K.S.JHAVERI, J. - (1.) By way of this appeal, the appellants have assailed the judgment and order of the learned Single Judge dt. 12.2.2008 whereby learned Single Judge has dismissed the writ petition which has been filed against the order of Board of Revenue and confirmed the order of the authorities.
(2.) Counsel for the appellants has raised following contentions which reads as under:- 2. 1 The provisions relevant for decision of this case are Section 15 and 19 of Rajasthan Tenancy Act. Relevant portions of which are quoted below:- Section 19 - Conferment or rights on certain tenants of Khudkasht and sub-tenants:-(1) Every person who, at the commencement of this Act,- (a) was entered in the annual registers then current as a tenant of Khudkasht or subtenant of land other than gove land, or (b) was so entered but was a tenant of khudkasht or sub-tenant of land, other than grove land, shall, as from the date of commencement of the Rajasthan Tenancy (Amendment) Act, 1959, hereinafter in this Chapter referred to as the appointed date, become, subject to the other provisions contained in this chapter, the khatedar tenant of such part of the land held by him. Section 15- Khatedar tenants 1. Subject to the provisions of Section 16 and clause (d) of sub-section (1) of section 180- Every person who, at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of Khud Kasht or who is after the commencement of this Act admitted as a tenant otherwise then as a sub-tenant or a tenant Khud Kasht or an allottee....... Thus under Section 15 persons who are recorded as tenants at the time Rajasthan Tenancy Act came into force (15.10.1955) and persons who are admitted as tenants after commencement of the Act are recognized as khatedar tenants. Sub-tenants are specifically excluded. Section 5(43)- Tenant shall mean the person by whom rent is, or, but for a contract, express or implied would be payable. 2. 2 Plaintiffs Pratap and Panchu filed a suit for declaration of khatedari rights and permanent injunction in 1967 in respect of 27 Bighas land of Khasra No.113 to 118 and 165 (Old Numbers 72-78 and 133). It was inter-alia stated in para 2 that they are cultivating the land for long and paying land revenue. In para 3 it was stated that for this reason they are khatedar of the land. In para 4 it was stated that they are in cultivatory possession. In para 5 it was stated that the defendant no.1 is recorded as khatedar of the land which they came to know from Patwari. In para 7 it was mentioned that the defendants have been wrongly entered as khatedars in conspiracy with the officers. In para 8 it was stated that the defendant no.1 has sold the land to defendant no.2 and 3 by registered sale deed. Thus it is clear that it was never pleaded (1) that the plaintiffs are recorded khatedars on the date the Tenancy Act came into force or that they have been admitted as tenant after coming into force of the Act. (2) It was also never pleaded that they are sub-tenants of defendant no.1. 2. 3 In the written statement it was inter-alia stated that the plaintiffs were never kept as sub-tenants. Rather it was stated that the defendant no.1 has been getting the land cultivated through defendant no.2 - Ram Pratap by keeping 'Hali' (servants). It was stated that defendant no.1 was khatedar and he wanted to sell the land and has actually sold to defendant no.2 by registered sale deed dated 01.03.1967. It was stated in para 6 that the plaintiffs came to defendant no.1 to purchase the land for Rs.4,000 but since they offered much less amount the land was sold to defendant no.2 and 3. Annoyed of it they have filed the suit. The plaintiffs also gave notice through their advocate by registered post (inland letter) on 25.01.1967 to defendant no.1 stating that there was agreement between the plaintiff and defendant was called upon to execute the sale deed. (The notice has been proved by the advocate Shri R.P. Gupta who was summoned in evidence). 2. 4 On 16.3.91, the Assistant Collector decreed the suit with observations that HINDI MATTER Thus the suit was decreed on the basis of Section 15 as well as Section 19 whereas Section 15 relates to recorded tenant and Section 19 provides for acquiring khatedari rights by a sub-tenant recorded as such on commencement of the Tenancy Act. Both are mutually exclusive and inconsistent. There is no pleading and finding that plaintiffs were recorded as tenants on the date Tenancy Act came into force. There is no pleading that plaintiffs were sub-tenants on the date Rajasthan Tenancy Act came into force and therefore entitled to acquire khatedari rights. The trial court did give any finding about notice Ex.A-2 given by the plaintiffs through their advocate by registered post for getting sale deed registered in their favour for purchasing the land. It has been totally ignored. 2. 5 On 12.8.94, the Revenue Appellate Authority observed that plaintiffs were in possession as per Khasra Girdawari of Samvat 2009 to 2012 and therefore they are entitled to khatedari rights under Section 15. Further held that although the plaintiffs have been recorded as sub-tenants but defendant Ganesh (purchaser) has admitted that Pratap was his Hali (servant). The Revenue Appellate Authority observed as under HINDI MATTER. 