( 1 ) THIS is a plaintiffs appeal arising out of a suit for declaration of the plaintiffs right, or in the alternative, for possession over certain zamindari property specified at the foot of the plaint.

( 2 ) ACCORDING to the plaint the plaintiffs father Beni Prasad Pande and Jamna Prasad Pande were real brothers and they were joint. Jamna Prasad died on 23-11-1943, leaving behind him his widow Smt. Ramraji who was defendant No. 2 in the court below and a daughter Smt. Chhabraji, defendant No. 1. Both of them are dead and it is the adopted son of Chhabraji who is respondent in the present case.

( 3 ) THE plaintiffs case was that according to the Hindu Womens Right to Property Act, Smt. Ramraji was only entitled to a widows estate but she surrendered the same in his favour by executing a deed dated 31-1-44 by virture of which the plaintiff said, he became the exclusive owner and was entitled to the declaration, or if he is found to be out of possession, the possession of the plots in dispute. After the deed of surrender the plaintiff applied in the revenue Court for the mutation of his name which was opposed by Smt. Chhabraji, defendant No. 2, and on her opposition his name was not brought on the record and this has necessitated the suit. Defendant No. 1 denied that the plaintiff and her husband Jamna Prasad formed a joint Hindu family and she also denied the execution of any deed of surrender. She pleaded that Jamna Prasad died in a state of separation. She also denied that Smt. Ramraji was the widow of Jamna Prasad, and according to her, the wife of Jamna Prasad had predeceased him and the deed executed by the so called Ramraji was not binding and it was a fictitious transaction, Smt. Ramraji did not contest the suit.

( 4 ) SEVERAL issues were framed on the pleadings, but there had been a statement by counsel for the parties to the effect that only decision on issue No. 1 may bo arrived at and if the decision was in favour of the plaintiff then the suit should be decreed irrespective of the other defences and if the decision on that issue was against the plaintiff then the plaintiffs suit should be dismissed. Issue no. 1 was to the following effect ;

"was Jamna Prasad at the time of his death, in 1943 a member of a joint Hindu family?" the trial court considered the evidence on the record and came to the conclusion that Jamna prasad was joint, and decided the issue in favour of the plaintiff and, therefore, decreed the suit. Against that decision the defendant went up in appeal and the appellate court has come to a contrary finding, namely, that Jamna Prasad was separate at the time of his death and, therefore, dismissed the suit. Against that decision the plaintiff has come in appeal to this Court.

( 5 ) THE first ground which has been argued by learned Counsel for the appellant is that the decree passed by the trial court was a consent decree and, therefore, on account of Section 96, C, P. C. , no appeal lay to the lower appellate court, hence the decree passed by the lower appellate court was without jurisdiction. This ground was not taken by the plaintiff before the lower appellate court, nor has it been taken in the grounds of appeal though as many as 19 grounds have been taken in the case, which cover three typed foolscap pages. However, I do not think there is much substance in that argument.

( 6 ) LEARNED Counsel for the appellant had placed reliance on several authorities which, in my opinion, do not touch the point in dispute at all and they are not relevant for the decision of the present appeal.

( 7 ) LEARNED Counsel far the appellant while placing reliance on the authorities argued that if the court adopts a special procedure, or if the matter is referred to the decision of the court or to a certain person then in that event, the decision arrived at is a consent decree and no appeal would he. I cannot, and I do not, doubt the correctness of this proposition, and this is what all the authorities