SANWARMUI PODDAR ALIAS KOKA Vs. GJJLRAJ PODDAR

JUDGEMENT

(1.) 1. The appellants filed Title Suit No. 82/96 in the Court of learned Subordinate Judge, 3rd., Ranchi, for declaration of their one half share in the undivided properties described in Schedules B and C of the plaint and also for declaration that the sale -deed dated 2 -4 -1996 executed by the defendant Nos. 1 and 3 in favour of defendant No. 4 has neither created any right, title and interest in favour of the respondent No. 4 in respect of holding No. 772, nor has it affected in any way the plaintiff's right title and interest in the said holding. During the pendency of the suit, the plaintiff filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as the Code) for interim injunction. The trial Court, vide order dated 22 -3 -1997, granted interim injunction restraining the defendant Nos. 1 to 4, their agents, servants and employees from interfering with the plaintiff's peaceful possession of the property in dispute. Against the said order, the defendant No. 4 filed Misc. Appeal No. 120/97R under Section 104 read with Order XLIII, Rule 1(r) of the Code before this Court which was allowed by the learned Single Judge, vide judgment dated 19th December, 1997. Being aggrieved by the said judgment, the plaintiff has filed this appeal under Clause 10 of letters patent.

(2.) At the threshold, a preliminary objection about the maintainability of this appeal has been raised We have heard the learned Counsel for the parties on the preliminary objection regarding maintainability of this appeal.

(3.) Against an order passed under Order XXIX, Rules 1 and 2 of the Code, an appeal lies under Section 104 read with Order XLIII, Rule l(r) of the Code. Sub -section (2) of Section 104 of the Code has barred any further appeal from the judgment of a learned Single Judge passed in an appeal filed under Section 104 read with Order XLIII, Rule 1 of the Code. But, the submission of the learned Counsel for the appellants is that in spite of the prohibition contained in Section 104(2) of the Code against filing any further appeal from an appellate judgment passed by the Single Judge, the appeal will lie from such judgment under Clause 10 of the Letters Patent which governs and regulates the internal appeals within the High Court. In his support, the learned Counsel has placed reliance on Shah Babulal Khimji v. Jayaben D. Kania .