Civil Suit No. 188 of 2015 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK R.S.A. NO.136 OF 2018 In the matter of an appeal under Section-100 of the Code of Civil Procedure assailing the judgment and decree passed by the learned Additional District Judge, Kamakhyanagar in RFA No.23 of 2017 confirming the judgment and decree passed by the learned Senior Civil Judge, Kamakhyanagar in Civil Suit No.188 of 2015. Notified Area Council, Kamakshyanagar ---- -versus- ::: Appellant. Narahari Panda & Another ::: Respondents. Appeared in this case by Hybrid Arrangement (virtual/physical mode) =============================================== For Appellant :::: M/s. Banshidhar Baug, D.K. Sahoo, S.N. Nayak, Advocates. For Respondents :::: Ms. Samapika Mishra, Additional Standing Counsel. :::: M/s. Debakanta Mohanty, K.K. Mohapatra, S. Mohanty, T.R. Mohanty, Advocates. CORAM: MR. JUSTICE D.DASH DATE OF JUDGMENT:: 27.01.2023 D.Dash, J. The Appellant by filing this Appeal under Section-100 of the Code of Civil Procedure 1908 (for short, ‘the Code’) have assailed the judgment and decree passed by the learned Additional District Judge, Kamakshyanagar in RFA No.23 of 2017. Page 1 of 22 // 2 // By the same, the Appeal filed by the present Appellant being the aggrieved Defendant No.1 in Civil Suit No.188 of of the Court of learned Senior Civil Judge, Kamakshyanagar 2015 under Section-96 of the Code in assailing the judgment and decree passed therein has been dismissed. The suit filed by the Respondent No.1 as the Plaintiff for declaration of his natural right of access over the suit schedule land and for mandatory injunction directing the Appellant/Defendant No.1 to demolish the constructions made over it seeking further relief of permanent injunction having been decreed by the Trial Court, the same has been confirmed in the First Appeal. 2. The suit filed by the Respondent No.1 as the Plaintiff has been decreed in terms of the following orders:- “The suit of the Plaintiff be and the same is decreed on contest against the defendant and the proforma-defendant, but without any cost. As such, it is declared that the
Legal Reasoning
plaintiff has the natural right of access from his plot bearing no.980/3448 under Khata No.375/786 of mouza Kamakhyanagar to the adjacent national highway over the suit plot which is part of the plot no.932 of area Ac.0.03 dec. out of Ac.0.470 dec. as described in the schedule of the plaint. Furthermore, the defendant i.e. the NAC, Kamakhyanagar is directed in shape of mandatory injunction to remove the construction so far raised by it over such suit schedule land within a period of three months of this judgment, failing which the plaintiff may Page 2 of 22 // 3 // cause removal of the same through the process of the Court. In that event, the cost of removal may be realized by the plaintiff from such defendant. Apart from this, the defendant i.e. the NAC, Kamakhyanagar along with its men and agent are permanently injuncted from making any further construction over such suit property which has the effect of creation of obstruction to the frontage of the plaintiff’s land. The litigation expenses are to be borne by the parties on their own.” 3. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit. 4. The Plaintiff’s case is that he is the owner of land under Hal Plot No.980/3448 at Kamakhyanagar which situates towards the south of National Highway-200 connecting Talcher-Duburi. The land as aforesaid stands recorded in the name of the Plaintiff. It is stated that originally one Gagan Bihari Mohapatra was the recorded owner of the said land as per Sabik (old) record. The Plaintiff on 30.05.1978 purchased the said land from Gagan Bihari and possessed the same as its owner. Having purchasing the suit land, Plaintiff being a Doctor by profession constructed a building over the land and has been running a Hospital under the name and style of Bhagirathi Hospital. It is stated that the land purchased by the Plaintiff and the land over which the National Highway runs are side by side and the Page 3 of 22 // 4 // purchased land of the Plaintiff is intervened by a plot of land which belongs to the State Government and that is under Plot No.932. It is stated that said land belonging to the Government has been lying vacant all along as the road side land which is now the National Highway side land. The Hospital standing on the land of the Plaintiff was inaugurated in the year 1985. The land owned by the Plaintiff abouts that land of the State Government which abuts the National Highway-2000. Since the time of purchase of the land from Gagan Bihari, the Plaintiff claims to have been using the land belonging to the State Government under Plot No.932 as the access to his Hospital from the National Highway. It is pleaded that the vehicles coming to the said Hospital as also patients and attendants use the said vacant land under Plot No.932 to come to the Hospital from the National Highway. The Plaintiff also claims to be running a Medicine Store which is adjacent to the southern side of the vacant land facing towards the National Highway to which also the people use to come by using that vacant land to purchase medicines etc. The Plaintiff thus claims to have been in open, peaceful and uninterrupted enjoyment