1. ' This IInd appeal under section 100, C.P.C. Is directed against the judgment and decree passed by the learned VIIth Additional District Judge, Karcahi, in Civil Appeal No,211 of 1980, affirming the judgment and decree passed by the learned 1st Senior Civil Judge, Karachi, in Suit No, 1432 of 1972.
2. The relevant facts forming the background of this appeal are these. Raees Muhammad Khan, plaintiff/respondent No,1 (since deceased, hereinafter called "the Pre-emptor") filed Suit No, 1432 of 1972 against Abdul Ghaffar, defendant No,1/appellant, (since deceased, hereinafter called 'the Purchaser') and the respondents Nos. 2 to 6 (hereinafter jointly called "the Sellers") pleading that he owns and possesses a plot of land bearing Survey No,12, Sheet No, LY-18, situated between Old Kumar Wara Road and Moulvi Muhammad Usman Road, Karachi, by inheritance (hereinafter called "the said land") and that the Sellers owned and possessed plot- of land bearing Survey No,13, Sheet No, LY-18, measuring 148 square yards, (hereinafter called "the Suit Property") situated just adjacent to the said land of the pre-emptor between the said roads at Karachi, that by registered Sale- Deed, dated 12th June, 1972. Sellers secretly sold and fraudulently conveyed the suit property to the Purchaser for a consideration of Rs,20,000 in order to avoid a suit for pre-emption, that the Pre- emptor being the owner of the said land had a right of pre-emption which was superior to that of appellant, that the parties were governed by Sunni School of Muhammadan Law and, consequently, the Pre-emptor was entitled to pre-empt and get possession of the entire suit property sold by the sellers to the purchaser, that pre-emptor heard of the sale of the suit property by the sellers to the purchaser for the first time on 14th August, 1972 and he immediately declared his intention to assert the right of pre-emption and, on the same day, affirmed the said intention by making a formal demand in the presence of the purchaser and to the sellers through respondent No,3, their attorney, and two witnesses as required under the law. Upon purchaser's refusal to do so, he (the pre-emptor) filed a suit (Suit No, 1432 of 1972) in the Court of IInd Civil Judge, First Class, Karachi, for the grant of following reliefs to him:-
(a) A judgment and decree for possession of the entire said property on payment of Rs,20,000 or such other sum that may seem proper.
(b) Cost of the suit.
(c) Any other relief that may be deemed fit and proper in the circumstances of the case.
3. The purchaser filed his written statement raising, inter alia, the legal objections that the law of pre-emption is not applicable to Karachi, the suit was filed was not maintainable under the law and that the suit as such was incompetent and bad in law. However, admitting that he had purchased the said property from the sellers, he denied all the allegations made by the pre- emptor in the plaint including averments in regard to demands (talabs) which were alleged to have been made in accordance with the Muhammadan Law of Pre-emption by him. It was averred that the oral transaction between the parties was settled somewhere in May, 1971, and thereafter even the pre-emptor accompanied the respondents Nos.3 and 4 alongwith others to negotiate the dispute between the parties. The Notice of sale was published in daily 'Jung', Karachi, on 24th May, 1972, but the Pre-emptor did not stress his right of pre-emption. Lastly, it was pleaded that the purchaser was put in possession of the suit property much before the date referred to by the Pre- emptor to his knowledge and as such the suit was clearly time-barred. He also denied that he purchased the suit property for consideration of Rs,20,000 only as shown in the sale-deed, to the knowledge of the pre-emptor.
4. The sellers also filed joint written statement raising the same pleas, both legal and factual, as were pleaded by the purchaser in his written statement, as stated above.
5. Out of the pleadings of the parties, the learned trial Court framed the following issues:-
(1) Whether the plaintiff is the owner of the property adjoining the suit property?
(2) Whether the plaintiffs right to purchase the pre-empted property is not superior to that of defendant No,1?
(3) Whether the plaintiff had expressed his intention to buy the suit property immediately on coming to know of the sale?
(4) Whether the plaintiff came to know of the sale of the suit property for the first time on 14-8-1972 and immediately declared his intention to assert his right of pre-emption according to law?
(5) To what reliefs, if any, is the plaintiff entitled.
