Madhya Pradesh High Court
Gendalal And Anr. vs Raghunath (Dead) Kamod Singh And Ors. on 26 September, 2006
Author: Rajendra Menon
Bench: Rajendra Menon
JUDGMENT Rajendra Menon, J.
1. This second appeal under Section 100 of the Code of Civil Procedure, Tiled by the defendants was admitted on 16-1-97 for consideration of the following substantial question of law:
(I) Whether after dismissal of the suit filed by the plaintiff, an appeal by one defendant against another defendant is maintainable?
2. The suit in question was filed by the plaintiff Balram against the defendants so also against the respondent No. 2 Kamod Singh inter alia claiming his right to. the suit property on the basis of adverse possession. Various issues were framed and finally it was held by the Trial Court that the claim made by the plaintiff is not established, accordingly suit was dismissed. In the suit defendants Raghunath and respondent No. 2 Kamod Singh took a plea that they are in possession and they claimed their right by virtue of the sale deed dated 11-5-1972 executed in their favour. Even though the suit was dismissed a observation was made that defendant Raghunath and respondent No. 2 Kamod Singh has failed to prove the sale deed executed in their favour and therefore, their contention in the written statement was negatived.
3. Even though the suit was dismissed and no relief was granted to the plaintiff, but as the sale deed dated 11-5-1972 by which defendants Raghunath (now dead) and Kamod Singh had purchased the property was held to be not established they filed a first appeal under Section 96 of CPC, before the learned Additional District Judge and by the judgment and order impugned the findings recorded with regard to the sale deed being not proved has been set aside and it has been held by First Appellate Court that when no relief was claimed for setting aside the sale deed it was not necessary for the Trial Court to frame issue on this issue and record the finding. Challenging the interference made in this regard by the First Appellate Court, this second appeal is filed on the ground that the co-defendant Raghunath and Kamod Singh were not entitled to file appeal under Section 96 of CPC.
4. Shri Shishir Saxena argued that an appeal under the provision of Code of Civil Procedure is maintainable only if the decree passed is adverse to the person concerned, it was submitted by him that until and unless a decree adversely effects the person, the person concerned is not entitled to file an appeal, he draws support to the aforesaid proposition by placing reliance on the following judgments of the Supreme Court, i.e., Banarsi and Ors. v. Ramphal and Smt. Ganga Bai v. Vijay Kumar and Ors. . Inviting my attention to the finding recorded and the decree passed Shri Shishir Saxena, learned Counsel for the appellants argued that a mere finding recorded by a Court of competent jurisdiction cannot be challenged in an appeal until and unless a decree to that effect is made, accordingly Shri Saxena, learned Counsel for appellants prays for answering the question framed in this second appeal in favour of the plaintiffs by holding that the appeal filed by the defendants Raghunath and Kamod Singh were not maintainable.
5. Refuting the aforesaid Shri S.S. Rajput, Counsel for respondents submits that any finding recorded by a Court of competent jurisdiction which adversely effects the right of a person can be challenged by filing an appeal by a person against whom the said finding is recorded as any "aggrieved person" is entitled to file an appeal. Placing reliance on certain observations made by the Supreme Court in the case of Smt. Ganga Bai v. Vijay Kumar and Ors. (supra), so also inviting my attention to the observation made by a Bench of this Court in the case of Ramnarain v. Smt. Ramkumari Devi 1990(1) M.P. Weekly Notes 287, Shri Rajput submitted that as the finding recorded with regard to the sale deed executed in favour of the Raghunath and Kamod Singh is declared not proved the said finding adversely effects the right of these persons and as this finding will always operates as res judicata, the appeal was maintainable at the instance of Raghunath and Kamod Singh and therefore, Shri S.S. Rajput, Counsel for the respondents seek for dismissal of this appeal by answering the question framed in favour of defendants.
6. The question therefore, now in this appeal is as to whether the first appeal was maintainable against a mere adverse finding recorded when the suit was dismissed and no decree was passed in the suit. Supreme Court in the case of Banarsi and Ors. v. Ramphal (supra), has held that when no decree is passed appeal under Section 96 is not maintainable. In Para 8 of the aforesaid judgment it has been laid down that an appeal under Sections 96 and 100 of the Code of Civil Procedure will only lie against a decree. It is held that a mere finding or judgment is not enough for the purpose of maintainability of an appeal. The aforesaid judgment is passed on the basis of an earlier judgment of the Supreme Court in the case of Smt. Ganga Bai v. Vijay Kumar and Ors. (supra), on this question there are series of judgments rendered by High Court, which indicates that an appeal under Section 96 is only maintainable against a decree and an appeal against a mere finding or judgment is not maintainable. However, while considering the question, Calcutta High Court in the case of Hara Chandra Das v. Bhola Nath Das (1935) ILR 62 Cal. 701, held that if the finding operates as res judicate and is likely to adversely effect a party in any subsequent proceeding then the party has a right to appeal, even if the suit has dismissed and no decree is passed. This judgment of the Calcutta High Court was considered by the Supreme Court in the case of Smt. Ganga Bai v. Vijay Kumar and Ors. (supra). In the aforesaid judgment, it has been held by the Supreme Court that under the Code of Civil Procedure an appeal lies only against a decree or against an order passed under the rules from which an appeal is expressly allowed under Order 43 Rule 1 of CPC. In Para 17, it has been specifically held by the Supreme Court in the said case that no appeal can lie against a mere finding for the simple reasons that the Code does not provide for any such appeal, thereafter the question was again examined in the light of adverse effect on a party and the finding operating as res judicata, after considering the judgment of Calcutta High Court in the case of Mara Chandra Das v. Bhola Nath Das (supra), Supreme Court left the question open and did not express its view either way on the ground that it is not necessary to do so. However, it has been held in this case by the Supreme Court that until and unless a decree