M. Krishnappa vs Smt. Lakshmamma and Others

This appeal u/s 96 of the CPC by the second defendant is against an observation/finding in the judgment dated 29-10-1995 in O.S. No. 4819 of 1986 on the file of the II Additional City Civil Judge, Bangalore City. Respondents 1 to 5 in the appeal are the plaintiffs 1 and 2 and defendants 1, 3 and 4 respectively.

Heard the learned Counsel for the appellant and respondents 1 and 2. This appeal arises this way.-

Plaintiffs at the first instance sought for permanent injunction against respondents 1 to 4 in respect of a portion of the land in Sy. No. 2/5 of Bommasandra Village, Yelahanka Hobli, Bangalore North Taluk measuring 175 feet East to West and 60 feet North to South including certain foundation, Ashwathakatte, Banyan tree in the said land. However during the pendency of the suit, they sought for declaration of their title to the property by way of an amendment. The second defendant resisted the suit contending inter alia that the said property did not form part of the land in Sy. No. 2/5 nor the said land was in possession of the plaintiffs at any time. However he claimed that the said site/land was granted to him by the authorities under Grant Certificate, Ex. D-6.

On the strength of those pleadings, the following two issues and another additional issue were framed.-

''''(i) Does plaintiff proves that he was in lawful possession of plaint schedule site on the date of filing the suit as owner?

(ii)Whether plaintiff is entitled to permanent injunction prayed for?

Additional Issue:

Whether the plaintiffs prove that they are the owners of the plaint schedule property?"

The burden of establishing all the three issues were on the plaintiffs. The parties led evidence. The learned Judge after hearing the parties and considering the evidence both oral and documentary, by the judgment impugned recorded findings on all the three issues against the plaintiffs and accordingly, dismissed the suit. However, while dismissing the suit, made an observation in para 12 of the judgment that the second defendant has not proved his title to the suit property. The observation reads thus.-

"I hold the second defendant also not proved any title to the suit property".

Aggrieved by the said observation/finding of the Trial Court in para 12 of the judgment, the second defendant on 29-1-1996 preferred this first appeal u/s 96 of the Code of Civil Procedure. The only prayer sought for by the second defendant-appellant is to set aside the observation in para 12 of the judgment.

The plaintiffs also on 2-4-1996 preferred First Appeal RFA No. 217 of 1996 against the above said judgment and decree, dismissing their suit. The second defendant-appellant herein was the second respondent in the appeal in RFA No. 217 of 1996. This appeal came to be dismissed on 3-6-1996 on merits after hearing the learned Counsel for the appellants and also respondent 2.

The only point that would arise for consideration in this appeal is.-

Whether an appeal u/s 96 of the CPC against an observation/finding in the judgment in a suit is maintainable?

The answer is in the negative for the reasons stated hereunder.-

Section 96 of the CPC provides for an appeal against every decree passed by the Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Sub-section (2) of Section 2 of the CPC defines the expression "decree" which 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. In the instant case, the plaintiffs'' suit was for declaration of their title and for permanent injunction restraining the defendants and their men from interfering with their possession over the said property. Issues settled in the suit required the plaintiffs to establish their title to the property, possession and interference. No issue was framed throwing the burden of proving it on the second defendant. The Trial Court after considering the evidence came to the conclusion that the plaintiffs have failed to establish their title to the property and also possession. Accordingly dismissed it. In a suit of this nature, the defendant was not required to establish his title. The Court perhaps while considering the evidence of the plaintiffs has incidentally considered the case of the defendant and made a passing observation that the defendant has not established his title to the property. Assuming that this finding is adverse to the interest of the 2nd defendant, the 2nd defendant had other courses open to him which he did not avail. The plaintiffs filed regular first appeal challenging the dismissal of the suit in which the present appellant (second defendant) was represented, the second defendant could have availed the opportunity and contended that the observation/finding against him in the matter of title to property in dispute was unwarranted and required to be removed or expunged or could have filed cross-objections as provided under Order 41, Rule 22 of the CPC, he could have perhaps moved the very Court which passed the judgment and decree for review or modification or for removing the observation by resorting to Order 47, Rule 1 of the CPC. The second defendant did not avail any one of those provisions but comes to this Court u/s 96 of the CPC.

The observation sought to be set aside is not even a finding on any issues in the suit. At best it can only be construed as a passing observation which would not adversely affect the second defendant, since there is no issue on the point nor a finding thereon. I find no merit in the contention that in the event of a fresh suit by the plaintiff against the second defendant in respect of the same property, the said observation would affect him adversely.

The Supreme Court in Smt. Ganga Bai v Vijay Kumar and Others, considering the scope and purport of Section 96 of the CPC declared that an appeal u/s 96 against a mere finding is not maintainable. True, certain substantial amendments were brought to the CPC in the year 1976 by Act 104 of 1976, but there is no change in Section 96 or any substantial change in Section 2(2) of the CPC.

The facts and circumstances that came up in the said case are almost identical. Plaintiff had filed the suit to enforce the mortgage. The defendants who are father and sons contended that there was a partition amongst them on January 11, 1956 (mortgage being on 24-3-1953) and in the partition the mortgaged property fell to the share of the defendants 2 and 3. On an issue relating to the genuineness of the partition, the Trial Court recorded a finding that it was a sham and colourable transaction and its object was to delay or defeat the creditors. Plaintiff''s suit was decreed in part and the plaintiff challenged that portion of the judgment disallowing the claim against defendants 2 and 3 in First Appeal No. 40 of 1959. The defendants 2 and 3 filed Appeal No. 72 of 1959 challenging the finding regarding the genuineness of the partition.

In regard to the appeal by the defendants 2 and 3 the Apex Court made this observation which reads thus.-

"A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the dear authority of law. That explains why the right of appeal is described as a creature of statute.

xxx xxx xxx 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".

The learned Counsel for the appellant relied on the decision of this Court in Laxmiah and Others v Chikkamma and Another. In that case, the question was whether a time barred appeal can be treated as cross-objections. But that is not the point in the instant case. On the other hand this Court in Honnayya v Yellawwa , has said that a finding on an issue not being a decree, is not appealable.

The present appeal being one challenging only the observation/finding, there being no issue on the point, and in view of the decision of the Supreme Court, the appeal by the second defendant challenging the said observation or finding is clearly not maintainable.

In the result, this appeal is dismissed. But in the circumstances of the case, I direct each party to bear their own costs.