HIGH COURT OF TRIPURA AGARTALA RSA No.13 of 2023 Sri Chittaranjan Shil, S/O Late Rajni Kanta Shil, Vill:-Belabar (Shibir Tilla), P.O-Charipara, P.S-Amtali, Dist-West Tripura(85) ------ Appellant Versus 1. Sri Santosh Sengupta, S/O Lt. Satyabrata Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S-Amtali, Dist-West Tripura. 2. Sri Prantosh Sengupta, S/O- Lt. Satyabrata Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S.-Amtali, Dist-West Tripura. 3. Smt. Jhuma Sengupta (Gan), W/O- Sri Kamal Gan, D/O-Lt. Satyabrata Sengupta, R/O-Office Lane, Agartala, P.S.-West Agartala, Dist-West Tripura. 4. (a) Smt. Rupali Sen Gupta, D/O Lt. Santi Narayan Sengupta, R/O-Joynagar, P.O-Agartala, P.S. –West Agartala, Dist- West Tripura. (b) Mr. Sankar Sen Gupta, S/O-Lt. Santi Narayan Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S-Amtali, Dist-West Tripura. (c) Mr. Shibu Sen Gupta, S/O-Lt. Santi Narayan Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S-Amtali, Dist-West Tripura. (d) Mr. Shakti Pada Sen Gupta, S/O-Lt. Santi Narayan Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S-Amtali, Dist-West Tripura. (e) Mrs. Ruma Sen Gupta(Taran), D/O-Lt. Santi Narayan Sengupta, R/O-Joynagar, P.O-Agartala, P.S-West Agartala, Dist-West Tripura. (f) Mr. Pranab Sen Gupta, S/O-Lt. Santi Narayan Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S-Amtali, Dist-West Tripura. (g) Mrs. Soma Sen Gupta, D/O-Lt. Santi Narayan Sengupta, R/O-Ramnagar Road No.10, P.O-Ramnagar, P.S-West Agartala. (h) Mr. Kajal Sen Gupta, S/O-Lt. Santi Narayan Sengupta, Vill-Madhya Charipara, P.O-Charipra, P.S-Amtali, Dist-West Tripura. 5. Sri Matilal Sengupta, S/O Lt. Nripendra Sengupta, Vill-Madhya Charipara, P.O.-Charipra, P.S-Amtali, Dist.-West Tripura. ------ Respondents For Appellant(s) : Mr. Debalay Bhattacharya, Sr. Adv., Ms. Rashmi Bhattarcharjee, Adv. For Respondent(s) : Mr. Saktimoy Chakraborty, Sr. Adv., Mrs. Pinki Chakraborty, Adv. Date of hearing : 14.08.2025 Date of delivery of Judgment & Order : 28.08.2025 Whether fit for reporting : YES HON‟BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order This second appeal under Section 100 of CPC is preferred challenging the judgment dated 22.07.2022 and decree dated 29.07.2022 delivered by Learned Additional District Judge, West Tripura, Agartala, Court No.5 in connection with Case No.TA/17/2021. By the said judgment and decree, Learned First Appellate Court partly allowed the appeal reversing the judgment delivered by Learned Trial Court in connection with Case No. TS/105/2016 and also uphold the judgment and decree delivered by Learned Trial Court in the same suit in TS(CC)/6/2017. Page 3 of 20 2. Heard Learned Senior Counsel Mr. Debaloy Bhattacharya, assisted by Learned Counsel, Ms. Rashmi Bhattacharjee appearing on behalf of the appellant-defendant and also heard Learned Senior Counsel Mr. S.M. Chakraborty, assisted by Learned Counsel, Mrs. Pinki Chakraborty appearing on behalf of the respondent-plaintiffs. 3. At the time of admission of appeal, the following substantial question of law was formulated by this Court by order dated 01.09.2023: “Whether single, one and common appeal is maintainable against the judgment and decree passed in TS 105 of 2016 and TS(CC) 06 of 2017?” 4. Now, let us discuss about the subject matter of the original suit and the counter claim. The respondent-plaintiffs filed the title suit bearing No.105 of 2016 for declaration of title, recovery of possession and perpetual injunction before the Learned Trial Court. The case of the respondent-plaintiffs, in short, was that originally one Tabdil Hussain and four others were owners of the suit land and other lands by paying Nazrana to the Maharaja Tripura from Taluk No.169 and being owner of the suit land and other lands transferred the same in favour of the original plaintiff No.4 (substituted by legal heirs), plaintiff No.5 and predecessors of plaintiff Nos.1, 2, 3 and others by exchange deed No.1-3832 dated 13.01.1964 and thereafter by partition plaintiff Nos.4, 5 and predecessors of plaintiff Nos.1, 2 and 3 for land measuring 4.20 acres including the suit land. About 20 years back the defendant was allowed to stay on the suit land as permissive possessor. In the last part of December, 2015 plaintiffs requested the defendant to vacate the suit land within 3 months. On 24.07.2016, the defendant started construction over the suit land illegally when the respondent-plaintiffs raised objection and again on 25.07.2016 the defendant was requested to vacate the suit land but the defendant threatened the plaintiffs. On 03.08.2016 the plaintiffs issued notice upon the defendant to vacate the suit land within 15 days but no action was taken. Hence the respondent-plaintiffs filed the suit bearing