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2018 DIGILAW 1579 (JHR)

Munna Kansera v. Birendra Shukla

2018-07-17

RAJESH KUMAR

body2018
ORDER Rajesh Kumar, J. - Heard learned counsel for the appellant. 2. So far as defect no. 2 is concerned, office has pointed out that at aggrieved portion and prayed portion case number may be confined to only one Title Appeal. However, certified copy of the decree has been filed for both the Title Appeal Nos. 06/13 and 09/13. 3. It is the case of the appellant(original plaintiff) that suit has been for declaring the sale deed no. 75 of 2005 as illegal, null and void and not binding upon the plaintiff as well as defendant no. 2. Defendant no. 2 is daughter of original plaintiff. 4. The suit has been decreed in favour of plaintiff and defendant no. 2. 5. Being aggrieved, defendant nos. 1 and 3 have preferred two separate appeals being Title Appeal Nos. 06/13 and 09/13. In both the appeals, two separate decrees have been prepared against the common judgment dated 08.01.2015. 6. The present Second Appeal has been filed against both the decrees passed in Title Appeal Nos. 06/13 and 09/13. 7. Counsel for the appellant has relied upon the judgment rendered by the Full Bench of Patna High Court in the case of Haribans Singh v. Basist Kumar and Ors. reported in AIR 1984 Patna 220 . Relevant para-5 of the said judgment is quoted here-in-under:- "5. Ordinarily, separate appeals ought to be filed against decrees passed in separate title appeals, but does it follow that a single second appeal can or should be dismissed as not maintainable in the facts and circumstances mentioned above? Since the two reliefs dealt with by the lower appellate court in separate title appeals were prayed for in a single suit, which was concurrently held by both the courts as not bad for multifariousness (and rightly so), I am of the view that the prayer of the plaintiffs in the present second appeal for decreeing the suit in full should be entertained and the second appeal should be treated as a consolidated appeal. No provision of the Code of Civil Procedure has been claimed by Mr. Singh to support his stand. No provision of the Code of Civil Procedure has been claimed by Mr. Singh to support his stand. The Rule 1 of Order 41 of the Civil Procedure Code enjoins a copy of the decree to be filed with the memorandum of appeal and, as has been stated above, copies of both the decrees have been appended in the present case and full court-fee payable for the challenge of the decree and for decreeing the suit in its entirety has been paid. I, therefore, do not see any reason to reject the appeal as being not maintainable." 8. In view of the judgment rendered by Full Bench of Patna High Court in the case of Haribans Singh (supra), defect no. 2, as pointed by the office, is hereby ignored.