issued before the vesting date and that the Lekhpal had been acquitted of the charge under section 218 of the Indian Penal Code. Because the entries had not been corrected as mandated by Explanation 11 to section 20, the Board found that the conditions of section 20(b) of the Abolition Act were satisfied and therefore dismissed the appeal. Counsel for Amba Prasad, Mr Goyal, contended that the suits were barred by res judicata, asserting that in the earlier suits filed by Ayub Ali Khan and Abdul Sattar the answering respondents had been defendants who could have raised the defence of having acquired adhivasi rights, and that their failure to do so previously prevented them from raising it now. The Court rejected this contention, noting that the answering respondents had filed their own suits before the suits of Ayub Ali Khan and Abdul Sattar were filed. Moreover, the suits of Ayub Ali Khan and Abdul Sattar had not resulted in any substantive decision because they were dismissed on a technical defect in the plaint, and the subsequent appeal was dismissed for default of appearance. Finally, the answering respondents and Amba Prasad had been co‑defendants, and no issue between them had ever been tried or decided, even though such an issue might have been necessary. Mr Goyal further argued that the answering respondents must demonstrate actual possession.

The counsel argued that, under Explanation I to section 20, the respondents were required to have been evicted after 30 June 1948, a condition he said the respondents had not satisfied. He further sought to withdraw a concession previously made on behalf of Amba Prasad before the lower tribunals, which had held that the respondents need not prove actual possession. The counsel explained that the concession was granted because certain judgments of the Allahabad High Court were binding on the Revenue Tribunals, and he urged that those judgments be taken into account. He pressed that possession as of the year 1356 Fasli must be positively established by the respondents in this proceeding. Additionally, he asserted that entries in the Khasra and Khatauni registers could be regarded as valid only if they complied with sections 28 and 33 of the Uttar Pradesh Land Revenue Act. Relying on paragraph 87 of the Land Record Manual, he contended that the entries favoring the respondents were irregular and therefore unreliable. While these submissions appear numerous, they essentially reduce to two distinct questions: one concerning the regularity of the entries and another concerning the respondents’ right to claim adhivasi rights under section 20 of the Abolition Act even if the entries were correct. The Court indicated that it would carefully address each of these two questions separately in the course of its reasoning.

The Court then examined the first question regarding the regularity of the entries in the land records maintained before it. It was noted that the Revenue Tribunals had earlier expressed doubts about these entries in unrelated proceedings concerning the same land. Moreover, the Lekhpal had been prosecuted under section 218 of the Indian Penal Code, a fact the Court observed did not automatically render the entries spurious. The prosecution resulted in the Lekhpal’s discharge, and the Additional Commissioner subsequently held that a remark entered in the remarks column could not be taken as evidence of dishonest or collusive conduct. The Commissioner further explained that the entry in the remarks column preceded any criminal case filed by Shri Amba Prasad against the patwari, and therefore could not be dismissed solely on that basis. According to the Commissioner’s findings, the proprietors of the land were Sri Mohammad Ali and Srimati Sharifan, who had mortgaged their shares to the present respondents, and Shri Amba Prasad later purchased the equity of redemption and obtained a partition of the share. Subsequent litigation between Shri Amba Prasad and the aforementioned mortgagors continued up to the High Court, where suits filed under section 180 were decreed in the second appeal dated 19 March 1949. The decree was executed, and possession of the disputed land was delivered to the decree-holder on 1 July 1949. The Khasra for the year 1356 Fasli, prepared according to the applicable rules, may have been deposited before 31 July 1950, but the entries therein were required to be completed no later than 30 April 1949. Finally, the counsel relied again on paragraph 87 of the Land Records Manual, arguing that the names of occupants who held land without consent of the owners recorded in column five should have been entered in column six, which in the present case was found to be crossed out.

