# BANGALORE v. T. ADINARAYAN SETTY

- **Citation:** [1959] Supp. 1 S.C.R. 404
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 138 of 1955
- **Bench:** Jafer Imam, S. K. Das, J. L. Kapur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bangalore-v-t-adinarayan-setty-1545
- **Pages:** 11

## Headnote

Land Acquisition-Principles of valuation-Exemplars, use
of-Land Acquisition Act, I894 (l of I894), ss. II and 23.
Certain land belonging to the respondent was compulsorily
acquired by the Government for a maternity hospital.
Most of
the land consisted of building sites but there was a building on a
small portion of the land and a portion was low lying-land. The
Special Land Acquisition Officer held, on the basis of the value of
sites previously sold by the respondent, that the market value of
the land was Rs. IO/- per sq. yard and awarded a sum of
Rs. l,41,169/- to the respondent as compensation. He did not
give any compensation for the low lying land or for the building.
Against this award the respondent raised an objection and a
reference was made to the District Judge. The District Judge
accepted the rate of Rs. IO/- per sq. yard as fair, reduced the
amount of deductions for providing electric installations by
Rs. lO,ooo/- and allowed a sum of Rs. 10,000/- for the low lying
area at the rate of Rs. 3/- per sq. yard, thereby increasing the
amount of compensation by Rs. 20,000/-. Not being satisfied the
respondent appealed to the High Court. The High Court held
that the rate of compensation for the land except the low lying
portion, should be Rs. 13/8/- per sq. yard and for the low lying
portion it should be Rs. 8/8/- per sq. yard. It further awarded
a sum of Rs. 7,000/- for the building. In arriving at the figure
of Rs. 13/8/- the High Court took into account only four sale
transactions which had been made by the respondent at the rates
of Rs. 12, 15, 14 and 7/8/- per sq. yard but did not take into consideration two other, transactions which had been made by the
respondent at the rates of Rs. 6/8/- and Rs. 10 per sq. yard. . It
calculated the average of the four transactions to be Rs. 12/2/-
per sq. yard and then took a second average between Rs. 15/-,
..
(1) S.C.R. SUPREME COURT REPORTS
405
which was the maximum price obtained by the respondent and
z958
Rs. 12/2/- and arrived at the figure of Rs. 13/8/-. The High
Court was also influenced by considerations such as the purpose The Special Land
for which the land was acquired, the report of certain medical Acquisition Officer,
authorities as· to the unsuitability of the land for the maternity
Ban1:alore
hospital and the delay in putting the land to the use for which
v.
it was acquired.
T. Adinarayan
Held, that with regard to the valuation of the land, other
Setty
than the low lying portion, the High Court misdirected itself by
taking into account extraneous considerations and had committed
an error of principle in arriving at the figure of Rs. 13/8/- by
adopting a wrong method of ascertaining the market value.
The High Court ought to have taken the average of all the six
sale transactions and arrived at the proper valuation of Rs. II/-
per sq. yard. There was no justification for ignoring two of the
sale transactions or for taking a second average.
With respect
to the compensation for the low lying land and the building
there was no error of princi pie or otherwise in the findings of
the High Court and no interference was called for.

## Text

404
SUPREME COURT REPORTS [1959] Supp.
x958
The appellant will have his costs here and in the court
Commissioner of below·
ln,omeo/ax
Appeal allowed.
•
v.
-Teja Singh
V enkataram a
Aiyar ] .
November 7.
THE SPECIAL LAND ACQUISITION OFFICER,
BANGALORE
v.
T. ADINARAYAN SETTY
(JAFER IMAM, S. K. DAS and J. L. KAPUR, JJ.)
Land Acquisition-Principles of valuation-Exemplars, use
of-Land Acquisition Act, I894 (l of I894), ss. II and 23.
Certain land belonging to the respondent was compulsorily
acquired by the Government for a maternity hospital.
Most of
the land consisted of building sites but there was a building on a
small portion of the land and a portion was low lying-land. The
Special Land Acquisition Officer held, on the basis of the value of
sites previously sold by the respondent, that the market value of
the land was Rs. IO/- per sq. yard and awarded a sum of
Rs. l,41,169/- to the respondent as compensation. He did not
give any compensation for the low lying land or for the building.
