1. The appellant/Plaintiff' has filed the present second appeal being aggrieved by the judgment dated 12.7.2017 by which the first appeal has been dismissed as not maintainable.

2. The appellant/plaintiff filed the suit seeking relief of declaration and permanent injunction in respect of the land bearing Survey No. 1332, area 0.209 hectares . He sought declaration to the effect that, he is entitled for correction of entries by way of decree of the area of the land which has wrongly been recorded as 0.209 hectares in place of 0.245. Vide order dated 6.8.2015, the suit was directed to be registered and the summons were issued to the defendants. By 11.9.2015, both the defendants have filed their written statement. Vide order dated 13.10.2015, the suit was fixed for framing of issues and the parties were directed to submit their list of witnesses. Vide order dated 21.11.2015, the case was fixed for plaintiff's evidence on 18.11.2015. On 18.11.2015, the counsel for the plaintiff has filed application seeking adjournment that the plaintiff is not present in the Court due to his health condition. Learned trial Court has declined to adjourn the case and dismissed the suit for want of evidence.

3. Being aggrieved by the aforesaid order dated 18.11.2015 the plaintiff preferred an appeal under section 96 of the CPC. Learned Additional District Judge vide order dated 12.7.2017 has dismissed the appeal as not maintainable, hence, the present second appeal before this Court.

4. In this second appeal, the appellant has proposed following substantial questions of law for admission of this appeal :

"A. Whether the lower appellate Court has committed an illegality in dismissing the appeal as unmaintainable by misconstruing the provisions of Order XVII rule 2 and Order IX CPC and without considering that the dismissal of the suit for want of evidence would amount to a decree which can be assailed under section 96 CPC.?

B. Whether the course adopted by the trial Court in dismissing the suit for want of evidence on the very first date fixed for recording the evidence, without considering the provisions of proviso to other XVIII rule 1 CPC is perverse and illegal? "

5. The sole question involved in this appeal is whether the first appeal filed by the plaintiff is maintainable under section 96 of the CPC for want of the decree and if first appeal is held to be maintainable, then the present second appeal would also be maintainable.

6. Under section 96 of the CPC, the appeal shall lie from every decree passed by any Court exercising its original jurisdiction. The word "decree" is defined in section 2(2) of CPC and according to which a decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint but shall not include any order of dismissal for default.

7. In case of Banarsi and others v. Ram Phal, reported in (2003)9 SCC 606, the apex Court has held as under :

"8. sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal, (1967) 3 SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd., (1970) 3 SCC 573; Smt. Ganga Bai v. Vijay Kumar and ors., (1974) 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment."

7. In the p