R. Maria Siluvai vs B. Sreekumari Amma and three others

The sixth defendant is the appellant in the second appeal. The appeal has been filed challenging the finding of the lower appellate court which

had remanded the matter. A preliminary point regarding the maintainability of the second appeal arises for consideration.

The learned counsel Mr.T.R. Rajaraman relies on the following decisions in support of his contention that the second appeal is maintainable

against a finding. Jagadish Chandra Bose Vs. Baijnath Shaw, and Devaki Amma and Others Vs. K.P. Sreedharan, .

The finding challenged by the sixth defendant-appellant is that the sale deeds Exs.B2 to B4 filed in O.S. No.569 of 1978 on the file of the District

Munsif Court, Kuzhithurai are void. The learned Subordinate Judge Kuzhithurai in A.S. No.172 of 1982 remanded the matter for affording on

opportunity to the plaintiff in the suit to implead the children of the second defendant. The contention of the learned counsel is that the remand is for

a particular purpose viz. for impleading the children of the second defendant but the finding against the appellant regarding the sale deeds will be

there and the trial court cannot go behind the finding. According to the learned counsel, strictly there is no decree against him, but the finding will

definitely operate as res judicata.

In AIR 1935 5 (Privy Council) which case went from West Africa, the Privy Council held it is to be remembered that all appeals in this country

and elsewhere exist merely by statute and unless the statutory conditions are fulfilled, no jurisdiction is given to any court of justice to entertain

them. It is quite true that their Lordships, like any other court, are bound by the statute law and if the statute law says there shall be no jurisdiction

in a certain event and that event has occurred then it is impossible for their Lordships or for any other court to have jurisdiction.

In Rangoon Botatoung Co. Ltd., v. The Collector, Rangoon, ILR 40 Cal. 21 which went to the Privy Council from lower Burma it was held,

following Sandback Charity Trustees v. North Staffodshired Railway Co., 1877 LR 3 QBD.I that ""an appeal does not exist in the nature of things.

A right of appeal from any decision of any tribunal must be given by express enactment"", and that appeal was a creature of statute.

In Gulabchand Ramchand Jain Vs. Noorbeg Umarbeg Mirza, , it has been held that an appeal or cross objection lies against a decree and not

against a findings.

In Deva Ram and Another Vs. Ishwar Chand and Another, the Supreme Court held as follows:

It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction from the

decision 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 u/s 96 nor would it lie u/s 100 of the Civil

Procedure Code. Similarly, an appeal lies against an ''order'' u/s 104 read with Order 43, Rule 1 of the CPC 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.

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 issues has no right of appeal and he cannot

question those findings before the appellate court. See Smt. Ganga Bai Vs. Vijay Kumar and Others, "".

In Midnapur Zamindari Co. Ltd., v. Naresh Narayan Roy, AIR 1922 PC 241 : 48 IA 49 it was observed as under:

Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had

no occasion to go further as to the finding against them; but it is the finding of a court which was dealing with facts nearer to their ken than the facts

are to the Board now, and it certainly creates a paramount duty on the appellants to displace the findings, a duty which they have how been able to

perform"".

Similar view was also expressed in an earlier decision in Run Bahadur Singh v. Lucho Koer, ILR 1885 Cal. 301 : 12 IA 23 (PC).

The oudh Chief Court in Pateshwari Din v. Mahant Sarju Doss, AIR 1938 Oudh 18 : 1937 OWN 1127 held that where a decree in previous

suit is wholly in favour of a person and gives him all the reliefs sought for by him, he has no right of appeal against the decree so as to enable him to

contest any adverse finding against him in such suit. Hence, such adverse finding cannot operate as res judicata as against him in a subsequent suit"".

The High Court of Andhra Pradesh in Bansi Lal Ratwa v. Laxminarayan, 1969 (2) An WR 246 and the Full Bench of the High Court of

Patna in Arjun Singh and Others Vs. Tara Das Ghosh and Others, have taken the view that an appeal would not lie against mere adverse finding

unless such rinding would constitute res judicata in subsequent proceedings. We are, however, not concerned with this aspect of the matter in the

present case nor are we concerned with the earlier aspect as the plea of res judicata having not been raised in the written statement, the appellant

cannot be permitted to raise the plea here"".

In Midnapur Zamindary Co. Ltd., v. Kumar Naresh Narayan Roy 1924 PC 144 : 80 I.C 827 : 51 Cal. 631 : 51 I.A. 293both the courts gave a

finding against the party who lost the case before them and it was held by the Privy Council that the party ought to have challenged the finding in

the appeal before the Privy Council which she did not do. The Privy Council held that it would operate as res judicata.