5. In support of his case the pre-emptor examined himself as his witness as P.W.1, Abdul Hakim s/o Haji Abdul Karim as P.W.-2, Deedar Hussain"s/o Raees Gul Hassan as P.W.3, and Hamza s/o Ahmed as P.W.4. In addition to this oral evidence, the purchaser also produced documentary evidence consisting of the Extract from property registered as Ex.6 and copy of the Conveyance Deed, dated 12th June, 1972, executed by the Sellers in respect of the suit property.
2. ' As against this, the purchaser (D.W.-1) examined himself as Exh.12 whereas on behalf of the Sellers, Ali Muhammad s/o Yousuf, the respondent No,3 (D.W.-2) as Exh. 11 and one Altaf s/o, Ismail (D.W.-3) as Exh.13.
3. ' After considering the aforesaid evidence adduced by the parties the learned trial Court decided all the first four issues in the affirmative and, consequently, the suit was decreed vide judgment, dated 17th March, 1980.
4. ' Aggrieved by the judgment and decree of the trial Court so passed, the purchaser filed an appeal being Civil Appeal No,211 of 1980 in the Court of District Judge at Karachi. It came up for hearing before the learned VIIth Additional District Judge, Karachi. The learned 1st Appellate Court upheld the impugned judgment and decree of the trial Court and dismissed the appeal vide judgment and decree, dated 30th August, 1983. Hence this IInd Appeal at the instance of the Purchaser.
5. During the pendency of appeal, the appellant Abdul Ghaffar died on 4th of August, 1985. His L.Rs, 12 in number, have been brought on record. Later on Raees Ahmed Khan, the plaintiff respondent No,1 also died on 31st December, 1987. His L.Rs, 10 in number, have also been brought on record.
6. ' I have heard Mr. Zafar Alam Khan, learned counsel on behalf of the appellant/buyer and Mr. Abdul Latif Channa, learned counsel on behalf of the respondent No,1/Pre-emptor. I have also heard Mr. Feroz Khan, learned counsel on behalf of respondents Nos.2 to 6/the Sellers.
7. ' Upon presentation of the IInd Appeal, the office of this Court raised the following objections: "For consideration whether IInd Appeal is maintainable in view of Ordinance X/80, C.P.C. Which amended section 102, C.P.C., under which the Revision will be upto the value of Rs,50,000."
8. ' At the request of Advocate for appellant, this objection was referred to the Court for consideration.
9. The learned Single Judge while admitting the appeal to regular hearing, made the following observations with regard to the above objection:- "The question of maintainability of the appeal could be considered at the time of hearing. This objection is not of much consequence as even otherwise the revision would lie to this Court. The Court has the power to convert the appeal into Revision particularly for the reason that no prejudice would be caused to the respondent."
10. ' In connection with the above objection, it was contended by Mr. Zafar Alam Khan, learned counsel for the appellant that notwithstanding the amendment made in Section 102, C.P.C. Thereby raising the amount of Rs,2,000 to Rs,50,000, this IInd Appeal is competent. The counsel submitted that the right of appeal accrues to a party on the date of filing of the suit. The suit, which led to the filing of this appeal, was filed on 18th August, 1972 when the sum of Rs,2,000 was mentioned in clause (b) to Section 102, C.P.C. Referring to section 6 of the General Clauses Act, Mr. Zafar Alam Khan vehemently contended that the right to file IInd Appeal had vested in the appellant, and it could not be taken away by the amending Ordinance since no such intention has been expressed by the legislature therein. The amendment, ipso facto, according to Mr. Zafar Alam Khan, did not affect the vested right of the parties to the suit to file the IInd Appeal in this Court. For this proposition, he relied on the following authorities:-
(1) Aziz Khan v. Maiz Muhammad Khan and others (PLD 1980 Peshawar 227);
(2) Mst. Nazir Begum and others v. Qamarunnisa and others 1982 CLC 2271.
(3) Mst. Sardar Begum and others v. Muhammad Ilyas and others (1983 CLC 1570);
(4) Idrees Ahmed and others v. Hafiz Fida Ahmed (PLD 1985 SC 376);
(5) Karam Din and others v. Ali Muhammad and others (1984 CLC 2981); and
(6) Mst. Ghulam Fatima and others v. Fazal and others (1986 CLC 2057).