of the said vacant land belonging to the State Government lying by the side of the National Highway to come to his purchased land and Hospital standing thereon for last 36 years. Thus, it is stated that he has acquired the right of easement over the said vacant land of the State Government by way of prescription. Over and above Page 4 of 22 // 5 // the same, it is plea of the Plaintiff that the acquired land being the land which adjoins the National Highway and that in turn when adjoins the purchased land of the Plaintiff over which the Hospital building stands, he has a natural right of access through it from each point of his purchased land which adjoins that land. It is his case that the State has never objected to such user of its land by the Plaintiff nor any obstruction has been caused at the behest of the State on such user of the land by the Plaintiff. it is alleged that the Defendant No.1 being not the owner of the said plot of land appertaining to Plot No.932 and without having without any authority trespassed over the same and started digging foundation for putting up construction of permanent nature. Thereafter, the Defendant No.1 constructed the house over there and thereby has blocked the land of the Plaintiff on that side over which the Hospital building stands. They also fenced in the entire plot of land under Plot No. 932 and created obstruction in the user of the said land by the Plaintiff, causing severe inconvenience. So, this suit has ultimately been filed after withdrawal of the prior suit i.e. C.S. No.161 of 2014 with necessary leave. 5. The Defendant No.1 by filing written statement contested the suit. It is stated that the land under Plot No.932 which is the subject matter of the suit abuts the National Highway-200 towards southern direction and that is owned by the Defendant No.2 as standing recorded in the record Page 5 of 22 // 6 // of right under Anabadi Khata No.409. For the development and improvement of the living conditions of the inhabitants of the Notified Area Council and to provide them with basic amenities, the Defendant No.1 applied before the Defendant No.2 (State of Odisha) for grant of lease of the above land. The Defendant No.2 has thereafter leased out the suit land in favour of the Defendant No.1, a deed of lease has come into being on 04.08.2007 which is for a period of 99 years. The Defendant No.1 thus being the long term lessee of the said land is said to be in possession of the same being so delivered with after due demarcation. It is further stated that on every Monday of the week, market used to sit over a portion of the said land. In the year 2017, the Defendant No.1 took a decision to construct a Souchalaya (Laboratory), Vegetable Market and Restaurant over the lease land so as to provide facilities to the local public as well as the outsiders coming to the local area of the Notified Area Council every day. This decision was by way of a resolution passed by the Board of Notified Area Council. Pursuant to the same, tenders call notice being published inviting tender from the intending Contractors to put up the construction over the said land, those were received and ultimately the lowest bidder was awarded with the work for being so undertaken. When that Contractor started work, the Plaintiff filed the suit i.e. C.S. No.161 of 2014. The plaint of the said suit was however rejected as not maintainable for non-compliance of the Page 6 of 22 // 7 // mandatory provisions of law as conditions precedent to the institution of such suits. The Plaintiff having carried a writ application to the High Court vide W.P.(C) No.1777 of 2015, an order of status-quo had been passed. So the Contractor had to stop the work. Subsequently, on 03.08.2015, the Plaintiff withdrew said writ application; wherein the Hon’ble Court had passed an order directing that further construction work over the land in question be stopped. Since then without further progress in the work, the structures put up the roof level are standing. Defendant No.1 has further denied the averments of the Plaintiff that he is in open, peaceful and uninterrupted enjoyment of the said land as access to the National Highway from his purchased land for a period of 36 years by the time of the suit and as such his claim to have acquired right of easement over the same has been refuted. The Defendant No.1 then has taken a specific stand that the Plaintiff has no such natural right of access over the suit land in order to approach the National Highway. It is also stated that the construction put up over the suit land is not causing any such obstruction to the Plaintiff since sufficient area on the sides of the said plot are still vacant. It is also stated that the Plaintiff has enough space on three sides of the Hospital for easy ingress and egress to the public road and the National Highway to approach his land where Hospital building stands. The claim of the Plaintiff as to having any natural right over the suit land is thus seriously disputed in view of Page 7 of 22 // 8 // the existing right of access to other two public roads lying on the eastern and western side. When the Plaintiff during pendency of the suit questioned the jurisdiction and the power of the State Government to lease out the land because its the natural is communal, the Defendant No.1 stating that the nature of the land has undergone change during the settlement proceeding and has asserted that the said land has been rightly leased out by the owner-State as the lessor. 