2. 6 Thus the Revenue Appellate Authority has invoked Section 15, in the alternative Section 19 or adverse possession for conferring khatedari rights on the plaintiff. Whereas Section 15 is attracted as neither plaintiffs were recorded as tenants on commencement of the Act nor they were admitted as tenants or allotted land after commencement of the Act. Section 19 is applicable as it was never the case of the plaintiffs that they were sub-tenants. Adverse possession was never pleaded. Rather the plea of adverse possession presupposes title of the opposite party i.e. they admit the defendant to be khatedar (plea of adverse possession cannot be taken by plaintiff). Thus all the three things are totally different and inconsistent. The averment with regard to notice (Ex. A-2) was noted at page 81 but no finding has been recorded. 2. 7 On 16.3.01, Board of Revenue dismissed the appeal with the following observation:- HINDI MATTER 2. 8 On 12.2.08 Learned Single Judge dismissed the writ petition. No finding has been recorded independently. It has been observed that learned courts below have concurrently recorded finding on the question of possession of the plaintiff/respondents. All the courts have held that the plaintiff/respondents were in possession in Samvat 2012 i.e. 15.10.55 when Rajasthan Tenancy Act was enforced. Even if the plaintiffs are accepted as Hali/shikmi of the predecessor in title of the petitioners the learned courts held that they would still be entitled to khatedari rights by virtue of Section 19. Thus Hali and Shikmi have been treated as synonymous whereas Hali is a servant and Shikmi is a sub-tenant. It is the case of the plaintiffs that they were sub-tenants as on 15.10.55. Mere possession is neither sufficient for Section 15 nor for Section 19, even rent receipts which have been referred are of 1959, 1961, 1962 and 1964 which are after the Tenancy Act came into force. All the rent receipts are in the name of Ganesh Ram. The following documents show khatedari rights of the defendant no.1 and his predecessor:- Register Chakbandi Samvat 1994 to 2003 (Year 1939 to 1946) Ex. 3 Khatauni Bandobast Samvat 2015 to 2034 (Year 1958 to 1977) Ex. 4,5,6 Dhal Banchh- Samvat 2015, 2017, 2019 (Ex. A-5, A-6, A-7) Jamabandi 2017-2022 (Ex.D-2) Girdawari Samvat 2009-2012 Girdawari Samvat 2015-2017 Girdawari Samvat 2018-2019 (The Patwari in his statement has clearly said that the name of plaintiffs does exist in original Khasra Girdawari of Samvat 2009-2012. 2. 9 The contention of the appellants is that the judgments of the authorities and learned Single Judge are vitiated on following grounds:- (a) Not appreciating the scope of Section 15 which applies to a person recorded as tenant as on 15.10.1955. In support of his contention, he has relied upon the following judgments:- In Nandlal and ors. v. Board of Revenue and ors. reported in 2000 (1) RLR 416 , it has been held as under:- 13. In the case at hand, the petitioners claimed themselves to be khatedar tenants on the basis of their alleged possession according to the khasra Girdawari of Samwat Year 2009 to 2014. In my considered view, Khasra Girdawari is a record of rights as rightly held by the Board of Revenue in its judgment (Ann.3) and this does confer any title or khatedari rights to him, and no such rights accrue to the petitioner on the basis of long or continuous possession or Khasra Girdawari. Even by mere possession, khatedari rights cannot accrue to the petitioners as they have/had to establish which they have failed to do so as rightly held by the Board, that they were admitted as tenants after the commencement of the Tenancy Act or they had acquired Khatedari rights by operation of law. The petitioners have never proved to have paid rent by producing rent receipts, and jamabandi etc. I do find any justification for taking contrary view arrived at by the Assistant Collector and the Board. Both the trial court and the Board on the basis of the evidence on record have rightly held that the petitioners had never been recorded and acquired khatedari rights of the land in dispute and on the other hand jamabandi of Samvat Year 2014 (Ann.R4) proved the land in dispute having been recorded/entered as Siwai Chak in Samvat Year 2014 itself and therefore, out of 40 bighas of land in dispute, 28 bighas of land of Khasra No.53 were allotted to respondent No.4 to 10 who were landless persons on 18.9.75 by giving possession thereof to them on 26.9.75 and balance land of Khasra No.53 remained as Siwai Chak. This position has been challenged for the first time in the year 1976 when Siwai Chak land as aforesaid was allotted to the respondent No.4 to 10 after declaring and reversing the land as pasture land, the petitioners filed suit u/s 88,89 and 188 of the Tenancy Act which was rightly dismissed by the trial court. The petitioners failed to prove that they have been in possession of Khatedari rights over the land in dispute of Khasra No.53 as tenant and they have been admitted to the tenant by the land holders (State Government in their case) since Samvat Year 2012. They further, failed to prove that they have paid rent as tenant to the State Government. Therefore, the petitioners do fulfill pre-requisite conditions so as to acquire