In AIR 1930 124 (Oudh) the finding was against the party who was successful. He had no right of appeal. It was held that it would not operate

as res judicata. Following the latter decision, in Pateshwari Din v. Mahant Sarju Doss, AIR 1938 Oudh 18 it was held that where a decree in a

previous suit is wholly in favour of a person and gives him all the reliefs sought for by him, he has no right of appeal against the decree so as to

enable him to contest any adverse finding against him in such suit. Such decision cannot operate as res judicata as against him in a subsequent suit"".

In Arjun Singh and Others Vs. Tara Das Ghosh and Others, , a Full Bench of the Patna High Court held as follows:

It is well settled that a party against whom a finding is recorded has got a right of appeal eventhough the ultimate decision may be in his favour if

the finding can operate as res judicata in a subsequent suit or proceedings, if however it cannot operate as res judicata then such a party has no

right of appeal"".

In Midnapur Zamindari Co. Ltd., v. Naresh Narayan RoyAIR 1922 PC 241 the matter arose in the following manner:

In 1877, the zamindari sued the tenant for khas possession. The tenant pleaded (1) occupancy right and (2) that the suit was premature. The trial

court held that there was no occupancy right but the suit was premature. It was dismissed. The High Court affirmed the decision. The zamindari

brought the subsequent suit for khas possession of the land after giving the necessary notice to terminate the tenancy. The tenant again claimed

occupancy rights. It was held upon the construction of the lease that there was no right of occupancy. The Privy Council held that the question of

occupancy right was not res judicata for the tenant having succeeded on the other plea had no occasion to go further, as to the finding against him,

but that it was appellants-landlords paramount duty to displace that finding"".

In Midnapur Zamindari Co. Ltd., v. Naresh Narayan Roy, AIR 1924 P.C. 144 already referred to it was held as follows: ''

Where the plaintiff had excluded certain questions by the statement of his pleader and the first court had therefore expressly stated that it could not

decided it, but the defendant expressly urged in the appeal that the Judge was wrong in not deciding the question eventhough his action was based

on the plaintiff''s adviser''s statement and he asked the lower appellate Court expressly to decide it and the court did decide it, it was held that the

question was necessary for the decision of the suit and therefore, the decision thereon operated as res judicata. It was immaterial that the court did

not refer to that question in its judgment"".

In Jagadish Chandra Bose Vs. Baijnath Shaw, , a Division Bench of the Calcutta High Court expressed itself as follows:

If the remand order conclusively decided the rights of parties, it had the effect of a decree within the meaning of Cl. (2) of Section 2 of the Code

of Civil Procedure. The order of remand was therefore appealable as a decree. If no appeal is preferred, it would operate as res judicata. If the

appellate court purports to act under Order 41, Rule 23 CPC the order of remand is appealable"".

In Kaluvaroya Pillai and Others Vs. Ganesa Pandithan and Others, , Civil Miscellaneous Appeals were filed against orders of remand. The

question that arose for consideration was whether in an appeal against an order of remand, the appellant could canvass all the findings of fact

arrived at by the appellate court or whether the finding of fact relating to and circumscribing the order of remand only could be agitated therein. If

the appellate court while reversing a judgment of the trial court on some issue which in the interests of justice, necessitates a remand, it is only such

facts, conclusions and decisions which have a bearing on the order of remand that could be canvassed in an appeal against such an order. The

learned Judge, Ramprasada Rao, J. as he then was referred to certain earlier decisions of various High Courts in the course of his judgment. It

would be worth while in the present context to have a look at the judgments referred to by the learned Judge.

(1) Badam v. Imrat, ILR 1881 All. 675. The matter arose under the old Code. The trial court disposed of the case on a preliminary point on

limitation. The first appellate court, reversed the finding and remanded the suit for fresh trial. The High Court, on appeal, by a majority, held that,

that object would be defeated if the appellant were restricted in pleading that the remand had been made contrary to the provisions of Section 562

of the Civil Procedure Code, and forbidden to urge the more vital and radical objection to the correctness of the adjudication on the preliminary

point"".

(2) The above decision was followed in Bhau Bala v. Bapaji Bapuji, ILR 1890 14 Bom. 14 (FB) which held that in an appeal against the order or

remand, ""the correctness of the remand order, in all legal respects, was before the High Court for adjudication."" The learned Judge Ramaprasada

Rao, J. (as he then was), however opined that the words ''in all legal respects'' appearing in the judgment were never meant to be literally

understood so as to comprehend an adjudication on merits unconnected with the order of remand"".

(3) Our High Court in Sankaran v. Roman Kutti, ILR 1897 Mad. 152 approved the decision in Badam v. Imrat, ILR 1881 All. 675.

