RESHAM SINGH PYARA SINGHversusABDUL SATTAR

                       RESHAM SINGH PYARA SINGH                                    A
                                  v.
                            ABDUL SATTAR

                              NOVEMBER 20, 1995

                [K. RAMASWAMY AND B.L. HANSARIA, JJ.]                              B

          Code of Civil Procedure, I908:

          S. I 04-0rder 39 Rule I-Order 43 Rule I-Appeal filed under order 43
    Rule I-By operation of sub-section (2) of S.I04 no further appeal would lie.   C
           The petitioner entered into an agreement on June 21, 1973 to pur-
    chase certain lands from a Charity Trust. In 1975, when 'A' and others
.   attempted to construct a boundary wall in the said land, the petitioner
    filed a suit and had an injunction against 'them restraining from interfer- D
    ing 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 a suit for injunction, claiming to be in
    possession of the land admeasuring 1947 sq. mts. and that the petitioner
    claimed that they were attempting to trespass into his land. Consequently,
    the petitioner filed a suit and also sought ad interim injunction to restrain E
    the respondent from trespassing into his land. Initially, interim injunction
    was granted. On appeal a single Judge of the High Court directed the
    Commissioner to demarcate the lands in exclusive possession and enjoy-
    ment of the petitioner within the compound wall. Against that order, the
    petitioner filed Letters Patent Appeal, and the Division Bench rejected the F
    same on the ground that LPA would not lie against the order of the single
    Judge. Thus these SLPs.

          It was contended for the petitioner that as per the law laid down by
    this Court in Shah Babula/ Khimji v. Jayaben, AIR (1981) SC 1787, L.P.A. G
    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.

          Dismissing the SLPs, this Court

          HELD : Section 104 CPC provides for an appeal from the orders H
                                   483
    484                   SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A   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 ari appeal
    was filed against the order of the City Civil Court, Bombay to the Single
    Judge under Order 43, Rule l(r) as provided in sub-section (1) of section
B   104 by operation of sub-section (2) of section 104, no further appeal shall lie
    from any order passed in appeal under this section. [485-F-G)

          Shah Babula/ Khimji v. Jayaben, AIR (1981) SC 1787, held inap-
    plicable.
c         CIVIL APPELLATE JURISDICTION: Special Leave Petition (C)
    Nos. 25032-33 of 1995.

         From the Judgment and Order dated 13.9.95 of the Bombay High
    Court in Appeal from Order No. 826/94 in S.C. Suit No. 3670 of 1994.
D
          Sushil Kumar and R.P. Wadhwani for the Petitioner.

          M.N. Shroff and Ms. Reema Bhandari for the Respondent.

          The following Order of the Court was delivered :
E
          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,
F 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 City
  Civil Court, Bombay and had an injunction against them restraining from
  interfering with his possession and construction of the boundary wall.
G 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
H appellant filed Suit No. 3670/94 on June 16, 1994 and also sought ad interim        .
                                                                                      \
          RESHAMSINGHPYARASINGHv. ABDULSATIAR                            485

injunction to restrain the respondent from committing trespassing into his      A
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        B
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
September 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.
                                                                                c
      It is contended for the petitioner that as per the law laid down by
this Court in Shah Babula! Khimji v. 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      D
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:
                                                                                E
        (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       F
by any law for the time being in force and from no other orders. Sub-sec-
tion (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     G
Order 43, Rule l(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         H
    486                  SUPREME. COURT REPORTS [1995] SUPP. 5 S.C.R.

A   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.

    G.N.                                                  Petitions dismissed.




                                                                                 /,




                                                                                  ·-