Karnataka High Court
Mr S Sadiq Pasha S/O Late A.R.Abdul ... vs Smt Aktharunnissa W/O Azeezulla ... on 4 July, 2013
Equivalent citations: 2013 (3) AKR 716
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4th DAY OF JULY, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
REGULAR FIRST APPEAL NO.363/2009
BETWEEN:
Mr. S. Sadiq Pasha,
Son of late A.R. Abdul Sattar,
Aged about 62 years,
Residing at No.31, 32 & 33,
Serpetine Street, Richmond Town,
Bangalore - 560 025. ...APPELLANT
(By Sri Shanmukhappa for M/s. Kesvy & Co. Advs.)
AND:
1. Smt. Aktharunnissa,
Wife of Azeezulla Sheriff,
Aged about 64 years,
Residing at No.65, Ground Floor,
BDA Flat, Austin Town,
Bangalore - 560 025.
2. Mr. Mohammed Ghouse Pasha,
Son of A.N.Abdul Sattar,
Aged about 66 years,
Residing at No.7,
Cornwell Cross Street,
Langford Garden,
Bangalore - 560 025.
2
3. Mrs. Zeenathunnisa,
Wife of Syed Asadulla,
Aged about 63 years,
Residing at No.112,
5th Main Road, RMV II Stage,
NGEF Colony, Nagashettihalli,
Bangalore - 560 094. ...RESPONDENTS
(By Sri Rupert M. Rosario, Adv. for R1;
R2 & R3 are served but unrepresented)
This RFA is filed under S.96 of CPC, against the
Judgment and Decree dated 22.01.2009 passed in
O.S.No.7552/1993 on the file of the XXXVIII Addl. City
Civil Judge, Bangalore, dismissing the suit for partition and
separate possession.
This RFA coming on for final hearing this day, the
Court delivered the following:
JUDGMENT
This is a defendant's appeal to set aside the finding of the Trial Court on Issue No.4 and Additional Issue No.3. The Trial Court dismissed the suit and directed the parties to bear their own costs.
2. Appellant was defendant No.1, respondent No.1 was defendant No.2 and respondent Nos.2 and 3 in this appeal were the plaintiffs in O.S.No.7552/1993 on the 3 file of the City Civil Court, Bangalore. For convenience the parties would be referred to hereinafter with reference to their ranks in the Trial Court.
3. Plaintiffs instituted the suit to pass a decree for partition and separate possession of their shares in the plaint 'A' and 'B' schedule properties and for mesne profits of plaint 'A' schedule property. By way of an amendment, plaintiffs sought passing of a decree of declaration that a registered sale deed dated 05.11.1971 executed in the name of defendant No.1 as null and void. Defendant Nos.1 and 2 filed separate written statement and contested the suit. No counter claim/s were made by either of the defendants. Based on the pleadings of the parties, the Trial Court raised the following;
Issues:
1. Whether the plaintiffs prove that 1st plaintiff has got 2/6th share and 2nd plaintiff has got 1/6th share in the schedule 'A' and 'B' properties?
2. Whether the Court fee paid on the plaint is sufficient?4
3. Whether deft No.1 proves that the furnitures in the suit schedule property are his self-acquired furnitures?
4. Whether the 1st defendant further proves that he is absolute owner in lawful possession of suit 'A' schedule property having purchased the same for a valuable consideration under registered sale deed dated 5.11.1971?
5. What order or decree?
Additional Issues:
1. Whether the declaration relief sought for by the plaintiffs is barred by limitation?
2. Are plaintiffs entitled to declaration as sought for?
3. Whether the 2nd defendant proves that she is the absolute owner of that portion of suit schedule 'A' property which is the subject of the Gift Deed to her dt:15.11.1968 and the said portion is not available for partition?
4. For the plaintiffs, plaintiff No.1 got himself examined as PW-1. Defendant got himself examined as DW-1 and marked Exs.D1 to D79 and D94. Defendant No.2 got herself examined as DW-2 and marked Exs.D80 to D93.5
5. The Trial Court, appreciating the evidence brought on record, answered issue Nos.1, 4 & additional issue No.2 in the negative and issue Nos.2, 3 and additional issue Nos.1 and 3 in the affirmative. However, the suit was dismissed in entirety. Aggrieved by the findings on issue No.4 and additional issue No.3, the defendant No.1 has filed this appeal under S.96 of Code of Civil Procedure.
