An appeal can proceed without a decree if the judgment is provided, and technical defects do not affect the substantive merits of the case.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Shri Tarun Kumar Pandey, learned counsel for the appellants.

2. Learned counsel for the appellants, while assailing the judgment and decrees passed by the courts below, submits that in the suit for permanent injunction filed by the appellants, an order of interim injunction was passed restraining the respondents from interfering in the peaceful possession of the appellants. However during pendency of the suit a sale deed was executed by respondents of the property in dispute, therefore, by way of amendment the same was challenged in the suit, but neither any issue was framed in regard to the same nor finding was recorded. Being aggrieved, an appeal was filed. He further submits that the decree passed by the trial court was not before the appellate court, whereas an appeal can be filed against the decree under Section 96 of the Civil Procedure Code (here-in-after referred as CPC), therefore, the appeal could not have been decided in it's absence, but without considering it and the grounds raised by the appellants in the appeal, the appeal has been dismissed and the judgment and decree passed by the trial court has been affirmed, therefore the same are not sustainable in the eyes of law.

3. Having considered the submissions of learned counsel for the appellants, I have perused the material placed on records of this appeal and the judgment and decrees passed by the courts below.

4. The suit for permanent injunction was filed by the appellants, in which the interim injunction was granted on 30.04.1988 restraining the respondents from interfering in peaceful possession of the appellants. Therefore it is apparent that there was no restrain in regard to the sale or otherwise of the land in dispute or maintaining status quo of the property in dispute. During pendency of the suit the land in dispute was sold by the respondents, therefore, by way of amendment the sale deed was challenged raising certain grounds. The trial court initially framed seven issues and subsequently three additional issues were framed, out of which the issue no.8 was "Whether the sale deed in dispute shown in list 'B' is liable to be cancelled on the basis of sub-paragraphs of paragraph 4 of plaint?" The trial court after considering the pleadings, material and evidence on record decided the issue no.1 i.e."Whether the plaintiffs are owner and in possession of the land in dispute" and the aforesaid issue no.8 in regard to cancellation of sale deed recording a categorical finding that the appellants have not been found owner and in possession of the land in dispute and in all the revenue record-of-rights, the name of defendant Ram Suman Pandey is recorded alongwith other co-tenure holders, who have not been impleaded by the appellants as defendants in their plaint.

5. The trial court further considering the issue of cancellation of sale deed on the grounds raised in the suit found that the sale deed in question has been executed in accordance with law and it cannot be cancelled on the grounds raised in the suit. Therefore the contention of learned counsel for the appellants that neither any issue was framed in regard to cancellation of sale deed nor any finding was recorded is misconceived and not tenable. Being aggrieved, the appellants filed the appeal before the lower appellate court.

6. The lower appellate court, after framing two points for determination to the effect, "As to whether the appellants are entitled for the reliefs claimed in the plaint in regard to land in dispute on the basis of facts stated in the plaint." and "As to whether the impugned judgment and order passed by the trial court is liable to be interfered with" and after considering the pleadings, evidence and material on record found that the appellants have failed to prove their possession and ownership on the land in dispute Gata No.565Ga and the judgment and decree passed by the trial court has been passed in accordance with law, which is not liable to be