11. ' Alternatively, the learned counsel for the appellant submitted that in any case even if this IInd Appeal is held to be not maintainable in law, then too it may be treated as a Revision and disposed of accordingly. A Civil Revision Application could, according to him, in this case, be filed directly in the High Court.
12. ' Mr. Abdul Latif Channa, learned counsel for respondent No,1, on the other hand, submitted that after the said amendment of Section 102, C.P.C. The IInd Appeal is not maintainable. Mr. Channa submitted that it was a matter of procedural law and the purpose of amendment was to abridge the procedure. He stated that the suit which was filed on 18th August, 1972, was disposed of by the trial Court on 17th March, 1980. The amendment in question in Section 102, C.P.C. Was made on 26th March, 1980; whereas the 1st Appeal was filed on 27th March, 1980 which was decided by the learned 1st Appellate Court vide judgment and decree, dated 30th August, 1983. In support of his contentions, Mr. Abdul Latif Channa, sought to place reliance on the following decisions:-
(1) Mohkamuddin v. Meharban and 8 others PLD 1983 Quetta 42;
(2) Noor Muhammad, etc. v. Sher Muhammad 1982 CLC 2397;
(3) Ahmed Yar and another v. Muhammad Aslam 1981 CLC 527;
(4) Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139;
(5) Anwar Ali v. Shah Nawaz and others PLD 1989 Karach 246.
15. Abdul Latif Channa, the learned counsel, however, conceded that this Court is fully competent to convert this appeal into Revision and that he has no objection if it is so done.
16. The suit, as already stated, was instituted on 18th August, 1972. In the plaint the value of the subject-matter of suit was shown at Rs,20,000. Section 102, CPC at the time of filing of the suit was as under:- "No second appeal in certain cases.---No second appeal shall lie---
(a) in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five thousand rupees; and
(b) in any other suit, when the amount or value of the subject-matter of the original suit does not exceed two thousand rupees."
13. ' The above section was later on amended by section 12 of the Code of Civil Procedure (Amendment) Ordinance, 1980 with effect from 26th March, 1980 as under:- "Amendment of section 102, Act V of 1908.---In the said Code, in section 102, in clause (b), for the word two the word "fifty" shall be substituted."
17. It is a too well-established proposition of law by authorities, as rightly pleaded by the learned counsel for the appellant, that the right to appeal vests in the parties on the date of institution of the suit. The law as on the relevant date created a bar to the filing of IInd Appeals arising out of the suits where the amount or value of subject-matter did not exceed Rs,2,000. In the instant case, the value of the suit, as stated above, was Rs20,000, i,e. Exceeding Rs2,000. The bar thus created by subsection (b) of section 102, C.P.C. Was not attracted. By virtue of section 3 (b) of the Law Reforms Ordinance, 1972, which came into force on 14th April, 1972, it was provided that, "as from the commencement of this Ordinance no second appeal shall lie in any suit of the nature referred to in section 102 of the Code of Civil Procedure, 1908 (V of 1908), as amended by this Ordinance; Provided that anything contained in this Ordinance shall be construed as affecting any such appeal which was pending immediately before the commencement of this Ordinance."
14. No such bar was, however, created by the Code of Civil Procedure (Amendment) Ordinance, 1980, with the result that in suit of the nature mentioned in clause (b) of section 102, C.P.C. Filed between 14th April, 1972 and 25th March, 1980, where the amount or value of the original suit exceeded two thousand rupees, as in the case in hand, the right to file second appeal, which became vested in the litigants at the commencement of the action, remained unaffected. Admittedly the suit which has given rise to this regular second appeal was instituted in between the above-said two dates and hence the right to file second appeal which vested or accrued to the parties on the date of commencement of the suit remained unfettered despite the introduction of the amendment in clause (b) of section 102, C.P.C. Vide Ordinance X of 1980, with effect from 26th March, 1980, when it was published in the Gazette of Pakistan. It may be emphasised even at the expense of repitition that a right of appeal being a substantive right conferred by a statute is to be governed by law prevailing at the commencement of the lis in the Court of first instance unless it is taken away or affected by subsequent legislature expressly or by necessary implication. It is what has been held in the catena of reported decisions commencing from the case of the Colonial Sugar Refining Company Ltd. v. Irving (1905) A.C. 369 down to the present day, including the above-noted authorities cited by the learned counsel for the appellant. The contention to the contrary raised by the learned counsel for the respondent No,1 richly deserves to be repelled as unsustainable. Of the cases relied upon by the learned counsel for the appellant suffice, I think, it would be to refer and reproduce the relevant excerpts from the following two judgments only.