Against this award the respondent raised an objection and a
reference was made to the District Judge. The District Judge
accepted the rate of Rs. IO/- per sq. yard as fair, reduced the
amount of deductions for providing electric installations by
Rs. lO,ooo/- and allowed a sum of Rs. 10,000/- for the low lying
area at the rate of Rs. 3/- per sq. yard, thereby increasing the
amount of compensation by Rs. 20,000/-. Not being satisfied the
respondent appealed to the High Court. The High Court held
that the rate of compensation for the land except the low lying
portion, should be Rs. 13/8/- per sq. yard and for the low lying
portion it should be Rs. 8/8/- per sq. yard. It further awarded
a sum of Rs. 7,000/- for the building. In arriving at the figure
of Rs. 13/8/- the High Court took into account only four sale
transactions which had been made by the respondent at the rates
of Rs. 12, 15, 14 and 7/8/- per sq. yard but did not take into consideration two other, transactions which had been made by the
respondent at the rates of Rs. 6/8/- and Rs. 10 per sq. yard. . It
calculated the average of the four transactions to be Rs. 12/2/-
per sq. yard and then took a second average between Rs. 15/-,
..
(1) S.C.R. SUPREME COURT REPORTS
405
which was the maximum price obtained by the respondent and
z958
Rs. 12/2/- and arrived at the figure of Rs. 13/8/-. The High
Court was also influenced by considerations such as the purpose The Special Land
for which the land was acquired, the report of certain medical Acquisition Officer,
authorities as· to the unsuitability of the land for the maternity
Ban1:alore
hospital and the delay in putting the land to the use for which
v.
it was acquired.
T. Adinarayan
Held, that with regard to the valuation of the land, other
Setty
than the low lying portion, the High Court misdirected itself by
taking into account extraneous considerations and had committed
an error of principle in arriving at the figure of Rs. 13/8/- by
adopting a wrong method of ascertaining the market value.
The High Court ought to have taken the average of all the six
sale transactions and arrived at the proper valuation of Rs. II/-
per sq. yard. There was no justification for ignoring two of the
sale transactions or for taking a second average.
With respect
to the compensation for the low lying land and the building
there was no error of princi pie or otherwise in the findings of
the High Court and no interference was called for.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
138 of 1955.
Appeal from the judgment and decree dated October 15, 1953, of the Mysore High Court at Bangalore
in Regular Appeal No. 255 of 1950-51, arising out of
the order dated September 18, 1950, of the Court of
the District Judge, Bangalore, in Misc. Case No. 39 of
1947-48.
G. Ohannappa, Assistant Advocate-General, Mysore,
R. Gopala Krishnan and T. M. Sen, for the appellant.
A. V. Viswanatha Sastri, M. A. Rangaswami, K. R.
Sarma and K. R. Choudhury, for the respondent.
1958. November 7.
The Judgment of the' Court
was delivered by
S. K. DAs, J.-This appeal by the Special Land
s. K. Das J.
Acquisition Officer, Bangalore, has been
brought
to this Court on a certificate granted by the High
Court of Mysore, and is from the decision of the said
High Court dated October 5, 1953, in a regular appeal
from an order made by the 2nd Additional District
Judge, Bangalore, on September 18, 1950, on a reference under s. 18 of the Land Acquisition Act (hereinafter referred to as the Act).
The facts so far as they are relevant to the appeal
before us are these. An area. of about 51,243 square
406
SUPREME COURT REPORTS [1959] Supp.
z958
yards of land was acquired by Government under
Th
-~ L
Notification No. M.11054 Med. 80-45-25 dated April 16,
Acq:.i;,::: 0;;:,.1946, for development of the Appiah Naidu Maternity
Bangalo"
Home at Ma!leswaram, Bangalore City, into a Materv.
nity Hospital. There were eight owners interested in
T. Adinaraya" the property acquired, out of whom two objected to
Setty
the award made by the Special Land Acquisition
s. Jc Das J.. Officer, now appellant before us. One of those two was
T. Adinarayana Shetty, a diamond merchant of Mysore
Uity. Originally, he was the respondent before us, and
on his death his son and legal representative has been
brought into the record as the sole respondent to this
appeal. The deceased respondent Adinarayana Setty
(hereinafter called the respondent) was interested in
48,404 sq. yards out of the total area, and it may be
stated here that there is no dispute before us that out
of the said 48,404 sq. yards an area of about 3,000 sq.