No.TS/105/2016 before the Learned Trial Court for declaration of title, recovery of possession and perpetual injunction. The original defendant filed counter claim which was registered as TS(CC)/6/2017 in the same suit with the assertions that original owner of the suit land was one Narendra Kumar Majumder which was recorded in his name in Khatian No.2132. The defendant purchased land measuring 5 gandas by two registered sale deeds bearing No.1-6378 and 1-6577 dated 19.10.1987 from said Narendra Kumar Majumder. The defendant sold land measuring 2 gandas out of his purchased 5 gandas of land to one Tejendra Datta and the defendant remained owner of land measuring 3 gandas and was enjoying the same and respondent-plaintiffs have had no right, title and interest over the same. It was also pleaded that due to wrong entry in the revenue record, land measuring 2 gandas was shown in favour of the plaintiffs and 1 ganda was shown in favour of the defendant for which the dispute cropped up amongst the parties. It was further pleaded that the defendant received notice of the plaintiffs and the defendant issued reply to notice dated 15.06.2020 but the plaintiffs concealed said fact. The defendant further took the plea that the plaintiffs wrongly described the boundary of the suit land. Thus, the defendant by the counter claim prayed for declaration of title and perpetual injunction against the plaintiffs. 5. Upon the pleadings of the parties, Learned Trial Court framed 7 numbers of issues in TS/105/2016 and also framed 6 numbers of issues in TS(CC)/6/2017 which are mentioned herein below: Issues framed in TS/105/2016: i) Is the suit maintainable in its present form and nature? ii) Have the plaintiffs any cause of action to institute the instant suit? iii) Have the plaintiffs right, title and interest over the suit land? iv) Is the story of possession of plaintiffs over the suit land and their dispossession therefrom true? If so, are the plaintiffs entitled to get possession of the suit land? v) Are the plaintiffs entitled to get an order of perpetual injunction, as prayed for? vi) Are the plaintiffs entitled to a decree, as prayed for? vii) What other relief/reliefs the plaintiffs are entitled to? Issues framed in TS(CC)/6/2017: i) Is the suit maintainable in its present form and nature? ii) Has the counter claimant any cause of action to institute the instant suit? iii) Has the counter claimant right, title and interest over the suit land? iv) Is the counter claimant in possession of the suit land? If so, is the counter claimant entitled to get an order of perpetual injunction, as prayed for? v) Is the counter claimant entitled to a decree, as prayed for? vi) What other relief/reliefs the counter claimant is entitled to? To substantiate the issues, the original plaintiffs relied upon some documents which were marked as Exhibits and the respondent- plaintiffs adduced only one witness namely Sri Matilal Sengupta who was examined as PW-1. On the other hand the contesting defendant adduced six numbers of witnesses and relied upon some documentary evidence which were marked as exhibits. For the sake of convenience, the names of the witnesses and the exhibited documents of the parties are mentioned herein below: (A) Plaintiffs' Exhibits :- i) Finally published Khatian Nos.1986/1 and 1986/2 under mouja-charpara in 2 sheets marked as Exbt.1A and Exbt.1B respectively. ii) Exchange deed bearing No.1-3832 dated 13.01.1964 in 32 sheets marked as Exbt.2. iii) Demand notice dated 03.08.2016 marked as Exbt.3. iv) Postal receipt dated 03.08.2016 marked as Exbt.4. v) Survey settlement map old and new in 2 sheets marked as Exbt.5/A and Exbt.5/B. (B) Plaintiffs' Witnesses :- i) PW.1 Sri Matilal Sengupta. (C) Defendant's Exhibits :- i) Original copy of the legal notice dated 13.05.2009 Exbt.A. ii) Certified copy of Khatian No.4241 Exbt.B. iii) Original copy of registered sale deed vide No.1-6577 marked Exbt.C. iv) Original copy of registered sale deed vide no.1-6578 Ext.D. v) Certified copy of trace map of mouja- Charipara sheet No.1(P) Ext.E. vi) Certified copy of Khatian NO.2135 marked Ext.F. vii) Certified copy of Khatian No.542 marked Exbt.G. (D) Defendant's Witnesses :- i) DW.1 Sri Chittaranjan Shil. ii) DW.2 Sri Dulal Majumder. iii) DW.3 Sri Dilip Kumar Datta. iv) DW.5 Smt. Ankit Bhowmik. v) DW.6 Ashim Saha. Finally, on conclusion of trial Learned Trial Court by judgment dated 16.09.2021 dismissed the suit of the plaintiffs now the respondents herein and also decreed the counter claim of the original defendant now the appellant herein. For the sake of convenience, the operative portion of the judgment dated 16.09.2021 is reproduced herein below: ORDER 11. In the result, the suit of the plaintiff bearing No.T.S.105 