Patna High Court
Jugal Kishore Singh And Ors. vs Sheonandan Singh And Ors. on 26 July, 1972
Equivalent citations: AIR1973PAT22, AIR 1973 PATNA 22
JUDGMENT S. Sarwar Ali, J.
1. This second appeal is by the plaintiffs. They filed the suit for specific performance of contract and for-confirmation of possession and, in the alternative for recovery of possession. Various pleas were raised in the written statement filed by defendants 4 to 6. One of the issues framed in the suit on the basis of the pleas raised by the parties was issue No. 4, which was as follows:
"Is the survey entry with respect to the suit lands incorrect? Whether the lands of Khata No. 136 belonged to defendants Nos. 4 to 6 and Dipan Singh and was in their possession?"
2. The plaintiffs claimed title on the basis of a sale deed executed by defendants 1 to 3 (defendants first party) on the 21st April, 1962 for a sum of Rs. 250/-. . According to defendants second party, namely defendants 4 to 6, the land of Khata No. 136, which was the subject-matter of the suit, did not belong to the defendants first party and it belonged to them and was in their possession. According to them, the entry in the survey record-of-rights was incorrect.
3. The trial Court, on a consideration of the entire evidence in the case, came to the conclusion that the plaintiffs were in possession of the suit land from the days of execution of the sale deed in their favour by defendants 1 to 3. It was also of the view that the case of defendants 4 to 6 in this regard was not correct. Since, however, it came to the conclusion that the sale deed executed by defendants 1 to 3 in favour of the plaintiffs could not confer any title upon them, the plaintiffs were held not entitled to any of the reliefs claimed. Consequently, the suit of the plaintiffs was dismissed.
4. Although the ultimate decision in the suit was in favour of contesting defendants 4 to 6, who are respondents 1 to 3 in this Court, the finding recorded by the trial Court on the question of title and possession being against them, they preferred a title appeal in the Court below. The appellate Court in disposing of the appeal came to the conclusion that the plaintiffs were never in possession of the suit property since their vendors were not competent to make the transfer as they had no subsisting title or possession. On the other hand, it held that, the contesting defendants 4 to 6 had been able to establish their case and had also proved their possession in respect of the suit land. The appeal was, therefore, allowed and the judgment and decree of the learned Munsif finding possession with the plaintiffs-appellants was set aside. The dismissal of the suit was naturally maintained.
5. Mr. Lakshman Sharan Sinha appearing on behalf of the plaintiffs-appellants in this Court contends that the appeal in the Court below was not maintainable, as the decision in the suit being wholly in favour of the defendants 4 to 6, no appeal lay to the Court below. Mr. H.K. Banerjee, learned counsel appearing on behalf of respondents I to 3, on the other hand, contends that the appeal in the Court below was maintainable. He further contends that a second appeal does not lie to this Court.
6. Let me first deal with the technical point regarding the non-maintainability of the second appeal. This point, in my opinion, is covered by a Bench decision of this Court in Ram Ratan Pd. v. Banarsi Lal, AIR 1930 Pat 280. This decision, of course, pre-supposes that the appeal in the Court below was not maintainable. It is, therefore, necessary to consider the main question, namely, whether the contesting respondents were entitled to prefer an appeal in the Court below.
7. Learned counsel for the appellants relies on the decision reported in Tan-sukh Rai v. Gopal Mahto, AIR 1929 Pat 586, which decision itself relies on two Privy Council decisions mentioned in the case. He also relies on the decision in Markanda Mahapatra v. Varada Kameswau Rao, AIR 1949 Pat 197 and some other decisions which I need not mention here.
8. Mr. Banerjee for the respondents 1 to 3, on the other hand, places reliance on the cases reported in (1905) 9 Cal WN 584, (1935) ILR 62 Cal 701, AIR 1957 Hyd 23, AIR 1961 Punj 281, AIR 1917 Pat 350, AIR 1950 Assam 119 and (1885) ILR 7 AH 606 (FB).
9. In my view, the point raised by the learned counsel for the appellants has to be sustained in view of a Bench decision of this Court reported in AIR 1929 Pat 586. This being a Bench decision of this Court, it is not necessary for me to discuss the various cases relied upon by learned counsel for respondents Nos. 1 to 3. It is only if I could find the case reported in AIR 1929 Pat 586 distinguishable from the facts of the present case that it would have been necessary for me to deal with the other cases relied upon by respondents 1 to 3.
10. In Tansukh Rai's case, AIR 1929 Pat 586, the specific question for consideration was whether a party aggrieved against a finding of the Court below was entitled to prefer an appeal under the provision of Section 96 of the Code of Civil Procedure when the decree was in his favour. Dealing with this aspect of the matter, their Lordships relied on the cases of Ram Bahadur Singh v. Lucho Kuer, (1885) 12 Ind App 23 (PC) and Midnapur Zamin-dari Co. Ltd. v. Naresh Narayan Rai, AIR 1922 PC 241, particular reliance was placed by their Lordships on the following passage in the case of,Midnapur Zamindari Co. Ltd., AIR 1922 PC 241:
"The widow has not appealed against the decree, nor could she because it is in her favour, but she has appealed against the finding that the brothers were joint in estate. It may be supposed that her advisers were apprehensive lest the finding should be hereafter held conclusive against her, but this could not be so, inasmuch as the decree was not based upon it, but was made in spite of it."
The words underlined by me are in my view the crucial words. If the decision in a suit is based on findings which are against an aggrieved party, then although the ultimate decision may be in his favour, he may have a right to appeal. But where the decree is not based on those findings, but is made in spite of those findings a right, of appeal cannot be recognised. In this' case the position appears to be that in spite of the findings of the decision of the trial Court that the contesting defendants 4 to 6 had no title and had no possession, a decree was passed in their favour, resulting in the dismissal of the suit. The case, therefore, comes within the ambit of the decision in Midnapur Zamindari Co.'s case, AIR 1922 PC 241, as understood and followed in Tansukh Rai's case, AIR 1929 Pat 586.
In the latter case the plaintiffs were the mortgagees of the two mortgages executed by one Jibdhan Charan, son of Jado Charan. The appellants in the High Court were the subsequent mortgagees (sic) executed by Jibdhan. On the issues raised in the suit, two findings were arrived at by the trial Court. Firstly it was held that the Mauza in question was not the Khorposh Village of Jibdhan. Secondly it was held that so far the mortgages sued upon were concerned, they were executed by Jibdhan as the benamidar of Jado Charan. The estate of Jado Charan having been attached under the provisions of the Chota Nagpur Encumbered Estates Act, neither Jado Charan nor his benamidar could deal with the property. The learned Subordinate Judge dismissed the suit, after arriving at those two findings the first finding being against the defendants, who were the appellants in the High Court. It was contended in the High Court that there was a right of appeal because of the adverse finding that the Mauza in question was not the Khorposh of Jibdhan. Their Lordships held that the defendants had no right of appeal in spite of this finding, as the decree was not based upon it, but was made in spite of it. I find it difficult to distinguish the present case from that of Tansukh Rai's case, AIR 1929 Pat 586 and hold that the contesting respondents were not entitled to prefer an appeal in , the Court below.
11. In this view of the matter, the second appeal has to be allowed. The judgment and decree of the lower appellate Court is set aside and that of the trial Court is restored. It should be clearly understood that the findings arrived at by the trial Court on the question of title and possession of the contesting defendants are not res judicata in this case. If they were, there cannot be any doubt that the appeal in the Court below could have been maintainable. In the circumstances of the case, there will be no order as to costs.