yards consists of land which has been variously
characterised as a depression or a pit or low-lying land
(called 'halla' in the local vernacular language). Out
of the total amount of compensation a.warded by the
Special Land Acquisition Officer, a sum of Rs. 1,41,169/-
was awarded to the respondent. The Special Land
Acquisition Officer proceeded on the following ba£is for
his award. Firstly, he found that the land value in
and around Bangalore City had increased in recent
years owing to the war and the respondent had paid
to the Deputy Commissioner, Bangalore District, a
sum of money called a con version fine for sanctioning
a scheme of converting the land into non-agricultural
land. Thereafter, a layout for building sites was prepared and approved by the Municipality and the respondent sold a few of the sites shown in the layout to
some purchasers. This was done before the publication of the preliminary notification of acquisition ; but
the sale of further building sites was stopped after the
said publication. Secondly, the Special Land Acquisition Officer took into consideration the value of the
sites sold by the respondent and came to the conclusion
that Rs. 10/- per sq. yard was the market value of the
land in. question. He awarded to the respondent compensation for approximately 48,404 sq. yards at the
(1) S.C.R. SUPREME COURT REPORTS
407
rate of Rs. 10/- per sq. yard, but after deducting thereI958
from an area of 26,248 sq. yards which, according to
-.
the Special Land Acquisition Officer, was required for AThe specialOL'ffiand
.
.
cquis1tion
cer,
makmg roads and drams as per the layout scheme.
Bangalore
The total amount thus calculated came to Rs. 2,21,563
v.
and odd and from this a sum of H.s. 98,807 was again
T. Adinarayan
deducted as representing the expenditure which would
Setty
be reguired for making roads and drains. The net
amount was thus found to be Rs. 1,22,756 and odd
s. Jc Das 1·
and adding 15% as the statutory compensation payable to the respondent the total amount awarded by
the Special Land Acquisition Officer to the respondent
came to Iis. 1,41,169/-.
Against this award, the respondent raised an objection, and a reference was accordingly made to the District Judge of Bangalore
under s. 18 of the Act.
This reference was heard by
the 2nd Additional District Judge who, by his order
dated September 18, 1950, came to the following conclusions:-
(i) that the rate awarded by the Land Acquisition
Officer at Rs. 10/- per sq. yard was fair and should be
upheld;
(ii) that a sum of Rs. 10,000/- for providing electric installation out of the sum of Rs. 98,807/- deducted by the Land Acquisition Officer from the compensation payable to the respondent should not be
deducted; and
(iii) that with regard to the area of the low-lying
land which was completely excluded by the Land
Acquisition Officer, the respondent should get at the
rate of Rs. 3/- per sq. yard or approximately a sum of
Rs. 10,000/-.
In other words, the learned Additional District Judge
increased the compensation in favour of the respondent
by a sum of about Rs. 20,000/-
Not being satisfied, the
respondent preferred an appeal to the High Court of
Mysore.
The learned Judges ofthe High Court found
that the proper compensation for the land, except the
portion characterised as low-lying, should be H.s. 13/8/-
per sq. yard and as to the low-lying portion it should
be r0duced by Rs. 5/- per sq. yard inasmuch as a sum
of Rs. 15,000/- was necessary, according to the
408
SUPREME COURT REPORTS
[1959] Supp.
'958
evidence given in the case, for filling it up ; in other
Th• special Land words, the High Court awarded compensatio_n at the
AcquisUion Offim, rate of Rs. 8/8/- per sq. yard for the low-lying land.
Bangalm
The High Court also reduced the area which had to be
v.
deducted for making roads, etc., according to the layout
T. Adinarayan scheme from 26,248 sq. yards to 12,101 sq. yards. It
5'
11Y
also reduced the layout charges to Rs. 64,432/-. The
s. J(. Das J.
High Court added to the compensation a sum of
Rs. 7,000/- as the value of a building which the respondent had constructed on one of the sites on the finding that the construction was made prior to the preliminary notification. In this respect the High Court
departed from the finding of the Land Acquisition
Officer that the building was put up after the publication of the preliminary notification. The total amount
of compensation which the High Court awarded came
to about Rs. 4,80,000 and odd.