(4) In Seshammal and Others Vs. Kuppanaiyyangar and Another, , a Division Bench of our High Court held that ""although the appeal has taken

the form of a civil miscellaneous appeal against an order of remand the Subordinate Judge is a final Judge of fact and the only grounds available to

the appellant to attack the judgment are those which would be available to him in second appeal"". The learned Judge Ramaprasada Rao, J. (as he

then was) observed, ""though the question in the present batch of appeals did not arise as such, there is sufficient indication here that the finding on

facts relevant for the decision of the first appellate Court to remand the suit, can be canvassed in an appeal against such an order"".

(5) In Jainul Abideen Marakayar and Others Vs. Habibulla Sahib, , a Division Bench of our High Court observed as follows:

To accede to the appellant''s contention would be practically to convert the appeal from the order of remand into an appeal from the decree itself,

because if the appellants are to be allowed to raise points decided against them by the lower appellate court in order to sustain the decree of the

Court of first instance, the respondents also must equally be permitted to contest the findings of the appellate Court against them, in order to sustain

the decree of the lower appellate court. In our opinion, such a procedure is altogether unwarranted"".

(6). This decision was approved in Secretary of State v. Jagannadham AIR 1914 Mad. 530 by a Full Bench of our High Court.

(7) ln Kota Kanakayya and Another Vs. Kamepalli Lakshmayya and Others, , it was held as follows:

An order of remand has an independent existence and is not submerged or dissolved in the final decree. A separate right of appeal is provided

against such an order. Not only is a right of appeal provided by Order 43, Rule 1 clause (u) but an obligation is cast by Section 105(2), Civil

Procedure Code, upon a person dissatisfied with an order of remand to appeal against it on pain of losing his right to object to the propriety or the

correctness of the order or the findings on which it is based in the later stages of the litigation"".

(8) This decision was approved in S. Venkatarama Ayyar Vs. Unnamalai Ammal and Another, . The learned Judge Ramaprasada Rao, J. (as he

then was) ultimately held as follows:

It is now well settled that a litigant in order to avoid the prescribed statutory bar in Section 105(2) CPC can and indeed ought to file an appeal

against an order of remand, but the only limitation in the conspectus of the ratio of the decisions cited is that in such an appeal under order XLIII,

Rule 1 (u) CPC he can agitate not only the legality or propriety of the order of remand, but also the findings of fact attendant upon the remit order"".

The learned Judge did not accept the contention of the counsel for the appellant that in such a civil miscellaneous appeal, the fmdings of fact other

than those relating to the order of remand could be pressed into service.

In Krishnaswamy Reddiar Vs. Muthu Reddiar, , a Division Bench of our High Court observed that in a case where there was no appeal filed

against the order of remand and the finding became final, the party aggrieved was precluded from disputing its correctness later on.

In Nain Singh Vs. Koonwarjee and Others, , in a case where the remand order was not appealed against, the Supreme Court held that the

correctness was no more open to question in view of Section 105(2). The Supreme Court also held that the powers u/s 151 CPC could not also

be exercised.

In Smt. Ganga Bai Vs. Vijay Kumar and Others, , the matter arose as follows:-

The first defendant executed a mortgage in 1953 on behalf of himself and his minor son the second defendant. The third defendant was another

son of the first defendant born after execution of the mortgage deed. In 1956 a registered deed of partition allotting the mortgaged property to the

share of the second and third defendants was entered into. There was a suit by the mortgage. A preliminary decree was passed for sale of the first

defendant''s interest in the mortgaged property. The trial court also found that the partition deed was a sham and colourable transaction. There was

an appeal filed by the plaintiff in that suit against decree directing sale of the first defendant''s share alone. Defendants 2 and 3 filed an appeal

against the finding that the partition deed was sham and nominal. During the pendency of the appeals, the preliminary decree made final and the first

defendant''s half share purchased by the plaintiff and he also obtained joint possession in November 1960. His appeal was also dismissed for non-

prosecution. In the appeal by the second and third defendants, an amendment was moved to challenge the preliminary decree. The amendment

was allowed as well as the appeal. The High Court set aside the preliminary decree as well as the final decree and held that the deed of partition

was genuine. There was an appeal to the Supreme Court and the Supreme Court held as follows:

The appeal by the defendants 2 and 3 was not maintainable. The amendment ought not to have been allowed. The Supreme Court observed as

follows:

There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of a civil nature

and unless the suit is barred by statute one may, at one''s peril, bring a suit of one''s choice. It is no answer to a suit, howsoever frivolous the claim,

that the law confers no such right to sue. 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 clear authority of law. That explains why the right of appeal is described as a creature of statute. 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 by the

defendants 2 and 3 was not maintainable. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that

the partition was sham cannot operate as res judicata"".