of 2016 is dismissed opining that the plaintiffs have failed to prove their right, title and interest over the suit premise identifying the same properly. The suit of the plaintiff bearing No.T.S 105 of 2016 is disposed of on contest with cost. On the other hand the counter-claim bearing No.T.S(CC) 06 of 2017 is hereby decreed with the observation that the counter-claimant has right, title and interest over the suit premise described in his counter-claim along with confirmation of possession. The counter-defendants are restrained to cause any disturbance with the peaceful possession of the counter-claimant over the suit premise described in the schedule of the counter-claim. The counter-claim bearing No.T.S(CC) 06 of 2017 is disposed of on contest with cost. Make necessary entry in the relevant Trial Register. Prepare decree accordingly and put up before me for signature within 14(fourteen) days from today. Challenging that judgment, the respondent i.e. the original plaintiffs filed an appeal before the Learned First Appellate Court under Section 96 of CPC and the Learned First Appellate Court by the judgment dated 22.07.2022 and decree dated 29.07.2022 disposed of the appeal partly modifying the judgment delivered in TS/105/2016 and uphold the judgment delivered in connection with TS(CC)/6/2017. For the sake of convenience, the operative portion of the judgment runs as follows: O R D E R TS 105 of 2016 In the result I find the appeal against the judgment and decree passed in TS 105 of 2016 is liable to be allowed partly and stands allowed partly. It is hereby declared that plaintiffs are owner of their land of khatian No.1986/1, CS plot No.1743/P, RS Plot No.3719 land measuring 0.050 acres. TS(CC) 06 of 2017 In the result, I find, the appeal against the judgment and decree passed in TS(CC) 06 of 2017 is liable to be dismissed and stands dismissed and the Judgment and decree of the Ld. Trial Court is upheld. This appeal is disposed of on contest. Prepare appellate decree accordingly and place before me for signature within 15 days. Send down the Trial Court Record along with a copy of this Judgment and decree. Challenging that judgment, the respondent as appellant i.e. the original defendant has preferred this appeal before this High Court. 6. At the time of hearing, Learned Counsel for the appellant- defendant submitted that the respondent-plaintiffs filed one suit for declaration of title and for recovery of possession and for perpetual injunction, and the present appellants as defendants filed one counter claim, claiming declaration of title and perpetual injunction against the original plaintiffs and after conclusion of trial, Learned Civil Judge (Senior Division), Court No.1, West Tripura, Agartala, dismissed the suit filed by the respondent-plaintiffs in TS/105/2016 and decreed the counter claim filed by the present appellant. Learned Senior Counsel further submitted that in view of Section 96 of CPC, there was no scope on the part of the Learned First Appellate Court to deliver a common judgment and decree in the first appeal but the Learned First Appellate Court, ignoring the provisions of law by a common judgment and decree, disposed of the appeal. Although the present appellant has not been materially affected by the said judgment and decree of the Learned First Appellate Court but in view of the settled position of law, the same is not permissible. Learned Senior Counsel also referred Para Nos.3, 6 and 8(a) of the judgment delivered by the Learned First Appellate Court and submitted that the Learned First Appellate Court, misconstruing the provisions of law delivered one judgment because there was no scope to hear common appeal against the judgment and decree passed in TS/105/2016 and TS(CC)/6/2017 by the Learned First Appellate Court. Learned Senior Counsel further drawn the attention of the Court referring the memo of appeal filed by the respondent-plaintiffs in the caption that the respondent-plaintiffs only challenged the judgment delivered by Learned Trial Court in TS/105/2016 but in absence of proper court fees, Learned First Appellate Court, ignoring the provisions of Section 96 of CPC, heard and decided both the suit Nos.TS/105/2016 and TS(CC)/6/2017. Learned Senior Counsel again drawn the attention of the Court that the appeal valued at Rs. 1,05,000/- being the value of original title suit but no separate valuation was shown for the connected TS(CC)/6/2017 and no court fees was paid for the connected counter claim. But Learned First Appellate Court, ignoring the prayer, in para No.8 of the judgment decided to formulate the following points for decision of the appeal which are mentioned hereinbelow: (a) Whether single, one and common appeal is maintainable against