khatedari rights and to be admitted as tenants of the land of khasra No.53 in dispute as contemplated in Sections 13, 15 and 19 of the Tenancy Act. Hence this writ petition must fail. In Rambhool Singh v. The State 1962 RLW 406 , it has been held as under:- 5. The first point for determination in this writ petition is whether Ghisa acquired the khatedari right under Sec. 15 of the Act. From the facts and circumstances narrated above it is clear that Ghisa had been dispossessed from the land in dispute on the 27th July, 1952 after the expiry of the period of lease. We may take it for the purposes of this case that he was dispossessed forcibly. Nonetheless the fact remains that he was no longer in possession of the filed after 27th of July 1952. Subsequently he obtained possession of the land on the 20th September, 1955 in execution of the order of reinstatement passed in his favour by the Sub Divisionsal Officer. This Court, however, quashed this order as it was based on the erroneous view of land that Ghisa was entitled to a relief u/s 7 of the Ordinance. The order of the Sub Divisional Officer for reinstatement and the subsequent order of the Board of Revenue confirming the order of the Sub Divisional Officer were in the view of this court based on the wrong interpretat on the notification referred to this above. Had these two orders been passed Ghisa would have been put in possession of the land in dispute. Both these orders having been quashed by this Court Ghisa could rely on the possession obtained under these orders for deriving benefit u/s 15 of the Act. These orders could confer any benefit on Ghisa to the disadvantage of the petitioner. The well-known principle of law is that the acts of the court should be construed to the disadvantage of any of the parties. In Rodger v. Comptoir D. Escompte de Paris (2), Lord Cairns observed:- One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitors and when the expression "the act of the Court" is used it does mean merely the act of the primary court or of any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter to the highest court which finally disposes of the case." As an illustration of this principle of law we may refer to Dagdu and ors. v. Kalu in which the facts were that in a suit brought to recover possession of certain land the defendant pleaded limitation. He had held possession of the land adversely to the plaintiff from 1881 upto the 2nd October 1895 when the suit was brought with the except of a period of three years (viz 4th April, 1892 to 9th April, 1895) during which he was dispossessed under a decree of Civil Court of first instance obtained against him by a third person, which being reversed in appeal he was restored to possession on the said 9th April, 1895. It was held that the wrongful possession given by the Court to a third person did (after possession had been restored to the defendant) prevent the statue from running during its continuance against the plaintiff and in favour of the defendant. This case was followed by this court in Mst. Asa Bai v. Prabhu Lal and ors. We therefore of the opinion on the 15th Oct. 1955 when the Rajasthan Tenancy Act came into force Ghisa was in possession of the disputed land as a tenant and he cannot take advantage of that provision. The Board of Revenue has wrongly held that khatedari rights came to be conferred on Ghisa u/s 15 of the Act as he was tenant of the land in dispute on 15th Oct. 1955. Ghisa cannot therefore claim possession of the disputed land on the ground that he had become a khatedar tenant of land. (b) Not appreciating that section 19 applies to a sub-tenant as on 15.10.55. This is even case of plaintiffs that they were subtenants. Suit has been decreed beyond pleadings. (c) The scope of section 15 and 19 is mutually exclusive. Both cannot be applied at the same time. (d) The plea of adverse possession was never taken by the plaintiff. Even otherwise plaintiff cannot take plea of adverse possession and in this regard, he has relied upon the decision of Supreme Court in Gurudwara Sahib v. Gram Panchayat Village Sirthala and Anr. (2014) 1 SCC 669 wherein it has been held as under:- 8. However, we also find from the reading of the judgment of the High Court that the High Court has refused the injunction observing that the Appellant was entitled to the same as it is the Gram Panchayat which is the owner of the property in dispute and as the Appellant is in possession without any right, it has no right to seek injunction against the Gram Panchayat. This finding is totally perverse and, in fact, unnecessary. In the first instance, there was no occasion or reason for the Appellant's counsel to seek this prayer in the Second Appeal. As pointed out above, the relief of injunction had already been granted by the Civil Court and this portion of the decree had been challenged by the Respondents. Decree to this extent in favour of the Appellant had attained finality. The First Appellate Court also specifically recorded this fact and observed that by challenging the judgment and decree passed by the learned Civil Judge, the Respondents accepted that the Appellant was in adverse possession of the land since 13.4.1952. We, thus, clarify that observations of the High Court that the Appellant is entitled to injunction, were unnecessary and beyond the scope of the appeal. 