NEMI CHAND GANGWAL Vs. SURESH KUMAR JAIN (BAKLIWAL)

JUDGEMENT

(1.) WHETHER an order passed under Order XXXIX Rule 1 and 2 by appellate court sitting on appeal against final decree of a suit is appealable under Section 104 read with Order XLIII Rule 1(r) of the Code of Civil Procedure, is the question to be answered in revision petition?

(2.) PETITIONER Nemi Chand Gangwal, as plaintiff, instituted Title Suit No. 243/2010 in the Court of learned Munsiff No. 1, Kamrup at Guwahati which was subsequently transferred to the Court of learned Munsiff No. 2. By this suit, plaintiff prayed for a decree for declaration along with permanent injunction for restraining the defendants and their employees, agents etc. from demolishing the latrine and well of the plaintiff and from locking their passage for access to latrine and well. The defendants contested the suit by filing written statement and otherwise. After conclusion of trial, the learned Munsiff by his judgment and decree dated 21.03.2014 dismissed the suit with cost. Aggrieved, plaintiff preferred Title Appeal No. 36/2014 in the Court of learned Civil Judge No. 2, Kamrup at Guwahati. Appeal has been admitted and records have been called for.

(3.) I have heard Mr. O.P. Bhati, learned counsel for the petitioner who submits that order passed by the appellate Court under Order XXXIX Rule 1 and 2 being appellate in nature, no further appeal shall lie there -against under Order XLIII Rule 1 read with Section 104 of the Code of Civil Procedure. Referring to sub -Section 2 of Section 104, Mr. Bhati submits that no appeal shall lie from any order passed in appeal under this Section and so, on the basis of the expressed bar under Section 104(2) of the Code of Civil Procedure, no appeal under Order XLIII Rule 1 would be maintainable. Mr. Bhati has placed reliance on the following judgments: -