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PETITIONER: RESHAM SINGH PYARA SINGH

       Vs.

RESPONDENT: ABDUL SATTAR

DATE OF JUDGMENT20/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 SCC  (1)  49        JT 1995 (8)   559  1995 SCALE  (6)672

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      These SLPs arise from the order dated 13.10.1995 of the Division Bench  of the  Bombay High  Court in  L.P.A.  Stamp No.26774/95 and the order dated 13.9.95 in Appeal from Order No.826/94.      The petitioner claims to have entered into an agreement on June  21, 1973  to purchase certain lands from A.H. Wadia Charity Trust.  In 1975,  when one  Mohd.  Amin  and  others attempted to  construct a boundary wall in the said land, he claimed to  have filed  Suit No.298  of 1975  in  the  Civil Court, Bombay and had an injunction against them restraining from interfering with his possession and construction of the boundary wall.  When the  petitioner had attempted to repair the existing  road  on  the  land  and  open  drainage,  the respondent filed  Suit No.493/90  in the  City Civil  Court, Bombay for  injunction. The  respondent  claimed  to  be  in possession of  the land  admeasuring 1947  sq. mts.  On  its basis, the  petitioner claimed  that they were attempting to trespass into  his land.  Consequently, the  appellant filed Suit No.3670/94  on June 16, 1994 and also sought ad interim injunction  to   restrain  the  respondent  from  committing trespassing into his land. Initially, interim injunction was granted on  June 28, 1994. When the appeal was filed against that order,  the learned  single Judge  of  the  High  Court directed  the   Commissioner  to   demarcate  the  lands  in exclusive possession  and enjoyment of the petitioner within the compound wall by order dated September 13, 1995. Against that order,  the  petitioner  filed  Letters  Patent  Appeal contending that  the  order  of  the  learned  single  Judge amounts to  granting temporary mandatory injunction to break the compound  wall and removing article etc. By the impugned order dated  13, 1995,  the Division Bench rejected the same on the  ground that  LPA would  not lie against the order of the learned single Judge. Thus these SLPs.      It is  contended for the petitioner that as per the law

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laid down  by this  Court in Shah Babulal Khimji vs. Jayaben (AIR 1981  SC 1787),  L.P.A. would lie to the Division Bench against the  interlocutory order  of the  single Judge  and, therefore, the view of the High Court is not correct in law. We find no force in the contention.      Order 43,  Rule 1,  CPC provides  an  appeal  from  the orders passed  under Order 39 Rule 1 etc., as stated in sub- rule (r), which provides as under: "(r) an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX."      Section 104  CPC provides for an appeal from the orders provided in Order 43 save as otherwise expressly provided in the body  of this  Code or  by any law for the time being in force and  from no  other orders.  Sub-section (2) envisages that "no  appeal shall  lie from  any order passed in appeal under this Section".      It would,  therefore, be  clear that when an appeal was filed against  the order  of the City Civil Court, Bombay to the learned  single Judge  under  Order  43,  Rule  1(r)  as provided in  sub-section (1)  of Section 104 by operation of sub-section (2)  of Section 104, no further appeal shall lie from any  order passed  in appeal  under  this  Section.  In Khimji’s case  (supra) the  suit was  filed on  the original side of  the High  Court and the learned single Judge on the original side  passed an  interlocutory order.  Against  the orders of  the  learned  single  Judge,  though  it  was  an interlocutory order,  since the  appeal  would  lie  to  the Division Bench  under the  Letters Patent,  this Court  held that against  the interlocutory  orders passed by the single Judge, Letters  Patent Appeal  would be  maintainable.  That ratio, therefore,  is clearly  inapplicable to  the facts in this case.      The SLPs are accordingly dismissed.