9. As the Appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the Appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the Appellant seeking relief of declaration has been dismissed, in case Respondents file suit for possession and/or ejectment of the Appellant, it would be open to the Appellant to plead in defence that the Appellant had become the owner of property by adverse possession. Needless to mention at this stage, the Appellant shall also be at liberty to plead that findings of issue No. 1 to the effect that the Appellant is in possession of adverse possession since 13.4.1952 operates as res-judicata. Subject to this clarification, the appeal is dismissed (e) By plea of adverse possession impliedly title of opposite party stands admitted.
(3.) Counsel for the appellants has relied upon the following decisions:- In Binapani Paul v. Pratima Ghosh and Ors. (2007) 6 SCC 100 , it has been held as under:- 39. We are also really concerned with such a situation as the situation had undergone a sea change after coming into force of the Transfer of Property Act. The Transfer of Property Act prescribes that any clog on transfer of property right to transfer would be void. Dayabhaga does prohibit gift of immovable property in favour of his wife by her husband. It merely says that Dayabhaga did recognize it to be her stridhan. It was only for the purpose of inheritance and succession. The same has nothing to do with the Benami Transaction of the Property and to determine the nature of transaction. 40. Burden of proof as regards the benami nature of transaction was also on the respondent. This aspect of the matter has been considered by this Court in Valliammal (D) By LRS. v. Subramaniam and Ors. AIR 2004 SC 4187 wherein a Division Bench of this Court held: 13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra , Krishnanand Agnihotri v. State of M.P. : 1977 CriLJ 566 , Thakur Bhim Singh v. Thakur Kan Singh , Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra, SCC p. 7 , para 6) 14. The above indicia are exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. 18. It is well settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original plaintiff did have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is at all acceptable. The source of money is at all traceable to the plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the plaintiff to examine the relevant witnesses completely demolishes his case. In T. Anjanappa and Ors. v. Somalingappa and Anr. 2006 (7) SCC 570 , it has been held as under:- It is well recognized proposition in law that mere possession however long does necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action. The High Court has erred in holding that even if the defendants claim adverse possession, they do have to prove who is the true owner and even if they had believed that the Government was the true owner and the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have been established. If the defendants are sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do arise. Above being the position the High Court's judgment is clearly unsustainable. Therefore, the appeal which relates to OS 168/85 is allowed by setting aside the impugned judgment of the High Court to that extent. Equally, the High Court has proceeded on the basis that the plaintiff in OS.286/88 had established his plea of possession. The factual position does appear to have been analysed by the High Court in the proper perspective. When the High Court was upsetting the findings recorded by the court below i.e. first appellate Court it would have been proper for the High Court to analyse the factual position in detail which has been done. No reason has been indicated to show as to why it was differing from the factual findings recorded by it. The first appellate Court had categorically found that the appellants in the present appeals had proved possession three years prior to filing of the suit. This finding has been upset. Therefore, the High Court was justified in setting aside the first appellate Court's order. The appeal before this Court relating to O.S. 286 of 1988 also deserves to be allowed. Therefore, both the appeals are allowed but without any order as to costs. The appeals are disposed of accordingly. In P. Periasami (Dead) by Lrs. v. P. Periathambi and Ors. (1995) 6 SCC 523 , it has been held as under:- 3. The pristinely legal question, as discernible herein before, is whether under Hindu law selfacquired property of a father goes on his death to his sons (in the absence of grand-sons) in a joint Hindu family way, in joint tenancy, or does it descend by inheritance to them in well defined shares as tenants-in-common. On this question there has been grave conflict of opinion in the High Courts and a lot many precedent of binding value are available. In Madras, however, the law in this respect bears a strain, settled way back by a Full Bench in a decision reported in AIR 1921 8 Mad 168 Viravan Chettiar v. Srinivasachariar , wherein the following passage of relevance appears in the opinion expressed by Kumaraswami Sastri, J. So far as the text of the Mitakshara