Honnayya vs Yellawwa

This is a plaintiff''s second appeal against the, judgment and decree dated 24-7-1972, passed by the Civil judge, Gulbarga, in RA No. 184 of 1970 on his file, allowing the appeal, on reversing the judgment and decree dated 31-8-1970, passed by the Munsiff, Shorapur, in O.S. No. 41, of 1969 on his file and, dis-allowing the cross-objections filed by the plaintiff.

The plaintiff instituted the suit for injunction. It was resisted by the defendant. The trial Court raised the following issues as arising from the pleadings:

(1) Does plaintiff prove that he is in lawful possession and enjoyment of the suit land?

(2) Does plaintiff further prove that the defendant interfered with his possession and enjoyment since 2-4-1969?

(3) To what relief the parties are entitled?

The trial Court, appreciating the evidence on record, held under Issue No. 1 that the plaintiff was in lawful possession of the, suit land on the date of the suit. But, it dismissed the suit holding that. the plaintiff did not establish any interference on the part of the defendant.

Aggrieved by the finding on first issue, the defendant went up in appeal before the learned Civil Judge, Gulbarga. The, learned Civil Judge, as stated above, allowed the appeal and set aside the finding on Issue No. 1 given by the trial Court

It is against that judgment and decree, the present Second Appeal is instituted by the plaintiff.

The learned Counsel appearing for the appellant vehemently contended that no appeal could lie before the learned civil judge as the suit itself was dismissed and that was in favour of the defendant. He submitted that the decree was one of dismissal of the, suit and there could not be any appeal on a finding given on an issue.

As against that, the learned Counsel appearing for the respondent argued supporting the reasoning of the learned civil judge.

The sole point, therefore, that arises lor my consideration in this appeal is, whether any appeal against the finding of an issue could lie to the civil judge.

It is well settled that an appeal lies under S. 96 CPC against a decree. A mere, finding on an issue in a suit where the, suit itself is dismissed cannot be constructed as a decree. When the suit itself is dismissed, a finding on an issue, even if it is against the defendant, will not be final against him. It will not act as res judicata.That being so, a mere finding on an issue cannot be considered a decree.

In fact, the Supreme Court of India had an occasion to consider this aspect in the case of Ganga Bai v. Vijay Kumar, AIR. 1974 SC. 1126. His Lordship Chandrachud, J., as he then was, who delivered the judgment for the Bench has clearly observed in the decision that right of appeal is a creature of statute and that a mere finding on an issue, would not amount to a decree. Speaking on this aspect in paras 16 and 17 of the judgment, His Lordship observed thus:

"16. Under S. 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. S. 100 provides for a second appeal to the High Court from an appellate decree passed by a Court subordinate to the High Court. S. 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 (1) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules," Order 43, R. 1 of the Code, which by reason of cl. (1) of S. 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 S. 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.

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 He against a mere finding for the simply 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."

The learned civil judge has entirely missed the point in holding that a finding on an issue amounts to a decree. His finding is highly erroneous and illegal. That being so, I am constrained to hold that the appeal could not lie before the learned Civil Judge and also the cross objections as the appeal itself was not tenable.

In the result therefore, the appeal is allowed. The decree of the learned civil judge is set aside and the judgment and decree of the trial Court are sustained, and restored.

No costs.