the judgment and decree passed in TS 105 of 2016 and TS(CC) 06 of 2017? (b) Whether the plaintiffs or defendant is the owner of the suit land and whether the defendant is in possession on the land of plaintiffs or on his purchase land? (c) Whether the Judgment of the Ld. Trial Court is required to be interfered? It was again submitted in the caption, although only the judgment and decree in respect of TS/105/2016 was challenged but in the relief, the respondent-plaintiffs sought reliefs for setting aside/quash/reversing the judgment and decree of both the title suit and the connected counter claim. So, in view of the settled legal position, the judgment and decree of the Learned First Appellate Court cannot be sustained in the eye of law and urged for setting aside the judgment dated 22.07.2022 and decree dated 29.07.2022 delivered by Learned Additional District Judge, West Tripura, Agartala, Court No.5 in connection with Case No.TA/17/2021, on the ground that against two judgments one single appeal was not maintainable. 7. On the other hand, Learned Senior Counsel, Mr. S.M. Chakraborty, appearing on behalf of the respondent-plaintiffs, drawn the attention of the Court that the contention raised by Learned Senior Counsel for the appellant-defendants cannot be accepted at this stage because there was no perversity or irregularity in the judgment delivered by Learned First Appellate Court. Learned Senior Counsel Mr. Chakraborty further submitted that Section 99 of CPC protects the case of the respondent-plaintiffs and there is no chance of defeating the appeal in view of the said provision of Section 99 of CPC. Learned Senior Counsel further submitted that at the time of determination of the appeal, Learned First Appellate Court gave specific observation regarding maintainability of one common appeal against the judgment and decree passed in TS/105/2016 and TS(CC)/6/2017. Learned Senior Counsel further submitted as alleged by Learned Senior Counsel for the appellant-defendants, if there is any deficiency of court fee in that case, there is no scope on the part of the present appellant to be prejudiced in the appeal and furthermore, in view of Section 149 of CPC, the issue regarding deficiency of court fees is to be decided by the Court not by the present appellant and in support of his contention, Learned Senior Counsel referred one judgment of the Hon'ble Supreme Court reported in AIR 1953 SC 419 [Narhari and others Vs. Shankar and others], wherein in Para No.4 Hon'ble the Apex Court observed as under: “4. In the judgment of the High Court, though reference is given to some of these decisions, it is merely mentioned that the appellant relies on these decisions. The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision in „17 Deccan L R 322(A)‟, they need not comment on these decisions at all. There is also a later decision of the Judicial Committee of the State in „Bansilal v. Mohanlal‟, 33 Deccan LR 603 (F-G), where the well known and exhaustive authority of the Lahore High Court in –„Mst. Lachmi v. Mst. Bhuli‟, AIR 1927 Lah 289 (H), was followed. In the Lahore case, here were two cross suits about the same subject matter, filed simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the trial court and even in the first appeal to the Sadar Adalat, there was only one judgment in spite of there being two appeals by the two sets of defendants. The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated court-fee for the whole suit. It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand J. in his learned judgment in –„AIR-1927 Lah 289(H)‟, mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppels is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit of Section 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India.” Referring the same, Learned Senior Counsel submitted that where there is one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up. Here in the case at hand, by a common trial, both the title suit and the counter claim was decided by the Learned Trial Court. So, in view of the settled position of law, there need not be two separate appeals be filed seeking redress. 8. Learned Senior Counsel also referred another judgment of the Hon'ble Supreme Court of India reported in (2014) 10 SCC 702 [Tajender Singh Ghambhir and another Vs. Gurpreet Singh and others] wherein in Para Nos.8 and 11, Hon'ble the Apex Court observed as under: “8. The scheme of the above provision is clear. It casts duty on the court to determine as to whether or not court fee paid on the plaint is deficient and if the court fee is found to be deficient, then give an opportunity to the plaintiff to make up such deficiency within the time that may be fixed by the court. The important thread that runs through sub- sections (2) and (3) of Section 6 of the 1870 Act is that for payment of court fee, time must be granted by the court and if despite the order of the court, deficient court fee is not paid, then consequence as provided therein must follow. 