In this case the Court observed that when a tenant departs from his neighbourhood without appointing anyone to manage his holding and without providing the land‑holder a written notice of such an arrangement, the village accountant, known as the Lekhpal, is required to record the name of the actual cultivator in the remarks column, prefixed by the term “qabiz,” as prescribed in paragraph 85(c) of the manual. The entry that appears in the record for the year 1356 F follows this rule, and there is no material on the record that would allow the Court to conclude that the entry was made irregularly. If the entry had been erroneous, the petitioner, Amba Prasad, would have been obligated to obtain its correction, but the doubts raised concerning the entry do not amount to a correction as mandated by Explanation III to section 20 of the Abolition Act. Consequently, there is no dispute that the respondents who answered in the case were entered as “qabiz” in the 1356 F record. It is also undisputed that a person recorded as “qabiz” ceased to be in possession after the cut‑off date of 30 June 1948. The Court further noted that Amba Prasad’s possession could not have commenced before 1 July 1949, and there is no evidence that the respondents’ possession was disturbed at any time between the two dates, the attachment order having been issued much later.

The counsel for the respondents argued that the burden of proof lay with them to demonstrate that they enjoyed possession and were evicted after 30 June 1948 before they could claim rights as adhivasi under section 20. In contrast, counsel for the petitioner joined the issue and asserted that the respondents had satisfied the requirement simply by being listed as “occupants” in the 1356 F record. He maintained that it was unnecessary for them to prove actual possession, although he did not concede that the land was not in his clients’ possession. The Court reiterated that eviction could not have occurred before 1 July 1949, as the Dakhalnamas expressly show that possession was transferred to Amba Prasad on that date. Accordingly, the petitioner was not in possession prior to that date and the khasra for 1356 F confirms that the respondents were recorded as “qabiz,” meaning they were in possession at the relevant time.

The Court further observed that the suit was filed for possession and that the decree did not specify the exact date of dispossession, a requirement under rule 183. No objection to this omission was ever raised, and even if the date were relevant, it would serve only to calculate the limitation period, which, in the petitioner’s case, did not create any bar. Thus, the central issue was whether a person entered as “qabiz” but not identified as a tenant or sub‑tenant could invoke the benefits of section 20 of the Abolition Act and claim rights as an adhivasi. For the purpose of this discussion, the Court set out the essential portion of section 20, which provides that every person recorded as an occupant of land, other than certain exempt categories, may be deemed an adhivasi entitled to take or retain possession, subject to the Act’s provisions, and that an evicted person after 30 June 1948 shall be considered entitled to regain possession regardless of any prior order or decree.

The Court examined the provision relating to the khasra or khatauni of 1356F that had been prepared under sections 28 and 33 respectively of the Uttar Pradesh Land Revenue Act, 1901. The provision stated that a person who was recorded as an occupant of any land, other than grove land or land to which section 16 applied, in the relevant khasra or khatauni, or who, on the date immediately preceding the date of vesting, was entitled to regain possession of that land under clause (c) of subsection (1) of section 27 of the United Provinces Tenancy (Amendment) Act, 1947, could be called an adhivasi of the land and, subject to the provisions of the Act, would be entitled to take or retain possession thereof. Explanation I declared that if a person referred to in clause (b) was evicted from the land after 30 June 1948, that person would, notwithstanding any order or decree, be deemed entitled to regain possession of the land. Explanation II provided that if any entry in the records mentioned in clause (b) had been corrected before the date of vesting, in accordance with the Uttar Pradesh Land Revenue Act, 1901, the corrected entry would prevail for the purposes of that clause. Explanation III clarified that an entry would be regarded as corrected before the date of vesting if a competent court had issued an order or decree requiring correction before that date and the order had become final, even though the actual correction might not yet be reflected in the records. Explanation IV specified that, for the purposes of this section, the term “occupant” did not include a person who was an intermediary entitled to the land or any share of it in the year 1356 Fasli. The Court then outlined the overall scheme of the section, observing that it generally conferred the status of adhivasi and the right to retain or regain possession on persons recorded as occupants in the khasra or khatauni for 1356F, provided the land was not grove land or land to which section 16 applied. The Court noted that such persons did not include intermediaries, as stated in Explanation IV. The provision required that the person be recorded as an occupant in the khasra or khatauni for the period from 1 July 1948 to 30 June 1949. If such a person continued to be in possession, the possession continued; if the person was evicted after 30 June 1948, the law mandated restoration of possession regardless of any prior order or decree, treating the person as entitled to regain possession by fiction, as explained in Explanation I. The Court emphasized the importance of the entries in the khasra or khatauni of 1356F and the significance of the date 30 June 1948, which served as a line of demarcation. The explanations further highlighted that a corrected entry prevailing before the vesting date of 1 July 1952, or an order effecting such correction before that date, would determine the entitlement to possession.

