Amitav Kumar Gupta, J. - (1.) The present appeal has been filed by the plaintiff/appellant against the order dated 16.12.2011 passed by Sri Soukat Iqbal, Subordinate Judge -II, Hazaribagh, whereby and whereunder he has dismissed Title Suit No. 94/97 of the plaintiff holding that the plaintiff was non -suited as the cause of action in favour of the plaintiff, came to an end with the execution of the sale deed. Brief fact of the case is that the suit was instituted by the plaintiff for specific performance of a contract for sale of the immovable property described in schedule of the plaint. It was alleged that he had paid a large portion of the agreed consideration amount. The suit was contested on various grounds and the trial proceeded and evidence was recorded in the case. During the pendency of the suit, a petition was filed by defendants No. 3 and 4 alleging therein that the sale deed has already been executed through the power of attorney holders of the vendors with whom the plaintiff had a contract for sale of the property. The defendants therefore prayed for dismissal of the suit as the contract was already performed. The plaintiff, in reply, admitted the fact that sale deed was executed in his favour but made prayer for rejection of the application of the defendant. The court below held that since the agreement has already been performed, hence the plaintiff is fit to be non -suited and also imposed cost of Rs. 2,000/ - under Sec. 35 -A of C.P.C. for false and vexatious claim.
(2.) The appellant submits that the court below committed error in holding that the plaintiff was fit to be non -suited and imposition of cost is also illegal.
(3.) The learned counsel for the respondent submits that the appeal is not maintainable as there is no decree and further submits that the court below has rightly held that the plaintiff is fit to be non -suited.;