R. PRASAD, J. :- This is a plaintiff's first appeal against the judgment and decree of Sri Mohammad Tufail Ahmad. I Civil Judge, Saharanpur, dated 5th July 1954 in Original Suit No. 109 of 1950. This first appeal was connected with another First Appeal No. 298 of 1954, which was filed by one of the defendants from the same decree. That first appeal, however, is now no more before us inasmuch as the appellants of that appeal entered into a compromise with the plaintiffs on the basis of which, the appeal was dismissed. The only appeal which is now before us is First Appeal No. 397 of 1954.

2. Pandit Gopi Nath Kunzru, learned counsel for the plaintiff-appellant has argued the appeal before us on behalf of the plaintiff-appellant.

3. Before we deal with the appeal, it is necessary to dispose of a preliminary objection raised by the learned counsel for the appellant himself, to the effect, that this Court is not properly constituted and that the appeal cannot be heard. The two pronged arguments advanced by Pandit Gopi Nath Kunzru , learned counsel for the appellant, is that when the office of Chief Justice of this Court fell vacant as a result of the elevation of Hon'ble Mr. Just