As the judgment of the High Court was a judgment
of reversal and the appellant felt dissatisfied with it, a
certificate of fitness was asked for and was granted by
the High Court on July 6, 1954.
The present appeal
has been brought to this Court in pursuance of that
certificate.
The appellant has confined his appeal to the following three points: (1) payment of compensation of a
sum of Rs. 7,000/- for the building said to have been
constructed before the publication of the preliminary
notification ; (2) payment of compensation at Rs. 8/8/-
per sq. yard for the low-lying land (ha.Ha); and (3)
payment of compensation at Rs. 13/8/- forthc remaining land after deducting the area for making roads and
buildings. We may state that there is no dispute
before us now as to the area which should be so
deducted and also as to the amount of layout charges,
as the findings of the High Court on these two points
have not been challenged before us.
On behalf of the respondent our attention has been
drawn to the decisions of the Privy Council in Charan
Das v. Amir Khan('), Narsingh Das v. Secretary of
State for India (2) and Nowroji Rustomji Wudia v.
(1) (1920) 47 I.A. 255.
(2) (1924) 52 I.A. 133.
(1) S.C.R.
SUPREME COURT REPORTS
409
Bombay Government (1).
On these decisions it is sub1958
mitted by learned counsel that though s. 26 of the Act
was amended in 1921 by insertion of sub-s. (2) which AThe _
5P
1
~ciaZ0
f;nd
d
cquisi ion
»"cer
says that every awar shall be deemed to be a decree
Bangalore
'
and thus an appeal therefrom must be considered and
v.
determined in the same manner as if it is a judgment
T. Adinarayan
from a decree in an ordinary suit the established pracSetty
tice of the Privy Council ha.s been not to interfere
S. K. Das].
with a finding on the question of valuation, unless
there is some fundamental principle affecting the
valuation which renders it unsound. The practice, it
is stated, was based on two considerations: first, that
the courts in India were more familiar with local conditions and circumstances on which the valuation
depended and, secondly, the Privy Council found it
necessary to limit the extent of the enquiry in order
to spare the parties costly and fruitless litigation. On
behalf of the appellant it is submitted that this Court
has no doubt adopted the practice that it will not ordinarily interfere with concurrent findings of fact, but
this Court has no such established practice as was
adopted by the Privy Council in valuation cases even
where a difference of opinion has occurred between two
courts upon the number of rupees per yard to be allowed for a plot of land. He has further submitted that the
reasons for the practice adopted by the Privy Council
do not apply with equal force to this Court.
In view of the facts of this case and the opinion
which we have formed after hearing learned counsel
for both parties, we do not think it necessary to make
any final pronouncement as to the practice which
this Court should adopt in a valuation case where two
courts have differed.
We are content to proceed in
this case on the footing that we should not interfere
unless there is something to show, not merely that on
the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be
supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied.
(r) (r925) 52 I.A. 367.
52
410
SUPREME COURT REPORTS [1959] Supp.
z95B
We are satisfied that there is no error of principle or
Th -.
1 L
d otherwise in the findings of the High Court as to the
eSpecia
an fi
.
d"
fh
1 A-'
Acquisition Officer rst two pomts urge m support o t e appea .
s oO
Bangalore
·the construction of the building for which a compensav.
tion of Rs. 7,000 has been a.warded, the clear finding
T. Adinarayan of the High Court is that it was constructed prior to
5' 11Y
the preliminary notification. It has been further
stated before us that the building is in actual occupas. K. Das ,l.
l"
h
tion of the medical department. Learned counse ior t e
appellant has taken us through the evidence on the
question of construction of the house and the application for a licence for building the said house which
was made by the respondent to the Bangalore Municipality. We are unable to hold that that evidence has
the effect of displacing the clear finding of the High
Court.
As to the low-lying land, we consider that the High
Court has given very good reasons for its finding.