6. On the above rival pleadings, the Trial Court had framed in total seven (7) issues. It has rightly first taken up issue nos. 3 & 4 for decision as those concern with the claim of the Plaintiff of having the natural right of access over the suit land to come to his own purchased land from the National Highway as the suit land is Highway side land extent of the right of the Defendant No.1 being the lessee of the said land as exercisable. 7. Upon examination of evidence and their evaluations, the trial has returned the answers in saying as under:-. xxxx xxxx xxxx xxxx xxxx the plaintiff has the natural right to access the National Highway over the suit plot from every point and any such infringement of right will certainly be unreasonable. Hence, I am of the opinion that the defendant in this case i.e. the NAC, Kamakhyanagar has no right to make such Page 8 of 22 // 9 // construction over the suit property in view of the lease, which has the effect of infringement of such natural right of passage of the plaintiff from his land to the NH”. The above answer has led the Trial Court to decree the suit in terms of order as afore-indicated. 8. The First Appellate Court being moved by the aggrieved by the Defendant No.1 has refused to interfere with the said finding and ultimately, the decision rendered in the suit has been confirmed. Hence, this Second Appeal is at the instance of the Defendant No.1 who has suffered from the decrees passed by the Courts below. 9. The present Appeal has been admitted to answer the following substantial questions of law:- i) Whether the First Appellate Court erred in law by not framing the points for determination under Order-41, Rule- 31 of CPC while passing the impugned judgment? ii) Whether the courts below have decreed correctly the suit of the plaintiff while he has got passage to his plot from the National Highway and can he further claim natural right of way over the Government Land? 10. Learned Counsel for the Appellant confining his submission to the substantial question of law as at (i) contended that the foundation of the claim of the Plaintiff that he has the natural right of way over the suit land to approach the National Highway from his own purchased land has no legal base as according to him, as a matter of fact and as is Page 9 of 22 // 10 // also borne out of the evidence of that when the National Highway-200 is situated towards south of the land of the Plaintiff which is intervened by the suit land; said land of the Plaintiff has two roads adjoining his own purchased land, on the east and the west, which are concrete roads maintained by the Defendant No.1 and not only used by the inhabitants of the locality but also by the persons who use to go to the Hospital and the Medicine Shop of the Plaintiff which he is running, wholly adjoining the eastern side road. He also submitted that the claim of the Plaintiff that he has the natural right of way over the suit land to approach the National Highway from each point of frontage of his land lying to the south of the National Highway being intervened by the suit land is wholly unreasonable and detrimental to the public interest. He submitted that even after construction of the building on the mid of the suit land, there lies two strips of vacant lands on the east and west running up to the land of the Plaintiff over which the Hospital building stands upto the National Highway. According to him, under the circumstances, now to claim that the entire suit land should remain vacant for the Plaintiff to exercise his natural right is not only unreasonable but also legally tenable and it is with an ulterior motive to subsequently grab the suit land. He further submitted that in the facts and circumstances of the case as are emanating from the evidence as to the positioning of the National Highway, the suit land and Plaintiff’s Page 10 of 22 // 11 // land as well as other adjoining land especially the two public roads on the eastern and western side of the Plaintiff’s land; the Plaintiff’s claim of natural right over the suit land is wholly untenable and as such cannot be so declared. According to him, the Courts below having not properly appreciated the evidence on record and being oblivious of the very objective behind the evolvement of the concept of natural right being with a person in possession of a particular land over the land lying by its side to approach the public road, does not spring here in favour of the Plaintiff, have decreed the suit which is liable to be set aside. 11. Learned Counsel for the Respondent No.2-State reiterating the
Legal Reasoning
