GANNU RAM SAHU Vs. SAMARU RAM

JUDGEMENT

(1.) This second appeal preferred by appellant/defendant No. 1 under Section 100 of the CPC was admitted for hearing by formulating the following substantial question of law: -

(2.) Plaintiff-Samaruram filed a suit for declaration of title and permanent injunction, in which defendant No. 1 also filed counter-claim and claimed decree of specific performance of the contract in addition to declaration of title on the basis of adverse possession. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 12. 11. 2003, dismissed the suit of the plaintiff for declaration of title and permanent injunction and allowed the counter- claim filed by defendant No. 1 granting decree of specific performance of the contract in his favour. On appeal being preferred by the plaintiff, the first appellate Court granted decree for declaration of title in favour of the plaintiff and set aside the decree of specific performance of the contract, against which, this second appeal under Section 100 of the CPC has been preferred by the original appellant/defendant No. 1, in which substantial question of law has been formulated which has been set-out in the opening paragraph of this judgment.

(3.) Mr. Ravindra Agrawal, learned counsel for the appellants/legal representatives of defendant NO. 1, would submit that the first appellate Court would not have interfered with the decree granted by the trial Court in view of appeal not being preferred before the first appellate Court along with court fee of Rs. 250/- against the decree of specific performance of the contract, as such, decree for specific performance of the contract has become final for non-payment of court fee as well as for not preferring the appeal against the decree granting counter-claim in his favour, as such, the decree to that extent deserves to be set aside.