1 S.A. No. 32/2004 HIGH COURT OF MADHYA PRADESH: JABALPUR SINGLE BENCH: HON. SHRI JUSTICE A.K. SHRIVASTAVA SECOND APPEAL NO. 32/2004 APPELLANT: Ramsharan, S/o Mahadeo PLAINTIFF Kurmi, agriculturist, r/o Village Deepur, Tahsil Loundi, District Chattarpur, M.P. -Versus- RESPONDENTS : 1, Umashanker, (DEFENDANTS) 2. Ramkishore Both agriculturists, r/o Village Deopur, Tehsil Loundi, District Chattarpur, M.P. 3. State of Madhya Pradesh, through Collector, District Chhatarpur, Town, Tehsil and District Chatarpur, M.P. ................................................................................................ Appellant - Shri Deependra Mishra, Advocate Respondents No.1 & 2 - Shri A.K. Choubey and Shri Jagtendra Prasad, Advocate. Respondent no.3/State - Shri Akhil Singh, Panel Lawyer ................................................................................................ O R D E R (16/09/2011) 1. This is plaintiff's second appeal having lost from both the Courts below. 2 S.A. No. 32/2004 2. A suit for declaration and injunction has been filed by the plaintiff in respect of certain agricultural property which is the subject matter of the suit and the description whereof has been mentioned in the plaint. 3. The suit was resisted by the defendants by filing written statement. 4. On going through the order-sheets of the learned Trial Court this Court finds that a ceiling case 147(A)90 B/74-75 before Sub Divisional Officer, Laundi was summoned and it was found that the plaintiff submitted the draft statement before the competent authority under the Ceiling Act. The learned Trial Court on going through the file of the Sub Divisional Officer came to hold that because the objections of the plaintiff were rejected under Section 11(4) of the Ceiling Act, he should have filed civil suit within prescribed period of three months under Section 11(5) of the Ceiling Act hence by exercising power under Order VII Rule 11 CPC held the Trial Court that suit is not maintainable and dismissed the same. 3 S.A. No. 32/2004 5. The first appeal filed by the plaintiff has been dismissed by the impugned judgment and decree holding it to be not maintainable. 6. In this manner, the second appeal has been filed by the appellant-plaintiff. 6. This Court admitted this second appeal on the following substantial question of law:- “Whether learned First Appellate Court erred in substantial error of law in treating the appeal to be an appeal under Order 43 rule 1 CPC when the same was not filed under the said provision and further erred in law by not treating the said appeal under Section 96 CPC ?” 7. The sole contention which has been put forth by learned counsel for the appellant is that on account of negligence of learned counsel who has filed the first appeal, the provision under which appeal was filed was not mentioned in the memorandum of first appeal and only this much was mentioned that appeal is filed against the judgment dated 3.2.2003 passed by learned Trial Court. Learned counsel submits that the learned First Appellate Court treating this appeal to be an appeal under Order 43 Rule 1 CPC dismissed the same as not maintainable. 4 S.A. No. 32/2004 Learned counsel further submits that the said appeal ought to have been treated to be an appeal under Section 96 of CPC and if some deficit court fee was required to be paid, it could have been so directed. 8. On the other hand, Shri A.K. Choubey and Shri Jagtendra Prasad, learned counsel for respondents no.1 and 2 and Shri Akhilesh Singh, learned counsel for respondent no.3 argued in support of the impugned judgment. 9. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding Substantial Question of Law framed:- 10. On bare perusal of the memorandum of first appeal filed before learned First Appellate Court, this Court finds that no provision under which the first appeal has been filed has been mentioned. However, it is well settled in law that any order passed under Section 96 CPC would amount to a decree and if that would be the position it should have been filed under Section 96 CPC. Therefore the learned First Appellate Court ought to have treated the first appeal as an appeal under Section 96 CPC. 5 S.A. No. 32/2004 11. The substantial question of law is thus answered that learned First Appellate Court has erred in substantial error of law in not treating the first appeal to be an appeal under Section 96 CPC. 12. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment passed by learned First Appellate Court is hereby set aside and the case is sent back to learned First Appellate Court to redecide the appeal treating it to be an appeal under Section 96 CPC. If any deficit court fee is required to be paid by the plaintiff, the learned First Appellate Court shall permit him to pay the same. 13. The parties are hereby directed to appear in the First Appellate Court on 28.11.2011. No separate notice shall be issued for the date of hearing by that Court. Registry is hereby directed to send the record posthaste so as to reach that Court much prior to the date 28.11.2011. 14. Accordingly, this second appeal is allowed with no order as to costs. (A.K. SHRIVASTAVA) Judge rao 6 S.A. No. 32/2004