15. ' In the case of Karam Din, a learned Single Judge of the lahore High Court at page 2986 of the report held as under:- "It may be observed that the proposition is well-settled and admits of no doubt that the right of an appeal being a creation of statute is a substantive right. The institution of a cause, therefore, carries with it the consequential incident that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the original cause. The right of an appeal is a vested right and such a right to enter the superior Court/forum accrues to the litigant and exists as on and from the date the lis commences although it may be actually exercised when the adverse judgment is pronounced. The right of appeal, therefore, is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails on the date of its decision or on the date of filing of the appeal. This vested right of appeal which accrues at the time of initiation of the original proceedings can be taken away by a subsequent/amendment enactment only if the amending enactment provides expressly or by necessary intendment that the right is taken away retrospectively. The above principle is in complete accord with a long chain of authorities on the subject commencing from the Colonial Sugar Refining Company Limited v. Irving (1905) AC 365 and there ought not to be any cajole with the same."
16. ' The other case too which I propose to make a reference is that of Idrees Ahmed and others v. Hafiz Fida Ahmed (supra) at page 380 of the report, the Hon'ble Supreme Court has held as under: "The effect of repealing an Act passed after these statutes of general application is now governed by the saving provisions of these statutes. Thus, by the force of clauses (c) and (e) of section 6 of the General Clauses Act, unless a different intention appears from the repealing enactment, the repeal ipso facto will not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty forfeiture or punishment may be imposed as if the repealing enactment had not been passed. On the question whether a right of appeal given under the repealed enactment is such a right which survives the repeal we have the leading judgment from the English jurisdiction in The Colonial Sugar Refining Company Limited v. Irving (1905) AC 365. In this case although the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the repealed law, had been taken away by the repealing enactment, which provided only an appeal from the Supreme Court of Queensland to the High Court of Australia, yet the Act not being retrospective, the Privy Council ruled that a right of apeal to the King in Council in suit pending when the (repealing) Act, was passed and decided by the Supreme Court afterwards was not taken away. The principles enunciated in this case have held the field in this country and have been consistently followed by this Court. In a recent pronouncement of this Court Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners PLD 1981 SC 553, reference was made to the cases of this Court in which these principles laid down by the Privy Council were approved and it was observed that 'this proposition of law has now been firmly deep rooted on our legal system.' The proposition that all the rights to remedy by way of appeals or otherwise under an enactment stand vested and accrued in the litigating parties on the date of the commencement of the lis, is, therefore, not open to challenge, unless of course the repealing enactment, either expressly or by necessary implication, curtails such rights in any manner."
17. ' Now referring to the authorities cited by the learned counsel for respondents, I find that in the case of Mohkamuddin v. Meharban, the learned Single Judge of the Balochistan High Court, no doubt, on the basis of the language of section 102, C.P.C. As it stood after the amendment of that section vide amending Ordinance X of 1980, held the second appeal to be barred by section 102, C.P.C. As the valuation of the suit filed was Rs,10,000, namely, less than Rs,50,000. The learned Single Judge did not consider the effect of the amendment having been introduced with effect from 26th March, 1980 in respect of the cases which were instituted prior to the introduction of the said amendment.