submissions of the learned Counsel for the Appellant submitted that the State having the authority has rightly leased out the land to the local body i.e. Defendant No.1 and the Plaintiff has absolutely no authority to question the same which shows that his motive behind asserting the natural right over the suit land is only to grab the suit land in future. She submitted that the claim of the Plaintiff over the suit land is unreasonable and against the public interest which are also to be taken note of in deciding the matter. 12. Learned Senior Counsel for the Respondent No.1 submitted all in support of the conclusion arrived at by the Courts below. According to him, in view of the admitted positioning of the land of the Plaintiff as well as the suit land in between the two, the Plaintiff cannot be denied Page 11 of 22 // 12 // with the natural right of using the suit land as access from each point of his land on that southern side length. It is submitted that the natural right over the suit land as claimed and decreed by the Courts below in favour of the Plaintiff is not liable to be tinkered with merely for the existence of the other two roads on the eastern and western side of the purchased land of the Plaintiff. 13. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below. I have also gone through the plaint and the written statements. I have perused the depositions of the witnesses as well as the documentary evidence tendered by the parties. Faced with the above rival submission, let us first now undertake the exercise to find out the answer to the substantial question of law as at (ii). 14. At the risk of repetition, it may be stated that the Plaintiff has purchased the land under Hal Plot No.980/3448 situated on the southern side of National Highway No.200 connected to Talcher-Duburi Town. He had purchased this property by registered sale deed dated 30.05.1978. It has been stated by him that he had constructed a hospital over the same and in between the National Highway and the hospital, a strip of vacant land appertaining to Sabik Plot No.217 was then lying. He has stated that he and others approached the National Highway from the hospital through that vacant plot, which is now Hal Plot No.932 Page 12 of 22 // 13 // corresponding to Sabik Plot No.217. It is stated that the general public use the land as parking place and the ambulances of the hospital are parked there. The medicine store of the hospital faces towards the south of the vacant land and the National Highway No.200 and as such, the Plaintiff used the vacant land as of natural right of access to the National Highway. 15. At this stage, it is felt apt and proper to first of all ascertain the nature of the land in view of its peculiar situation vis-à-vis the rights exercisable over it. “A road is a highway for the passage of all the members of the public. The public have a right of passing and repassing thereon and can exercise that right in a reasonable way without transgressing the usual mode in which such right in normally exercised (Smith’s Leading Cases, Vol. II, 13th Edn., page 166). A road is also meant to provide access to and from the tenements which abut on it on either side. For the purposes of this case, it is this latter right that has to be considered. That right has been generally laid down in the following terms:- “An owner of lands adjoining a highway is entitled to access to the highway at all points where his land adjoins the highway, whether or not the soil of the highway be his. (Smith’s Leading cases, Vol-II, 13th Edn., page 172).” Page 13 of 22 // 14 // This right of immediate access from private property to a public highway is a private right distinct from the right of the owner of that property to use the highway as one of the public, as has been pointed out in “William Lyon v. The Wardens & Co., of the Fish Monger’s Co., etc” (1875-76 AC 662), a case relating to the rights of an owner of a wharf on the bank of a navigable river which in this respect are the same as those of an owner of land abutting a public highway. Such a right of access belongs to the proprietor of the adjoining land as a natural incident to the right to the soil itself of such adjoining lands and he is entitled to the benefit of it as he is to all the other natural advantages belonging to the land of which he is the owner (page 674 of the report of above mentioned case). In Marshall v. Mayor Aldermen and Burgesses of the County Borough of Blackpool; (1935 AC 16 (22)), the House of Lords has explained that right in the following terms:- “The owner of the land adjoining a highway has a right of access to the highway from any part of his premises. This is so whether he or his predecessors originally dedicated the highway or part of it and whether he is entitled to the whole or some interest in the ground subjacent to the highway or not. The rights of the public to pass along the highway are subject to the right of access just as the right of access is subject to this rights of the public and must be exercised subject to the general obligation as to nuisance and Page 14 of 22 // 15 // the like imposed upon a person using the highway. Apart from any statutory provision, there is no obligation upon an adjoining owner to fence his property from the highway”. 