- (1.) HEARD Shri A. K. Misra learned Counsel for appellants and Shri V. B. Khare, learned Counsel for respondents.
(2.) THIS is plaintiff's second appeal arising out of Suit for arrears of rent and ejectment of the respondents from the disputed premises filed in the Court of Judge, Small Cause Court. The Court returned the Suit under Section 23 of Judge Small Cause Court Act, as it found that the question of title was involved, on which the suit was registered in the Court of Additional Munsif IV, Gorakhpur as OS No. 940 of 1975. After admitting evidence, the trial Court recorded findings that the land was acquired by Ghasita and thus plaintiff-Basdeo is owner of the house. There is no evidence of tenancy, and the relationship of landlord and tenant between the parties. The defendant has failed to prove his title and that the suit is not barred by estoppel and acquiescence. The trial Court found the notices to be valid and thus decreed the suit on 22-8-1978 for ejectment of the defendants from four rooms, dalan and sahen. The relief for arrears of rent of Rs. 196/- was not allowed. First appeal was filed in the Court of Additional Civil Judge, Gorakhpur. The Civil Appeal No. 270 of 1978 was heard by First Additional Civil Judge, Gorakhpur. He framed two issues: " (1) Whether plaintiffs are entitled for decree of possession in the instant case even if they have failed to establish the claim of tenancy against defendant? (2) Whether the nature of the suit remained as that of the Small Causes nature despite its transfer to the regular Court? If so, its effect ? The appellate Court held that after the transfer of suit to the Court of Munsif, the plaint should have been amended and the Court fees was required to be paid on the reliefs claimed by the plaintiff. The plaintiffs did not choose to amend the plaint and to pay the Court fees and thus the plaintiff was not entitled to decree of possession. The suit remained basically that of small causes nature despite its transfer to the regular Court. The appellate Court set aside the decree of the trial Court.
(3.) THE Second Appeal was filed under Section 100 of C. P. C. and was admitted on 18-10-1980 without framing any substantial question of law. Shri V. B. Khare has raised a preliminary objection to the maintainability of the second appeal. The unamended Section 102 of C. P. C. provides: "102. No second appeal in certain cases.- No second appeal lies in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees. ";