18. There is, therefore, no discussion in this case with regard to the "vested right" and the fact of repealed or amendment to the "vested right". From the perusal of the judgment, it appears that the lis was commenced prior to the introduction of amendment vide Ordinance X of 1980. In this view of the matter, it could not be said to be a considered opinion of that Court with regard to the fact of the amendment of section 102 (b), C.P.C. By Ordinance X of 1980. Similarly Khizar Hayat, J. Of Lahore High Court in the case of Noor Muhammad etc. v. Sher Muhammad (supra), without examining the effect of section 102, C.P.C. By Ordinance X of 1980 and in view of the concession made by the counsel for the appellants allowed the preliminary objection to the effect that the regular second appeal was not competent, to prevail and disposed of the case as the revision petition. In so far as the case of Ahmed Yar and another v. Muhammad Alsam (supra) is concerned, there also notwithstanding the effect that the suit was filed on 8-11-1988, namely, before the amendment of section 102 (b), C.P.C. By Ordinance X of 1980, a learned Single Judge of the Lahore High Court (Manzoor Ahmed Sial, J.) without examining the legal effect of the said amendment to the suits instituted before the commencement of Ordinance X of 1980, on the concession of counsel for petitioners disposed of as under:-- "I have considered the arguments advanced by learned counsel for the parties and perused the evidence on the record. The preliminary objection raised by the learned counsel for the respondent having substantial force in it, was not contested by the learned counsel for the petitioners and as is apparent from the amended provision of section 102, C.P.C., regular second appeal shall lie only if the jurisdictional value of the subject-matter is more than Rs,50,000. The value of the instant suit being admittedly less than Rs,50,000 the appeal shall be treated as revision and disposed of accordingly."
19. ' Likewise in the case of Anwar Ali v. Shah Nawaz PLD 1989 Karachi 246 a learned Single Judge of this Court in a summary manner and without examining the legal effect of amendment introduced in section 102 (b) by Ordinance X of 1980 in the light of section 6 of General Clauses Act and the authorities on the subject, treated the second appeal as revision application, although the suit in that case was filed prior to the introduction of the said amendment with the following observations:- "Mr. Mehar Khan Rajput, learned counsel for the respondents took a preliminary objection that as the value of the suit is less than Rs,50,000, second appeal is not maintainable. The appellant could, however, file a revision only. The submission of the counsel for the respondent seems to be correct inasmuch as section 102, C.P.C. As substituted by Ordinance of 1980, provides that no second appeal shall lie when the amount or value of the subject-matter of the original suit does not exceed fifty thousand rupees. However, there is no impediment in treating the above appeal as civil revision which I accordingly do."
20. ' The question involved in the second appeal of Ahmed Hussain and others decided by Supreme Court by a combined order reported in PLD 1987 SC 139 was whether the second appeals filed in High Court, in all those matters were not competent because the value of jurisdiction of the suit given in the original suit in all those matters was less than Rs,2,000 should have been treated by the High Court as revisions and disposed of accordingly.
21. This authority, therefore, lends no support to the proposition sought to be canvassed by the learned counsel for the respondents.
22. ' For the reasons recorded above, the objection, to the maintainability of the second appeal raised by the office as well as by the learned counsel for the respondents stand overruled.
23. ' Next argument advanced by Mr. Zafar Alam Khan, learned counsel for the appellant was that the pre-emptor (respondent No,1) was not the full owner of the adjoining plot of land No,12 and as such he could not lay any claim by way of pre-emption on account of vicinage (Shafi-i-Jar). According to him, the finding recorded by the Courts below that the pre-emptor was the full owner of the land of Plot No,12 is the outcome of misreading and non-reading of evidence prevalent on record. The deceased respondent No,1 was the lessee of the said plot and as such could not claim the right of pre-emption. Developing his contentions, the counsel submitted that in the city of Karachi all estates/properties are vested in the Government of Sindh, who lease them out. The full ownership of the land, therefore, according to him, vests in the State. Inviting my attention to the extract from property register (Exh.6), Mr. Zafar urged that in column 6 thereof, it is mentioned as an "encroachment". This document thus, he so argued, does not establish ownership of respondent No,1 of the said Plot No,12. Against column No,7 of this document it is mentioned that the period of lease is 99 years from 8-11-1894. In support of his contentions, the counsel placed reliance on the authorities reported in 10 All. 472; AIR 1921 Pat. 164; AIR 1923 Pat. 217; PLD 1974 SC 11 and PLD 1986 SC 360 (Shariat Appellate Bench).
24. ' It was, on the other hand, submitted by Mr. Abdul Latif Channa, learned counsel for the pre-emptor that Exh.6 clearly establishes that the Plot No,12 was owned by the predecessors of the pre-emptor.