11. The High Court was also in error in holding that the deficiency in court fee in respect of the plaint cannot be made good during the appellate stage. In this regard, the High Court, overlooked the well- known legal position that an appeal is continuation of the suit and the power of the appellate court is coextensive with that of the trial court. It failed to bear in mind that what could be done by the trial court in the proceeding of the suit, can always be done by the appellate court in the interest of justice.” Referring the same, Learned Senior Counsel drawn the attention of the Court, if it is found that there was deficiency of court fee in securing the relief, in that case there is scope for paying the deficient court fees and even the matter regarding deficient court fees can also be decided during appellate stage also by the Learned Appellate Court. 9. Learned Senior Counsel Mr. Chakraborty again referred another citation of Hon'ble Gauhati High Court reported in AIR 1994 Gauhati 12 [Kailash Singh Vs. Hiralal Dey], wherein in Para No.14, Hon'ble Gauhati High Court observed as under: “14. Section 99 is very clear that no decree shall be reversed or substantially varied on the ground of non-joinder or mis-joinder of parties or causes of action or any error, defect or irregularity in any proceeding not affecting the merit of the case or jurisdiction of the court. Although according to Mr. Khetri this section does not include signing and verification of the plaint, I am of the opinion that the expression “any error, defect or irregularity in any proceeding in the suit” will also include signing and verification of the plaint as laid down in Rules 14 and 15 of Order 6, C.P.C. In this connection attention of this court has been drawn by Mr. Sarma to a decision of the Punjab and Haryana High Court in Smt. Mukhtiar Kaur v. Smt. Ghulab Kaur, AIR 1977 Punj & Har 257. In that case, the plaint and the verification was not signed by the plaintiff, but by his lawyer. But the plaintiff in the witness box supported all the averments made in the plaint. The court observed that the counsel for the plaintiff was presumed to be acquainted with the facts of the case. So the verification of the plaint made by him can be accepted. Moreover, it is a defect which only amount to an irregularity and can be ignored for rejecting the plaint. It was also held that legal position is that want of verification has not the effect of making the plaint void and it merely amounts to an irregularity. Regarding signing of the pleadings although the High Court recorded that decisions are not uniform, the prominent view is that irregularity in signature of a plaint is a mere defect of procedure and does not affect the jurisdiction of the Court.” Referring the same, Learned Senior Counsel submitted that in view of the provision of Section 99 of CPC, there is no scope to reverse the judgment delivered by the Learned First Appellate Court for any error, defect or irregularity in any proceeding, not affecting the merit of the case or the jurisdiction of the Court. Finally, Learned Senior Counsel urged for dismissal of this appeal as no substantial questions of law leans in favour of the present appellant of this appeal. 10. I have heard both the sides at length and perused the judgment delivered by Learned First Appellate Court and also gone through the citations referred by Learned Senior Counsel appearing on behalf of the respondent-plaintiffs. At the time of hearing Learned Senior Counsel for the appellant drawn the attention of the Court referring Section 96 of CPC which provides as under: “96. Appeal from original decree.- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decision of such Court. (2) An appeal may lie from an original decree passes ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties. (4) No appeal shall lie, except on a question of law, from a decree 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 ten thousand rupees.” From the aforesaid provision, it appears that appeal may be preferred from every decree passed by any Court exercising original jurisdiction. Here in the case at hand, the original title suit and the counter claim were clubbed together in the same suit and both the parties adduced common evidence and finally on conclusion of trial Learned Trial Court delivered a common judgment and decree was prepared accordingly. 