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Shib NaraIn Kaibarta Das and ors. Vs. Sheikh Abdul Gani and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in94Ind.Cas.417
AppellantShib NaraIn Kaibarta Das and ors.
RespondentSheikh Abdul Gani and ors.
Excerpt:
civil procedure code (act v of 1908), section 100 - second appeal--matters of procedure, if can be questioned. - .....was that the property never belonged to the plaintiffs and that there was no mortgage but the property belonged to the defendants.2. the trial court accepted the story of the plaintiffs and made a decree in their favour. on appeal by one of the defendants the subordinate judge has reversed that decree on the finding that the property has not been proved to have ever belonged to the plaintiffs or that there was any mortgage on that property by the plaintiffs to the defendant. on that finding he dismissed the suit.3. no question of law arises upon this finding. but it is contended by the learned vakil for the appellants that the appeal to the lower appellate court was incompetent as all the parties were not joined in the appeal and secondly, the appeal was preferred only against the.....
Judgment:

B.B. Ghose, J.

1. This appeal is by the plaintiffs and it arises out of a suit for redemption of an alleged usufructuary mortgage. The defence was that the property never belonged to the plaintiffs and that there was no mortgage but the property belonged to the defendants.

2. The Trial Court accepted the story of the plaintiffs and made a decree in their favour. On appeal by one of the defendants the Subordinate Judge has reversed that decree on the finding that the property has not been proved to have ever belonged to the plaintiffs or that there was any mortgage on that property by the plaintiffs to the defendant. On that finding he dismissed the suit.

3. No question of law arises upon this finding. But it is contended by the learned Vakil for the appellants that the appeal to the lower Appellate Court was incompetent as all the parties were not joined in the appeal and secondly, the appeal was preferred only against the preliminary decree on the mortgage after the final decree had been made, and so it was not maintainable. Neither of these two points was raised in the lower Appellate Court. As these are matters of procedure dependent upon certain facts the appellants are not entitled to raise these questions for the first time in second appeal.

4. The appeal is, therefore, dismissed with costs.

Cuming, J.

5. I agree.


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