25. It was further submitted that all the witnesses examined on behalf of the Pre-emptor, including the pre-emptor himself, have clearly deposed that he (the Pre-emptor) is the owner of the adjoining Plot No,12 through its ancestors named in the Record of Rights (Exh.6). The veracity of their statements made on oath was not sought to be assailed during their cross-examination. In the presence of unrebutted deposition of the Pre-emptor's witnesses, the burden to prove that the Pre- emptor is not the owner of the adjoining land was thus on the Sellers and/or Purchaser, which they have failed to discharge inasmuch as no evidence whatsoever was led to establish that he was not the owner of the adjoining plot. As a matter of fact, according to him, no specific plea to that effect was even taken in the written statement filed on behalf of Sellers (defendants Nos.2 to 6), or the Purchaser (defendant No,1). The learned counsel for the respondent No,1 then maintained that the defendants Nos.2 to 6 (Sellers) also enjoyed the ownership of the suit property by having purchased the same from the original owners, to whom the said suit property was leased out for 99 years in the same manner as it was leased out to the predecessor-in-interest of the pre-emptor.
26. He further argued that in the Recordof-Rights (Ex.6) there is no column for "the lease-holder's name", whereas Column No,8 thereof is meant for the "Owner's name".
27. I have given due consideration to the submissions made by the learned counsel for the parties.
28. There is no cavil to the legal proposition, which is by now well-established by a series of authorities, that ownership of the adjoining property by the pre-emptor is sine qua non for the exercise of right of preemption.
29. The ownership of the Pre-emptor (deceased respondent No,1) has been held to be proved by the learned trial Court on the basis of Exh.6 and the absence of any evidence to the contrary adduced by the appellant and/or the respondents Nos.2 to 6. The learned 1st Appellate Court has upheld the finding of the trial Court in this behalf by relying on the evidence of P.W.3 Dedar Hussain (Ex.9). He was also influenced by the fact that the appellant before him had not established otherwise that the property Plot No,12 belonged to someone else. I also do not feel persuaded to agree with the learned counsel for the appellant that the Courts below had in any manner committed an error in deciding the issue No,1 in favour of the pre-emptor. Section 135.J of the Sindh Revenue Code explicitly lays down that an entry in the Register of Rights shall be presumed to be true until the contrary is proved. There are statements made by the deceased Pre-emptor with regard to his being the owner of the adjoining Plot No,12, through his ancestors Ibrahim Khan and Shehar Bano (his father and paternal-grandmother) respectively. The fact deposed to by him to the effect that Ibrahim Khan was his father and Shehar Bano was his maternal-grandmother was not disputed. It was also not disputed that the said two persons, whose names were entered as Owners in the Record-of-Rights (Exh.6), were the full owners of the said plot. No evidence was led by the appellant and/or respondents Nos.2 to 6 to the contrary showing that the said plot was owned by someone else. In this view of the matter, I do not find any merits in the contentions of the learned counsel I for the appellant, which are hereby repelled for the above-noted reasons and the impugned judgments on this issue is upheld.
30. ' It was next contended by Mr. Zafar Alam Khan, learned counsel for the appellant that the findings recorded on issues Nos.3 and 4, reproduced above, by both the Courts below are unsustainable as, according to him, there had been an unreasonable and/or unnecessary delay in raising demands.
31. It need not take me long to repel! This contention as being unsustainable in view of the fact both these issues, being issues of fact, having been decided against the appellant by concurrent judgments of both the Courts below, cannot be agitated in Second Appeal before this Court. It is accordingly repelled.
32. ' Before parting with the case, I may make a mention of the fact that Mr. Feroze Khan, learned counsel for respondents Nos.2 to 6, (Sellers) also addressed the Court. He initially adopted the arguments of Mr. Zafar Alain Khan and then also attempted to show that the impugned judgments of the Courts below are not sustainable. While doing so Mr. Feroze Khan lost sight of the legal proposition that having failed to file an appeal against the impugned judgments, it was not open to them to the respondents Nos.2 to 6 to question their validity. They could only support the judgment on any ground, but cannot assail their legality or propriety.
33. ' For the foregoing reasons, the appeal is held to be devoid of force and it is dismissed accordingly with no order as to costs.
34. ' The above are the reasons for the short order of dismissal of appeal passed upon the conclusion of the hearing of the arguments.