Admittedly, the area. of the low-lying land (halla) is
about 3,000 sq. yards. The Land Acquisition Officer
valued it at Rs. 3 per sq. yard. A sum of Rs. 15,000
has been deducted from the compensation payable to
the respondent on the ground that that amount will
be required for filling up the low-lying land and converting it into building sites. Therefore, the position
is that the respondent has not only been made to part
with 3,000 sq. yards of land at 3 per sq. yard, but he
has also been made to pay Rs. 15,000 for filling up
the land. If these two figures are added, even then
the market value of the land comes to about Rs. 8 per
sq. yard. This is so even if we do not follow the
method adopted by the High Court that the sum of
Rs. 15,000 for 3,000 sq. yards gives an average of
Rs. 5 per sq. yard and that amount should be deducted from the rate of Rs. 13-8-0 per sq. yard fixed as
the proper compensation for the remaining land. We
are of the opinion that on the materials before us the
value per sq. yard fixed by the High Court for the
low-lying land is fully justified even on adoption of
the method suggested by learned counsel for the
appellant. Learned counsel for the respondent has
referred us to the circumstance that some of the sales
(1) S.C.R. SUPREME COURT REPORTS
411
of building sites which the respondent had made apz95a
pertained to the low-lying land and he has further Th
h • d th
·
t
th t · t
't th
e Special Land
emp a:s1se
e
CI~CUID:S ance
a
JUS oppos1 e
e Acquisition Officer,
low-lymg land which IS at the eastern end of the
Bangalore
entire area, some houses had been built. We have
v •
. taken these circumstances into consideration, but do
T. Adinarayan
not think that the conclusion which learned counsel
Setty
for the respondent wishes us to draw follows therefrom. First of all, it is by no means clear that the
sales of the building sites at the low rate of l~s. 6-8-0
or thereabout appertained to the low-lying land only,
and, secondly, the mere circumstance that soi:ne buildings have been made on land opposite the low-lying
lands but on the other side of the road, does not
necessarily mean that the low-lying lands are as
valuable as the other land in the area. We are therefore of the view that the compensation fixed by the
High Court for the low-lying land is not vitiated by
any error of the kind which will justify our interference with it.
We now proceed to consider the third and main
point urged on behalf of the appellant, namely, the
rate of 13/8 per sq. yard for the other land in the area.
Learned counsel for the appellant has submitted before
us that the High Court has committed two fundamental errors in arriving at this finding.
Furthermore,
the High Court has been influenced by extraneous
considerations such as the purpose for which the land
was acquired, the report of certain medical authorities
as to the unsuitability of the land for the purpose for
which it was acquired, and the delay in putting the
land to the use for which it was acquired. We agree
with learned counsel for the appellant that these were
extraneous considerations which had no bearing on
the question of valuation and the learned Judges of
the High Court misdirected themselves as to the scope
of the enquiry before them wh~n they imported these
considerations into the question of valuation.
We
further think that the High Court committed an error
of principle in arriving at the figure Rs. 13/8 and the
error was committed by adopting a wrong method in
ascertaining the market value of the land at the
s. 1{, Das ].
412
SUPREME COURT REPORTS (1959] Supp.
fy58
relevant time. It is not disputed that the function of
The special Vwd the court _in awarding compensation under the Act is
Acquioition Office. to ascertam the market value of the land at the date of
Bangalore
·the notification under s. 4(1) !!ond the methods of valuav.
tion may be (1) opinion of experts, (2) the price paid
T. Adinarnyan within a reasonable time in bona fide transactions of
Setty
purchase of the lands acquired or the lands adjacent
to the lands acquired and possessing similar advans. I<. Das J.
tagos and (3) a number of years' purchase of the actual
or immediately prospective profits of the lands acquired. In the case under our consideration the High
Court adopted the second method, but in doing so
committed two serious errors. There were altogether
seven transactions of alienation made by the respondent. One was a gift which must necessarily be excluded. The earli{lst of the sales was in favour of Munirathnam which was made on May 15, 1945. Another
was made on July 18, 1945. This-.was in favour of
Venugopal who was the husband of a grand-daughter
of the respondent. Four other transactions in favom
of Kapinapathy, Puttananjappa, Sha.manna and Raja.
gopal Naidu were made in August, 1945. The notifi.
cation under s. 4 of the Land Acquisition Act was
made on October 4, 1945. What the learned Judges
of the High Court did was to take only four out of the
aforesaid six transactions into consideration and then
to draw an average price therefrom. The learned
Judges gave no sufficient reason why two of the transactions were left out. In one part of their judgment
they said:
"The evidence discloses that the appellant has
effected four sales about a couple of months prior to
the date of preliminary notification and the rates
secured by him are Rs. 12, 15, 14 and 7/8 which on
calculation give an average of Rs. 12/2 per sq. yard ".