There are two critical date lines in the provision: June 30, 1948 and July 1, 1952. The title to possession as an adhivasi depends on the entries recorded in the khasra or khatauni for the revenue year 1356F. Before assessing whether the respondents satisfy the statutory tests, the Court needed to explain the meaning of the terms “occupant” and “recorded.” The Act does not define “occupant.” Because the khasra registers both possession and enjoyment, the Court construed “occupant” to mean a person who actually holds the land in possession or enjoys it. The khasra may list the proprietor, a tenant, a sub‑tenant, or any other person who is in actual possession, as the circumstances require. If “occupant” refers to the person in actual possession, then, between a proprietor and a tenant, the tenant is the occupant; between a tenant and a sub‑tenant, the sub‑tenant is the occupant; and between a sub‑tenant and a person noted in the remarks column as “Dawedar qabiz,” that person is the occupant. This interpretation is the only logical way to read the section, which is intended to eliminate all intermediaries. Accordingly, rights must be determined solely in the manner prescribed by the section, and the entries must be interpreted in line with the four explanations attached to it. Once the proper person is identified under those explanations, that person continues to be deemed an adhivasi after July 1, 1952, provided he remains in possession or was evicted after June 30, 1948. If he was evicted after that date, he is entitled to regain possession notwithstanding any contrary order or decree.

The term “occupant,” therefore, signifies both occupancy and enjoyment. Mediated possession, except where the immediate possessor holds the land on behalf of a mediate possessor, has no bearing on the determination of rights. Consequently, even individuals who entered into occupation when the lands were abandoned receive legal recognition. The provision avoids any inquiry into disputed possession by accepting the entries in the khasra or khatauni of 1356F, or any correction made before July 1, 1952. It may have been presumed that all disputes would resolve within the four‑year period between June 30, 1948 and June 30, 1952. Nevertheless, a difference of opinion persisted for some time regarding whether possession in 1356F must be proved, a dispute between the Allahabad High Court and the Board of Revenue. Section 20 was considered by this Court in The Upper Ganges Sugar Mills Ltd. v. Khalil‑ul‑Rehman, where the correctness of Lala Nanak Chand v. Board of Revenue, U.P. was challenged on the ground that it allowed a mere entry in 1356F without actual possession. This Court left the question open. Later, the Allahabad High Court, in several decisions including the Full Bench judgment in Ram Dular Singh and another v. Babu Sukh Ram, endorsed the earlier view of Nanak Chand. The subsequent decision in L. Bhal Singh v. Bhop continued this line of authority.

In the decision referenced as another (4) the Court expressly approved a passage from the earlier Nanak Chand case, stating that clauses (b)(i) and (b)(ii) of Section 20 do not obligate a party to prove actual possession during the year identified as 1356F. Rather, the statutory requirement is satisfied simply by the entry of the individual’s name as an occupant in the Khasra or Khatauni for that year. The Court observed that the language of the provision is explicit, noting that it refers to “every person who was recorded as occupant in the Khasra or Khatauni in 1356F,” and does not contain the additional wording “who was an occupant in 1356F” nor the combined phrase indicating both recording and possession in that year. The judgment emphasized that it would be improper to insert words into the statute that are not present, and it pointed out that this interpretation is further supported by the language of Explanation 11. The Board of Revenue, in the case of Sugriva v. Mukhi etc. (5), adopted the same interpretation, reinforcing the established line of authority. Given the long‑standing jurisprudence on this point, the Court found no reason to revisit the issue. Consequently, the Court concluded that the Board of Revenue’s decision was correct, that the appeal could not succeed, and that the appeal was dismissed with costs, including an order for the payment of one set of hearing fees. The appeal was therefore dismissed. (1) [1961] 1 S.C.R. 564. (2) 1955 A.L.J. 408. (3) 1963 A.L.J. 667. (4) 1963 A.L.J. 288 at p. 291. (5) 1963 A.L.J. 17 (Rev.).