is not passed, no appeal is maintainable. That being so from the settled legal principles it is clear that in the present case as the suit has been dismissed and no decree is passed appeal was not maintainable. However, the question that requires consideration is as to whether in view of the adverse finding recorded against the deceased respondents Raghunath and Kamod Singh they had a right to challenge the said finding by filing an appeal. This question is considered by various High Courts and I propose to deal with the views taken by the various High Courts in the matter. A Full Bench of Patna High Court has considered this question in the case of Arjun Singh and Ors. v. Tara Das Ghosh and Ors. , and after considering the legal principles it is observed by the Full Bench that, it is well settled that a party against whom a finding is recorded has got right to appeal even though the ultimate decision may be in his favour. However, such a right is available only if the finding can operates as res judicata in a subsequent suit or proceedings it is held by Full Bench that if finding does not operate res judicata then no right to appeal is accrues. Matter was again considered in the year 1977 in the case of Banarsi Sah and Ors. v. Bhagwanlal Sah and Ors. , in this case it was held that when a decree passed in a suit is wholly in favour of one party they cannot file appeal against such a decree merely because some finding is recorded against them in the suit. After considering the provisions of Section 96 of CPC, it has been held by Patna High Court that no appeal is maintainable, firstly on the ground that the decree passed is not adverse to the aggrieved party and as there is no decree with regard to this fact, right to file appeal does not exist, it is further held if the aggrieved person has no right to appeal against the finding the same will not operate as res judicata. This principle of a finding not operating as res judicata in the absence of a right to appeal being available is considered by the Rajasthan High Court also in the case of Tarn Singh v. Smt. Shakuntala AIR 1974 Rajasthan 21, and after following the judgment of a Division Bench of the same High Court so also certain judgments of the Punjab High Court it has been held that if against the adverse finding recorded the person aggrieved cannot file an appeal then the said finding will not operate as res judicata. The question is again considered by the Patna High Court in case of Jugal Kishore Singh and Ors. v. Sheonandan Singh and Ors. , so also Andhra Pradesh High Court in the case of Konda Lakshman Bapuji v. The State of Andhra Pradesh and Ors. and by Madras High Court in the case of Corporation of Madras v. P.R. Ramachandrish and Ors. and Ram Mohan and Co. and Anr. v. Ganesar Ginning Co. P. Ltd., Coimbatore and Ors. AIR 2000 Madras 1 and in the case of Ramesh Chandra v. Shiv Charan Dass and Ors., a complete reading of all these judgments indicate an appeal under Section 96 or 100 of Code of Civil Procedure is not maintainable only against an adverse finding if it does not found part of the decree. Even though a finding is adverse to a party concerned the right to file appeal against such a finding is available only if the same operates as res judicata in a subsequent case. The question as to how a finding will operate as res judicata in a subsequent proceeding is considered by Andhra Pradesh High Court in the case of Konda Lakshman Bapuji v. The State of Andhra Pradesh and Ors. (supra), after considering an earlier judgment on the question it has been held that a finding can be challenged if the finding operates as res judicata and is binding on the aggrieved party in the future also it is explained that if the decree could be passed even without deciding the issue against the aggrieved persons then the finding will not operate as res judicata. Accordingly the question would be as to whether the decree in the present suit could be passed without recording the adverse finding against the defendant Raghunath and respondent No. 2 Kamod Singh.
7. The suit in question was filed by plaintiffs claiming their right to possession on the base of adverse possession in the said suit Raghunath and Kamod Singh contended that they are in possession by virtue of a sale deed executed in their favour, even though it is held that execution of the sale deed is not proved however the suit is dismissed on the ground that adverse possession is not established by the plaintiffs.
8. As far as the sale deed dated 10-5-72 is concerned execution of which was alleged by the defendants Raghunath and Kamod Singh it did not effect the final conclusion and outcome of the suit either way, the suit was not dismissed on the ground of sale deed being executed or not. It is therefore, clear that the judgment and decree passed dismissing the suit was based on an independent assessment of the material available on record and the finding recorded by the Courts below that execution of the sale deed is not proved did not have any bearing on the finding outcome of the case that being so it has to be held that the said finding does not operate us res judicata against Raghunath and Kamod Singh and in that view of the matter they had no right of filing an appeal.
9. In the case of Ramesh Chandra v. Shiv Charan Das and Ors. 1990 (Supp.) Supreme Court Cases 633, it has been held by the Supreme Court that one of the test to ascertain if a finding operates as res judicata is if the party aggrieved could challenge it. It is, therefore, clear that if a party aggrieved by a finding is unable to challenge the finding by filing an appeal then the said finding will not operate as res judicata. That being so it has to be held in the present case that the finding recorded against the respondents in the facts and circumstances of the case will not operate as res judicata against them. In a case where a decree is absolutely in favour of one of the party but if some issue is decided against him then the party against whom the issue is decided does not have any right to file appeal because he is not adversely effected and as the finding is not embodied in the decree it does not form part of the decree and therefore, no right to appeal accrues to the said party. Keeping the principles as indicated hereinabove it has to be held that the first appeal filed by the respondents was not maintainable.
10. Accordingly the question framed is answered by holding that after dismissal of the suit filed by the plaintiff an appeal by one of the defendant against another defendant was not maintainable. Accordingly answering the question framed in favour of the appellant appeal stands allowed and disposed of with the observation made as indicated hereinabove.