RAMESH CHANDRA TALUKDAR Vs. PRAMATHA NATH SANYAL

JUDGEMENT

(1.) THIS appeal is by the defendants in a suit for declaration of plaintiff's title and possession to certain lands described in the Schedule of the plaint. The trial Court decreed the plaintiff's suit on the finding that the plaintiff has title to and possession in the disputed land. On appeal by the defendants to the lower appellate Court the learned Judge has dismissed the plaintiff's claim so far the properties mentioned in Schedule Ka are concerned but has declared the plaintiff's title in respect of the other disputed properties and has passed a decree for recovery of possession after receiving additional Court-fees from the plaintiff. Hence this second appeal by the defendants. The first point urged by the learned Advocate for the appellants is that the lower appellate Court had no jurisdiction to extend the time for putting in additional Court-fees after he delivered his judgment on 5 September 1932. It appears that the learned Judge by his judgment delivered on 5 September 1932 directed the plaintiff to put in additional Court- fees within three weeks from that date. There was a further direction in the judgment that if the plaintiff failed to put in the Court-fees required within the time fixed, the suit would stand dismissed. It appears however that before the three weeks expired, the plaintiff made an application for extension of time for putting in the deficit Court-fees and his application was allowed. There cannot be any doubt therefore that under Section 149, Civil P. C., the learned Judge had jurisdiction to extend the time as the appeal was not finally disposed of before the order of extension of time was made. The second point urged by the learned Advocate for the appellants is that the lower appellate Court was wrong in throwing the onus upon the defendants. I am unable to accept this contention. It appears however from the judgment of the learned Judge that in view of the pleadings of the parties and the entire evidence in the case, he was of opinion that the plaintiff's title was proved. The finding of the lower appellate Court on the question of plaintiff's title therefore cannot be successfully challenged in second appeal. The grounds taken by the learned Advocate for the appellants therefore fail and the appeal is dismissed with costs. Henderson, J.

(2.) I agree.