dealing with the rights of the sons in their father's selfacquisitions it has been decided by their Lordships of the Privy Council in Balwant Singh v. Rani Kishore (1898) 20 All. 267 : 25 I.A. 54 : 2 C.W.N. 273 : 7 Sar. 279 that the text. though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should be made without convening all the sons. They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made. is only a moral precept and a rule of law capable of being enforced. As pointed out in Madan Gopal v. Ram Buksh (1863) 6 W.R. 71 and Jugmohandas Mangaladas v. Sir Mangaldoss Nathubhoy (1889) 10 Bom. 528 the son acquires no legal rights over his father's self-acquisitions by .reason of the text of the Mitakshara (Ch.I, Ssl. 27) but that his right is imperfect one incapable of being enforced at law. It is difficult to see how there can be any coparcenary between the father and the sons as regards self-acquired property over which the sons have no legal claim or enforceable rights. Coparcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable at law and ere moral injunction can hardly be the foundation of a legal right. As observed by the Privy Council in Rani Sartaj Kuari v. Deoraj Kuari (1888) 10 All. 272 : 15 I.A. 51 : 5 Sar. 139 the property in the paternal or ancestral estate acquired by birth under the Mitakshara Law is so connected with a right to partition that it does exist where there is no right to it. A contention was raised during the course of the argument before the Privy Council in Raja Chelikant Venkayamma v. Raja Chelikani Venkataramanayamma (1902) 25 Mad. 678 : 29 I.A. 156 : 12 M.L.J. 299 : 8 Sar. 286 that sons acquire a right by birth in the father's self-acquired property. Lord macnaghten observed that he did quite understand what that right was and observed "He is his father's son and if his father does dispose of, it will come to him; but is it anything more than a Spes?" So far as a father's self-acquisitions are concerned, the son, though undivided , has only spes succession is and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father, As observed by West and Buhler in a passage (Book 2 Introduction page 19) which was approved in Nand Kumar Lata v. Moulvi Reazuddeen Hussain 10 B.L.R. 183 . ancestral property may be said to be co-extensive with the objects of apratibandha daya or unobstructed inheritance. (Emphasis supplied by us) 4. Contrary views have been expressed in Mst. Ram Dei v. Mst. Gyarsi : AIR 1949 All 545 and many other cases to which reference need be made. In A.I.R. 3959 Madras 253, however, occasion arose to reconsider the above-referred to view of the Full Bench of the Madras High Court, but the learned Judges refrained from doing so for by then the Full Bench case of 1921 had been treated as stare decisis. Likewise after a lapse of more than half a century, we would consider it prudent, just for the sake of uniformity to resolve the conflict raging in the High Courts on this question, more so when the orthodox Hindu Law on the subject is itself now in tumble because of the enactment of the Hindu Succession Act, 1956 and in particular of Section 19 thereof, which says that if two or more heirs succeed together to the property of an intestate they shall take the property- (a) save as otherwise expressly provided in this Act, per capita and per stripes; and (b) as tenants-in-common and as joint tenants. 5. In view of the interpretation put by the Full Bench of the Madras High Court that the sons in such a situation would get self acquired property of their father by inheritance, having the status as tenants-in-common, they could thus treat such properties in their hands, even though joint in enjoyment, as joint Hindu family properties. Likewise the income derived therefrom, if employed to purchase other property, would cloak the new acquisition with the character of joint Hindu family property but may otherwise be joint properties. We would rather decide this matter on this principle, and we do so accordingly, to hold that the properties which came from the elder, self acquired as they were, and there being no grandsons, cannot be held by the parties to be joint Hindu family properties but as joint properties simpliciter, capable of partition on that basis. 6. With regard to the accreted property, there is a reference in the judgment under appeal relating to some accounting; after recording the finding that the defendants have failed to prove that that property was in their adverse possession. This is a finding of fact which need be disturbed, as it has been sought to, in the cross appeal. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property. The failure of the plea has obvious results. If the parties herein were coowners of that property and the said property had been purchased from the income derived from joint property, then obviously the same has to be accounted for as joint property and as joint Hindu family property. It was like property jointly purchased by co-owners without attracting the rule of succession by way of survivorship. On this clarification, the judgment of the High Court is cleansed of the little vagueness about this particular which accidentally seems to have crept in while dealing with this aspect of the case.;