AMAR NATH Vs. KRISHAN LAL TANGRI

JUDGEMENT

(1.) The facts leading to this appeal are that the present appellant, Amar Nath had filed a suit against the present respondents for declaration that he was owner and in possession of the house in dispute which included raised platform (Chabutra) abutting on the public street and shown in red colour in the plan filed with the plaint. As a consequential relief, he prayed for a decree for permanent injunction restraining the defendants from taking possession of any portion of the said house and from interfering in his possession. According to the allegations in the plaint, plaintiff was the owner to the suit house and has been in exclusive and continuous possession since the times of his ancestors. This house included the disputed Chabtra. Defendant No. 2 Krishna Devi (now respondent No. 2) sold an area measuring 11 1/2sq. yards out of the Chabutra for Rs. 1000/- to defendant No. 1 Krishna Lal (now respondent No. 1). According to the plaintiff, Krishna Devi had no right to effect this sale.

(2.) The defendants contested the suit. It is not necessary to give here all the pleas raised by the defendants. Suffice it to say that the defendants disputed the valuation of the suit fixed by the plaintiff for purposes of Court-fees and jurisdiction. In respect of that plea, the learned trial Court framed Issue No. 4 which reads as follows :

(3.) Feeling aggrieved the plaintiff filed an appeal which was heard by the learned second Additional District Judge, Ludhiana. Before him, the defendants-respondents raised a preliminary objection to the effect that the memorandum of appeal had not been duly stamped and as such, there was no proper appeal before the Court. The learned Additional District Judge upheld the said objection. He also declined to exercise his discretion under Section 149 of the Civil Procedure Code, and did not grant time to the plaintiff for making up of the deficiency in the Court-fees, as the period of limitation for filing the appeal had long expired and the plaintiff had been negligent in the matter. Consequently, he rejected the memorandum of appeal under Order 7 Rule 11, read with Section 107 of the Civil Procedure Code. The plaintiff has now come to this Court in appeal.