16. This right of access has also been recognized in the Indian law as appears from the following decisions: (i) Dwarka Prasad v. Patna M.C; AIR 1938 Patna 423. (ii) Municipal Committee, Delhi v. Md. Ibrahim; AIR 1935 Lahore 196. (iii) Patna Municipality v. Dwaraka Prasad; AIR 1939 Patna 683. In the above noted decisions under item no. (1) and (ii), this right has been referred to as a right of road frontage and it has been said:- The right of road frontage no less than the right of access is implicit in the position of land. It is unnecessary to discuss for the purpose of this case whether the right of frontage is or is not wider than the right of access and whether such right also arises with reference to the position of the land. There can, however, be no doubt that the owner of the abutting land has an actionable right if his right of access to the frontage is infringed. But as has been laid down by Their Lordships of the Privy Council in Bell v. Corporation of Quebeck; 1879-80 AC 84 (100). Page 15 of 22 // 16 // Whether an obstruction amounts to an interference with the access to frontage would be a question of fact to be determined by the circumstances of each particular case. It is also well settled that while the abutting owner has the right of access it is not in the case of every interference with such a right that is actionable that he is entitled to obtain a remedy by way of injunction. In Sellor v. Local Board of the Health for Matlock Bath, the plaintiff who was an abutting owner claimed injunction in respect of two matter: (1) the erection and continuance of a public urinal adjacent to his property and alleged to be a nuisance; (2) the placing and continuing of kerb stones in front of plaintiff’s property so as to prevent her access by carriages to that property. An injunction was granted in respect of the first but was refused with reference to the second with the following observations:- As to the rest of the plaintiff’s claim, I think it is much less substantial. Besides the triangular piece of land, she has some land and buildings abutting upon the same high road consisting of an inn and some stables. These stand back from the road and in front of them is a space which has been left open to, and on a level with the road until recently when the defendants made a foot-path on the road outside the plaintiff’s land with raised kerb stones, but left openings so that carriage can still go in from, and out into the road, but not at Page 16 of 22 // 17 // every part of the boundary as heretofore. The plaintiff contended that this was interference with her right to have access for all purposes to other portion of the highway adjoining her property. xxxx xxxx xxxx xxxx xxxx I think it cannot be contended that wherever any person has land adjoining the road which has remained undistinguished from the road, …… he can as a matter of course restrain the local authorities from making raised foot-path for the accommodation of the public on a part of the road, which is vested in them merely because by so doing they may render it impossible, for the time, for the owner of the land to draw up a carriage close to the exact boundary of his land or to enter his land at every inch of the boundary. xxxx xxxx xxxx xxxx xxxx I am of opinion that this is a case in which the landowner’s remedy at all events in the absence of any unreasonable conduct on the part of the local authority, is to claim compensation. 17. In 1901 A.C. 329, the owner of an abutting premises brought an action for injunction to restrain a local authority from putting certain lamp-posts in the road near their premises on the ground that it interfered with and obstructed the business they were carrying on these premises. The Court in dismissing the action said:- Page 17 of 22 // 18 // The plaintiff set up a right to have a particular portion of the highway so kept that they shall be in a position to exercise an alleged right of using it to them maximum of their own convenience. It does not seem to me that they have any such right. 18. In the light of above, it has been held in case of Chairman, District Board Puri Vrs. C.H. Achaya; 1950 ILR (Cuttack) at page 608 that :- “An abutting owner of a road including therein the roadside lands, which form part of the road has the undoubted right of access to the road from all points of his property but the right cannot be construed as entitling him to insist upon leaving the road absolutely free from any other kind of use than for mere passing and re-passing of the members of the public. If such a use is otherwise reasonable and is within the scope of the purpose of the Local Self-Government Act, an abutting owner has been substantially interfered with and whether that is so or not is a question of fact to be determined having regard to all the circumstances of the case. It appears to me also that on a question whether any particular use of the roadside land amounts to a substantial interference with the right of access of an abutting private owner, the fact that it is a roadside land and not the regular road carrying the traffic may conceivably make a difference on a consideration of the question as one of fact, and on the question whether there has been any unreasonable conduct on the part5 of the local authority and whether, in any case, the abutting owner is entitled to an injunction for the removal of the interference or obstruction.” Page 18 of 22 // 19 // 19. The availability of such a right was also extended to the occupier of a land adjoining the highway, in Manbhum District Board v. Bengal Nagpur Railway Co.; AIR 1945 Patna 200, where it was pointed out that the right of access to the highway at all points where a land adjoins the highway at all points belongs not only to the owner of the land, but also to the occupier and the occupier can sue for removal of obstruction interrupting his right of access to the highway and the fact that the owner or occupier of the adjacent land had fenced it off or raised a wall for his convenience or opened a gateway on the other side cannot affect his right of access to the highway. 