The court held that the adjournment cost of Rs. 50/- was not arbitrary or imposed by way of penalty, but was imposed on judicial principles. The court also held that the appeal was competent as the decree was under Order 17 Rule 3 and not Order 17 Rule 2 of the Code of Civil Procedure. The court further held that the findings of fact by the lower courts could not be upset in a second appeal.

JUDGMENT:- This appeal is by the principal defendant, Junaram Bora (hereinafter referred to merely as the defendant.)

2. The plaintiff filed a suit for declaration of her title and confirmation of possession in respect of the suit land measuring 1 katha and 1/2 lecha being half of the total land covered by Dag No. 377. Her case is that the total land covered by dag No. 377 was the joint property of her husband Krishnaram and his brother Mihiram, who had equal shares in the land. The land was partitioned during the lifetime of her husband and the eastern half fell to her husbands share and he was in possession thereof. Before his death the husband made a gift of the suit land together with some other property under a registered deed of gift date 18-7-32 and since then she was in physical possession of the land. The defendant set up his title to the suit land and threatened to dispossess the plaintiff. Hence she filed the present suit.

3. The defendant does not deny that the property in question was the joint property of Krishnaram and Mihiram. His case is that on the death of Mihiram his shares devolved on his daughter Moina, who was enjoying her fathers share jointly with Krishnaram. During 1942-43 there was an amicable partition of the property and Moina got the entire land of dag No. 377 and Krishnaram got his share elsewhere. Moina died leaving a minor son, Puspa. Kamala, Moinas husband, sold the land on behalf of Puspa to one Jadunath by a registered deed of sale on 8-12-1949 and delivered possession. In turn Jadunath sold the land to the defendant by a registered deed of sale on 9-12-1949.

4. The Munsiff decreed the plaintiffs suit.

5. In order to appreciate the points raised before me a few further facts need be stated. The suit was filed in Court of Munsiff on 11-7-1969 and it was protracting, several adjournments having been given for one reason or other. One of the adjournments was granted on 11-12-1970 on which date the suit was fixed for peremptory hearing. On that date the plaintiff was ready with witnesses but the defendant prayed for an adjournment on the ground of illness. The adjournment was granted and the defendant was directed to pay a cost of Rs. 10/-. Ultimately, after several adjournments thereafter, the suit was fixed for peremptory hearing on 27-7-71. On that date the plaintiff was ready with witnesses, but the defendant prayed for an adjournment on the ground that due to his illness, he could not summon his witnesses. The Munsiff granted adjournment on payment of Rs. 50/- as adjournment cost to be paid on the following date and the case was fixed for peremptory hearing on 3-9-71. On that the date both the parties were ready with witnesses; three witnesses of the plaintiff were examined and the hearing was adjourned till 9-11-71 as there was no time for further hearing. The defendants on that date filed a petition with a prayer for reducing the adjournment cost of Rs. 50/- awarded against him on the previous date. The defendant had to pay altogether adjournment costs of Rs. 60/-. The Munsiff reduced this amount to Rs. 50/-. He ordered that the defendants case would be heard only if he paid the adjournment cost on that date. On 9-11-71 the plaintiff was ready with witnesses, but the defendant filed a petition for adjournment on the ground that his witnesses were ill on that date. The Munsiff rejected the petition on the ground that the defendant had taken no steps to summon his witnesses, that his petition was not verified, and that the motive of the defendant was to prolong the case. Two more witnesses of the plaintiff were examined on that date, but the defendant was not allowed to cross-examine these two witnesses as he had not paid the adjournment cost as directed and 24-11-1971 was fixed for hearing argument. On that date the defendant filed an application stating that he was ready with the adjournment cost and prayed for recalling the plaintiffs witnesses for cross-examination, but the applica