11. Now, the question which was raised by Learned Senior Counsel for the appellant at the time of hearing that whether a single common appeal was maintainable in the instant matter or not. In this regard, Learned First Appellate Court at the time of delivery of judgment relied upon and discussed the decision of the Hon'ble Supreme Court of India in Premier Tyres Limited vs. Kerala State Road Transport reported in AIR 1993 SC 1202 wherein in para Nos.3 and 4 Hon'ble the Apex Court observed as under: “3. The validity of this finding has been assailed by Shri Raja Ram Aggarwal, the learned Sr. Advocate appearing on behalf of the appellant. It is urged that Section 11 of the Civil Procedure Code does not apply as such. According to him since both the suits were connected and decided by a common order the issue in neither suit can be said to have been decided in a former suit. Therefore, the basic ingredient of Section 11 of the C.P.C. was not satisfied. The submission derives some support from observations in Narhari v. Shanker, that, 'even when there are two suits it has been held that decision given simultaneously cannot be a decision in the former suit'. But this decision was distinguished in Sheodan Singh v. Smt. Daryao Kunwar 1966 SC 1332, as it related to only one suit, therefore, the observations extracted above were not relevant in a case where more than one suit were decided by a common order. The Court further held that where more than one suit were filed together and main issues were common and appeals were filed against the judgment and decree in all the suits and one appeal was dismissed either as barred by time or abated then the order operated as res judicata in other appeals, 'In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail'. In Shri Ramagya Prasad Gupta v. Sri Murli Prasad, an effort was made to get the decision in Sheodan Singh (supra) reconsidered. But the Court did not consider it necessary to examine the matter as the subject matter of two suits being different one of the necessary ingredients for applicability of Section 11 of the C.P.C. were found missing. 4. Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences follows when a judgment or decree in a connected suit is not appealed from.” Learned Trial Court further referred another judgment of the Hon’ble Bombay High Court in Nilkanth vs. Sri Vidyanand in second appeal No.464 of 2016 dated 03.05.2018 wherein in para No.27, the said High Court observed as under: “27. ..... It was held that in the facts of that case, filing of one appeal where there was one trial and one finding could not be said to be in contravention of any provision of the code of Civil Procedure, 1908. In that context, it does not appear that the ratio of the aforesaid Judgment is that in every case where there is a decree passed by a trial court decreeing the suit and dismissing the counter claim, only one appeal can be filed or that filing of two appeals would be contrary to law.” And finally Learned Trial Court relied upon judgment of the Hon'ble Supreme Court of India in Narhari (supra) and came to the conclusion that one common appeal is maintainable when there has been one trial, one finding and one decision. 12. 12. In the case at hand although the appellant before the Learned First Appellate Court challenged the dismissal of the suit filed by the plaintiffs but in the relief portion plaintiffs as appellant before the Learned First Appellate Court prayed for setting aside the judgment and decree of both the title suit and counter claim and finally Learned First Appellate Court was pleased to modify the judgment of the Learned Trial Court in respect of suit filed by the plaintiffs now the respondent herein but uphold the judgment of the Learned Trial Court in respect of the counter claim filed by the original defendants now the appellant herein. 13. The citations referred by Learned Senior Counsel Mr. S.M. Chakraborty in this regard appears to be more significant and I do not find any perversity or irregularity in the judgment delivered by the Learned First Appellate Court regarding disposal of common appeal against the judgment passed in TS/105/2016 and TS(CC)/6/2017. Page 17 of 20 14. Further, I would like to refer the relevant provision of Section 99 of CPC which provides as under: “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court: Provided that nothing in this section shall apply to non-joinder of a necessary party.” From the aforesaid provision it appears that no decree be reversed or varied on the ground of any error, defect or irregularity in any proceeding in the suit not affecting the merits of the case or jurisdiction of the Court. Here in the case at hand Learned Senior Counsel for the appellant at the time of hearing could not place any materials before the Court regarding any error defect or irregularity in the suit save and except the plea that two separate appeals were required to be filed but on bare perusal of the aforesaid provision and the citation referred by Learned Senior Counsel of the Hon'ble Gauhati High Court as stated above, I do not find any scope to take a reverse opinion, which has been decided by the Learned First Appellate Court at the time of delivery of judgment and the principle of citation referred by Hon'ble Gauhati High Court also appears to be more significant for decision of this present appeal. 