Full Judgment
S.S, Saraf, J.
1. This appeal under Section 100, CPC has been preferred against the judgment and decree dated 13-12-1995 passed by the learned 1st Additional District Judge, Sagar in Civil Appeal No. 2-A/95 reversing the judgment and decree dated 12-5-1995 passed by the learned Civil Judge, Class-I, Rehli in Civil Suit No. 31 -A/86 whereby the suit instituted by the plaintiff/appellant for declaration of title and perpetual injunction has been decreed in favour of the plaintiff/appellant.
2. The essential facts necessary to decide the appeal are:
The suit property is agricultural land bearing Survey No. 409 are 0.43 acre of village Garhakota. The plaintiff/appellant instituted the above civil suit pleading that his ancestor Gangadhar had purchased the suit land from Maalguzar on 31-10-1926 and got possession thereof. Since then Gangadharand after his death his legal heirs had been in possession of the suit land. On 15-2-1949, Gangadhar also executed a Will in favour of the plaintiff/appellant. However, the suit land has been ordered to have been vested in the State by the defendant-respondent No. I/State of M.P. and thereafter proceedings for dispossessing the plaintiff/appellant from the suit land have been initiated. The plaintiff/appellant, therefore, instituted the above civil suit for declaration of his title over the suit land and perpetual injunction restraining the officers of the defendant-respondent No. 1/State of M.P. from interfering his possession over the suit land.
3. The defendant-respondent No. 1/State of M.P. denied the above facts regarding the ownership of the plaintiff/appellant and averred that the suit land is the Government land which has been recorded in the revenue papers as 'Chhota Ghas'. It has, further, been, averred that the father of the plaintiff/appellant encroached upon the disputed land and therefore the legal proceedings to remove the encroachment are being taken against the plaintiff/appellant. The father of the plaintiff/appellant was Bansi Patel who was also impleaded as a party in the suit who died during the pendency of the litigation and therefore his legal representatives have been brought on record who are the respondent Nos. 2 to 7.
4. The learned Trial Judge after evaluating the evidence adduced by both the parties found that the plaintiff/appellant was the owner of the suit land and therefore the learned Trial Court decreed the suit in his favour. Being aggrieved by the judgment and decree passed by the learned Trial Court, the defendant-respondent No. 1/State of M.P. preferred an appeal under Section 96, CPC. The learned First Appellate Court by the impugned judgment and decree dated 13-12-1995 reversed the judgment and decree passed by the learned Trial Court.
5. In the First Appellate Court, the memo of appeal was filed accompanying a copy of the judgment of the Trial Court. The copy of the decree passed by the learned Trial Court was not accompanied by the memo of appeal which was subsequently filed on the date of final argument. The plaintiff/appellant having been aggrieved by the impugned judgment and decree preferred the present appeal which has been admitted by this Court for consideration on the sole substantial question of law which is as under :--
'Whether the appeal filed by the respondent in the Lower Appellate Court, was barred by time, in view of the copy of decree was supplied on the final date of hearing ?'
6. The learned counsel for the appellant at the very inception sought permission to argue on the proposed substantial questions of law which have been enumerated in Para 17 (b) & (d) of the memo of appeal. Having heard the learned counsel for both the sides, I am of the view that there is no ground to permit the learned counsel for the appellant to argue on the above proposed substantial question of law. The prayer is, therefore, rejected.
7. Having heard the learned counsel for both the sides and having carefully scrutinised the entire material on record of the Court below, I am ofthe considered view that this appeal deserves to be dismissed. It is true that under provisions of Order 41 Rule 1, CPC a memo of appeal must be accompanied by a copy of decree and unless it is so accompanied, the appeal is not tenable. However, the learned First Appellate Court has considered this point in Paras 8 and 9 of the impugned judgment and found that if the portion which is part of the decree is also incorporated in the judgment or order and it the copy of the such judgment or order is accompanied by the memo of appeal, the mistake of not accompanying the copy of decree by the memo of appeal is not fatal.
8. It is also clear from the record that the copy of the decree was permitted to be filed be the learned First Appellant Court at the time of final argument. In this connection the learned counsel for the appellant has contended that since the copy of the decree was filed at the time of final argument, the appeal was barred by limitation as the delay was not condoned by the learned First Appellate Court. It cannot be disputed that if the memo of appeal is not accompanied by a copy of the decree, the time should be allowed to file such copy. Though the memo of appeal was not accompanied by the copy of the decree though it should have been but by permitting the defendant/respondent No. 1 to file the said copy at the time of final argument by the learned First Appellate Court, the delay in filing the copy of the decree appears to have been condoned by the learned First Appellate Court. When once the learned First Appellate Court permitted the defendant/respondent No. 1 to file copy of the decree during the pendency of the first appeal, there is no justification to hold while exercising jurisdiction under Section 100, CPC that the first appeal should have been dismissed b the learned First Appellate Court on the ground of not accompanying the copy of the decree by the memo of appeal. In my considered opinion, technicality should not be permitted to lake upper hand over the dispensation of justice.
9. It is manifest from the record that the plaintiff/appellant unsuccessfully raised the same question before the learned First Appellate Court. The matter has been considered by the learned First Appellate Court which ultimately permitted the defendant/respondent No. 1 to file the copy of the decree appealed against before the first appeal was disposed of by it. The procedure adopted by the learned First Appellate Court does not appear to be either erroneous or illegal as permitting the defendant/respondent No. 1 to file the copy of the decree at the time of final argument amounts to condonation of delay in filing the appeal.
10. For the reasons stated above, I am of the considered view that the appeal filed by the defendant/respondent No. 1 in the First Appellate Court was not barred by limitation in view of the fact that the copy of the decree was filed on the final date of hearing. Thus the appeal is devoid of any merits and it is, therefore, dismissed.
No costs.
11. Second Appeal dismissed.