Why the transaction of May 15, 1945, which was at a
rate of Rs. 6/8 per sq. yard only was left out it is
difficult to understand. Similarly, the transaction of
July 18, 1945, was at the rate of Rs. 10 per sq. yard.
That also was left out.
We are of the view that this
arbitrary selection of four transactions only out of six
has vitiated the finding of the High Court. If all the
(1) $.C.R.
SUPREME COURT REPORTS
413
six transactions of sale are taken into consideration,
I958
the average rate comes to about Rs. 10/13 per sq. yard The special Land
only. Having arbitrarily discarded two of the trans- Acquisition Officer,
actions, the learned Judges of the High Court commitBangalore
ted another error in taking a second average. Having
v.
arrived at an average of Rs. 12/2 per sq. yard from
T. Adinarayan
Setty
the :four transactions referred to above, they again
took a second average between Rs. 15, which was the
s. K. Das J.
maximum price obtained by the respondent, and
Rs. 12/2. Having struck this second average, the
learned Judges of the High Court arrived at the figure
of Rs. 13/8.
No sound reasons have been given why
this second average was struck except the extraneous
reasons to which we have already made a reference.
It is obvious that the maximum price Rs. 15 per sq.
yard had already gone into the average when an
average was drawn from the four transactions. It is
difficult to understand why it should be utilised again
for arriving at the market value of the land in question.
We are of the view that if the aforesaid two
errors are eliminated, then the proper market value of
the land in question is Rs. 11 only. Learned counsel
for the appellant has drawn our attention to the claim
made by the respondent himself before the Land
Acquisition Officer (Ex. II). The respondent had therein said:
" Hence, under the st.anding orders compensation
has to be paid at rates for building land in the neighbourhood. This rate ranges from Rs. 10 to Rs. 12, an
average of Rs. 10 a sq. yard, as could be verified from
entries in the local Sub-Registrar's Office and Bangalore City Municipal Office. At any rate, I myself have
sold in the course of this year some six sites out of the
land proposed to be acquired for rates ranging from
Rs. 7 to Rs. 15 or on an average of Ri:!. 10 per sq.
yard. At this rate the compensation amount will be
Rs. 5,12,430 and adding the statutory allowance of
Rs. 76,860 at 15 per cent. on the compensation amount
on account of the compulsory nature of the acquisition, the total cost of the land will be Rs. 5,89,290 or
nearly six lakhs of rupees."
414
SUPREME COURT REPORTS [1959] Supp.
'958
The learned Judges of the High Court took the afore.
The special Land said claim to mean t_hat the a_verage rate was Rs_. 10
Acquisition Offim, per sq. yard, only if the entire area was takeu mto
B•ngalo"
consideration; but the rate would be different if small
v.
building sites were sold according to a layout scheme.
T. Adinarayan It is worthy of note, however, that in his claim the
Setty
1
1
h
l
respondent c ear y stated t at even as bui ding land
s. K. Das J.
the average rate in the neighbourhood ranged from
Rs. IO to Rs. 12 per sq. yard and he had himself sold
six building sites at an average rate of about Hs. 10.
per sq. yard. It is worthy of note that the six transactions to which the respondent referred were sales of
sriiall building sites. It appears to us, therefore, that
the High Court had in effect given the respondent a
rate more favourable than what he had himself
claimed.
We consider, therefore, that on a proper considera.
tion of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land in question should be
Rs. II per sq. yard.
The result, therefore, is that we allow this appeal to
this limited extent only, namely, the order of the High
Court will be modified by ,substituting the figure Rs. 11
per sq. yard for the figure Rs. 13/8 awarded by the
High Court as compensation to the respondent for
land other than the low-lying land.
We maintain
the order of the High Court that the parties will
receive and pay costs in proportion to their success
and failure, as now determined, in the courts below ;
but so far as the costs of this Court are concerned, the
parties must bear their own costs in view of their
divided success here.
Appeal parily allowed.