6. Sri Shanmukhappa, learned advocate for the appellant contended that the Trial Court has erred in holding that the defendant No.1 has proved that he became absolute owner of the suit schedule 'A' property, except a portion of 'A' schedule property to the extent of 41 feet 5 inches on north-south and 16 feet 6 inches on east-west, which his mother Smt. Sharfunnisa Begum had gifted and in answering additional issue No.3 in the affirmative by holding that defendant No.2 has proved that she became absolute owner of portion of suit schedule property, which her mother Smt. Sharfunnisa Begum had 6 gifted to her under Ex.D1 - gift deed. He submitted that the said findings recorded on issue No.4 and additional issue No.3 being erroneous and even otherwise unwarranted, warrant interference.
7. Mr. Rupert M. Rosario, learned advocate for respondent No.1/defendant No.2, on the other hand vehemently contended that no appeal can lie, as the suit itself has been dismissed and that the plaintiffs have not filed an appeal or a cross objection. He contended that the decree passed by the Trial Court being one of dismissal of the suit, there cannot be any appeal on the findings given on any of the issue/s.
8. Respondent Nos.2 and 3/plaintiffs, though served with the notice of this appeal, have remained unrepresented.
9. In view the rival contentions and record of the case, point for consideration is 'whether an appeal against the findings on the issue/s could lie?' 7
10. In GADDEM CHINNA VENKATA RAO VS. KORALLA SATYANARAYANAMURTHY, AIR 1943 MAD 698, interpreting Order 41 Rule 22 CPC, it has been held that a party who has succeeded in the result of a decision in spite of one or more of several grounds urged by him having been negated, he cannot and need not appeal as regards the latter grounds, however erroneous the decision because there is no right of appeal to a party who has succeeded.
11. In the case of GANGA BAI Vs. VIJAYAKUMAR AND OTHERS, 1974 (2) SCC 393, Apex Court has held as follows:-
"16. Under Section 96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the Court authorised to hear appeals from the decisions of such court.
Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders". Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". Order 8 43, Rule 1 of the Code, which by reason of clause (i) of Section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof. Finally, Section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction.
17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43 Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by Defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial court."
(emphasis is supplied)
12. In the case of DEVA RAM AND ANOTHER Vs. ISHWAR CHAND AND ANOTHER, (1995) 6 SCC 733, while considering the plea regarding effect of an adverse finding recorded by the Court against a party, in whose favour the suit or the appeal is ultimately decided, it has been held as follows:
"26. It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeal from the decision 9 of such court. So also, Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the 'decree' and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an 'order' under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the 'orders' against which appeal would lie have been enumerated. Unless there is an 'order' as defined in Section 2(14) and unless that 'order' falls within the list of 'orders' indicated in Order 43, an appeal would not lie.
27. Thus, an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v. Vijay Kumar & others: (1974) 2 SCC 393)."
(emphasis is supplied)
13. In the case of BANARSI AND OTEHRS Vs. RAM PHAL, ( 2003) 9 SCC 606, Apex Court has held as follows:
"8. Sections 96 and 100 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 10 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 v. Gopal Lal, AIR 1967 SC 1470, Jatan Kumar Golcha v. Golcha Properties (P) Ltd., (1970) 3 SCC 573 and Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393). No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment."
(emphasis is supplied)
14. In view of the declaration of law by the Supreme Court, in the decisions noticed supra, it is well settled position of law that, an appeal lies under S.96 CPC against a decree and a mere finding on the issue/s in a suit, where the suit itself has been dismissed cannot be construed as a decree. A party who has succeeded in securing the relief prayed for, before the Court below cannot file an appeal only for the sake of clearing himself from the effect of an adverse finding on any issue, as he would not be a person falling within the meaning of the words "person aggrieved". When the suit itself has been dismissed, a finding on any issue, even if it is against the defendant when there was no counter claim will not act as res-judicata. Since a finding 11 on an issue/s in a suit cannot be considered as a decree and there being no decree against the defendant /appellant, this appeal is not maintainable.
In the result, the appeal is dismissed. However, the parties shall bear their respective costs.
Sd/-
JUDGE sac*