RAJ NATH PANDEY Vs. JWALA PRASAD

JUDGEMENT

(1.) -I have heard Sri M. D. Singh 'Shekhar', senior advocate assisted by Sri D. K. Tripathi, learned counsel for the plaintiff/appellant and Sri Sankatha Rai, senior advocate assisted by Sri V. K. Rai for the respondents. Both parties agree for the final disposal of the appeal at this very stage of admission as only a legal point bereft of factual dispute is required to be considered.

(2.) THE dispute is in connection with Arazi No. 73 (old), new number 150 area 0.112 situate in Mauja Chaurikhas, Tehsil Asnaon, district Sant Ravidas Nagar, Bhadohi.

(3.) ON the said suit being instituted the defendants instead of submitting written statement moved an application 28-Ga raising a preliminary objection that such a suit is not maintainable under law and is an abuse of the process and, therefore, it be dismissed. The application was allowed vide order dated 28.2.2008 passed by Civil Judge (Junior Division) and the suit was dismissed as not maintainable as the civil court was not possessed of the jurisdiction to grant the relief claimed in the suit. Against the said judgment and order the plaintiff preferred an appeal under Section 96 of the Code of Civil Procedure. The appeal was accompanied by a decree prepared by the trial court in the suit. The appellate court dismissed the appeal holding the suit for the relief claimed in the plaint as not maintainable. It was further held that the trial court committed no error of law in holding that it had no jurisdiction to declare the decisions of the superior authorities to be illegal and invalid. However, while dismissing the appeal the lower appellate court further held that the order dismissing the suit is not a decree under Section 2 (2) of the Code of Civil Procedure, and therefore, the appeal is not even maintainable.