20. Thus, comes the answer as to what is the nature of right that is available to the owner of the land over the land which situates in between the public road and his own land. The right is natural right of access arising from the situation and positioning of the lands and public road. It is well settled that while the abutting owner has the right of access, it is not that in the case of every interference with such a right; that is actionable that he is entitled to obtain a remedy by way of injunction. Such natural right of access which essentially arise and stands conferred by virtue of the peculiar positioning of the same land and road, in my considered view does not continue to exist for eternity. Page 19 of 22 // 20 // It is amenable to variation depending upon the changes in the surroundings. This natural right of access of a person over the land which situates in between that person’s land and the public road is because of the possessioning of his land and in course of time, more particularly, in view the rapid pace at which the developments are taking place everywhere and changing situations in the field, being oblivions of the same, that right cannot be said to be permanent. 21. Adverting to our case, here the Plaintiff (P.W.1), in his evidence, has admitted that there is road on western side of his purchased land, which is a private road. He, however, says that he is not using that land as his frontage. The Plaintiff’s evidence at Paragraph-10 reads as under:- xxxx xxxx xxxx xxxx can never remain fixed forever. “It is a fact that towards adjacent west of my land, there is a road approaching National Highway. It is a fact that such approaching road is being constructed over a portion of my own land bearing plot no.980 and over a portion of Government Plot bearing No.932”. xxxx xxxx xxxx xxxx xxxx When it is stated that the Defendant No.1 has made construction over a portion of the lands situated in between Highway and a part of land of the Plaintiff under Plot no.980, it stands admitted by P.W.1 that there is a gap of 10! from the door of his medicine shop upto the construction side of NAC. It stands admitted that at present, the Page 20 of 22 // 21 // Plaintiff’s land over which the hospital building stands is directly connected to a road on its west which joins the National Highway. It is also seen that to the land of the Plaintiff adjoining his medicine shop on the east, there lies a road which connects the National Highway and two strips of vacant land of the width of around 15 feet or so situate, both on eastern and western side, touching the National Highway. When the constructed building of the Defendant No.1 covers a portion of 26! 2!! X 50! 7!! as per the map given by the Plaintiff as at Annexure-3 to his objection in Misc. Case No.257 of 2018, it is also seen that on both side of said construction i.e. on west and east, vacant space of around 15 feet width runs from the Plaintiff’s land touching the Highway. 22. In that view of the matter, even though for a moment, it is said that the Plaintiff had the natural right of access to the National Highway over the suit plot from every point of his purchased land to the National Highway, the same does no more subsists in view of the later availability of equally convenient and efficacious road for user of the Plaintiff. Even otherwise, for the construction made by the Defendant No.1 over a portion of the suit land that too leaving passage on both sides which touches the Plaintiff’s land and runs upto the Highway, no substantial interference with the natural right available to the Plaintiff is found to have been caused. Page 21 of 22 // 22 // The substantial question of law as at (i) is thus answered in saying that the Courts below have erred in declaring that the Plaintiff has the natural right of access from his plot of land bearing no.980/3448 under Khata No.375/768 of Mouza-Kamakhyanagar to the adjacent National Highway over the suit plot which is part of the land under Plot No.932 of an area of Ac.0.03 decimals out of Ac.0.470 decimal, as described in the schedule of plaint. In that view of the matter, the judgments and decrees passed by the Courts below directing Defendant No.1 to remove the construction so far raised over the suit schedule land is liable to be set aside. It be however stated that the Defendant No.1 would keep the two strips of land of the width of 15 feet on east and west of the construction put up on the land under Plot No.932 touching the Plaintiff’s land under Plot No.980/3448 vacant upto the National Highway for being used to have the access as such. 23. In the result, the Appeal stands allowed. The judgments and decrees passed by the Courts below, which have been impugned in this Appeal, are hereby set aside. There shall, however, be no order as to cost. (D. Dash), Judge. Page 22 of 22