15. 15. Regarding filing of deficient court fees, it appears that before the Learned First Appellate Court, no such plea was taken by the present appellant, rather, it appears that the issue regarding non- filing of requisite court fees could not be raised before the Learned First Appellate Court, and in view of Section 149 of CPC, there is scope for filing of deficient court fees subject to the decision of the Court. The respondent-plaintiffs as appellants in TA/17/2021 challenged the judgment of TS/105/2016, but in the relief portion, they sought for setting aside the common judgment delivered by Learned Trial Court in TS/105/2016 and TS(CC)/6/2017 and the respondent-plaintiffs as appellants only determined the value of the appeal in respect of TS/105/2016 and paid ad valorem court fee but no court fees was submitted/deposited in respect of TS(CC)/6/2017. However, at the time of hearing, Learned Senior Counsel referred one citation of the Hon'ble Supreme Court in Tajender Singh Ghambhir(supra) wherein Hon'ble the Apex Court clearly observed that the Appellate Court also can exercise the same jurisdiction which can be exercised by the Learned Trial Court in the proceeding of the suit. Here in the case at hand, it appears that although both the judgment and decree of the TS/105/2016 and TS(CC)/6/2017 were challenged by the respondent-plaintiffs as appellant in TA/17/2021, but the appellant deposited ad valorem court fees only in respect of the appeal filed against the judgment and decree in TS/105/2016, although no separate court fees was submitted in TS(CC)/6/2017 by the appellant now the respondent-plaintiff herein. So, the respondent- plaintiffs needs to be deposited the additional ad valorem court fees of similar amount which he deposited before the Learned First Appellate Court at the time of filing of appeal under Section 96 of CPC within a period of 2 months from the date of this judgment. 16. At the time of hearing of argument, Learned Senior Counsel for the present appellant could not place any satisfactory ground before this Court for interference in this second appeal as because no substantial question of law stands in favor of the present appellant. 17. However, from the records of Learned First Appellate Court and Learned Trial Court, it appears that although the Learned Trial Court, by common judgment, disposed of both the main suit and the counter claim, but passed a common decree, which in my considered view, was not proper. Learned Trial Court, at the time of preparation of decree, could prepare two separate decrees for the main suit and the counter claim to avoid any confusion. 18. So, after hearing of both the sides and also after going through the citations as referred by Learned Senior Counsel for the respondent-plaintiffs, I am of the considered opinion that the present appellant has failed to make out any substantial question of law to be decided in his favor, as such, there is no merit in the appeal and accordingly, the same stands dismissed being devoid of merit. 19. In the result, the appeal filed by the appellant-defendant is hereby dismissed. No order is passed as to costs. The judgment dated 22.07.2022 and decree dated 29.07.2022 delivered by Learned Additional District Judge, West Tripura, Agartala, Court No.5 in connection with Case No.TA/17/2021 is hereby affirmed and the same is accordingly upheld. The respondent-plaintiffs be asked to deposit the ad valorem court fees of the same amount which they deposited before the Learned First Appellate Court at the time of filing of first appeal within a period of 2(two) months from the date of passing of this judgment. Only in the event of deposit of balance ad valorem court fees, the respondent-plaintiffs shall be at liberty to avail the benefit of the decree passed by the Learned First Appellate Court in TA/17/2021. With the aforesaid observation, the present appeal stands disposed of. Prepare decree accordingly. Send down the records to the Learned Trial Court and the Learned First Appellate Court along with a copy of this judgment and order. Pending applications(s), if any, also stands disposed of. JUDGE Deepshikha MOUMITA DATTA Digitally signed by MOUMITA DATTA Date: 2025.08.29 16:28:26 -07'00'