The Supreme Court referred to Harachandra Das v. Bholanath Das ILR 1935 (62) Cal. 701 : 39 CWN 567 in which the facts were as follows:

Suit for pre-emption was dismissed by the trial court on the ground of limitation. In an appeal filed by the plaintiff, the District Court reversed that

finding but confirmed the decree dismissing the suit on the ground that the sale effected by defendants 4 and 5 in favour of defendants 1 to 3 was

not validly registered and there being no sale, there can be no right of preemption. Defendants 1 to 3 preferred an appeal. There was a preliminary

objection taken by the plaintiffs that no appeal lie against a mere finding, was upheld by the High Court. But the High Court observed ""It may be

taken to be the view of courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree

is based, may appeal and the test applied in some of the cases for the purpose of determining whether a party has been aggrieved or not was

whether the finding would be res judicata in other proceedings"".

The Calcutta High Court''s view was commented upon by the Supreme Court as follows:

Therefore, the appeal filed by defendants 2 and 3 against that finding was not maintainable, even on the assumption that the High Court of

Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet on grounds of justice an appeal may lie

against a finding provided that it would operate as resjudicata so as to preclude a party aggrieved by the finding from agitation the question

covered by the finding in any other proceeding"".

It is not necessary here to determine whether the view of the Calcutta High Court is correct. I have already referred to the decision of the

Supreme Court in Deva Ram and Another Vs. Ishwar Chand and Another, . The Supreme Court held in that case as follows:

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"".

The Supreme Court referred to the first Midnapur Zamindari Co, Ltd., v. Naresh Narayan Roy, AIR 1922 PC 241 Run Bahadur Singh v. Lucho

KoerILR 1885 Cal. 301 : 12 IA 23 (PC)Pateshwari Din v. Mahant Sarju Doss 1938 Oudh, 18 Bansi Lal Ratwa v. Laxminarayan, 1969 (2)

An.WR 246 and Arjun Singh and Others Vs. Tara Das Ghosh and Others, , and held that appeal would not lie against a mere adverse finding.

In G. Anandhan v. Palani Padayachi, 1996 (2) LW 761 a suit for declaration was decreed by the trial court. The defendant preferred an

appeal. The lower appellate co0urt allowed the appeal and remanded the case to the trial court. An appeal was preferred by the defendant against

the order of remand. The learned Judge held that the plaintiff in the suit ought to have filed ah appeal against the finding rendered by the lower

appellate court. The learned Judge therefore held that the order of remand was not legal. The learned Judge allowed the Civil Miscellaneous

Appeal and dismissed the suit. The learned Judge distinguished the decision of the Supreme Court in Deva Ram and Another Vs. Ishwar Chand

and Another, holding that the order of the lower appellate court remanding the case was an order as defined in Section 2(14) of the Code of Civil

Procedure. It is not clear from the judgment of the learned Judge as to how a person whose suit is remanded and who is not aggrieved by an order

of remand could file an appeal challenging any finding by the appellate court.

In Devaki Amma and Others Vs. K.P. Sreedharan, referred to the earlier decision of the same High Court in Cherian Vs. Kochuvareed and

Another, which observed as follows:

If a High Court remands a case to the lower court, the matters finally disposed of by the order of remand cannot, any of them, be re-opened

when the case comes back from the lower court but, if at the time of remand, no final decision is given on a point, though some observations only

are made in respect of it, it is open to another Bench, a court of coordinate jurisdiction, when finally determining the case, to come to its own

conclusions on it, and that even in a case decided by the first court of appeal other than a case, decided by the High Court, if a Judge on appeal

decides certain points and remands the case, his decision is binding on his successor, before whom the case comes up again from the judgment

after remand because such a court is a court of coordinate jurisdiction, and, therefore, he cannot go behind the earlier final decision of his

predecessor before remand.

In paragraph 11, it is stated as follows:

The test, therefore, in such a case, to ascertain if a particular finding given by the Judge on appeal is a final decision, or not is to find out, if, by the

order of remand, the Judge on appeal has remanded the suit for determination of all the points at issue, or, it has determined some points in

controversy, and remanded the suit for determination of the remaining points, which may include the question of maintainability of the plaintiffs'' suit

itself, in which case the decree of the first court has to be set aside, and, the suit remitted to the court below for a fresh decision of the case

according to law. If therefore a final decision is rendered on any point in the order of remand which could have been appealed against, that

decision is binding on the parties and is not open to challenge before the same court or even before a superior court in a subsequent appeal. If

however no final decision is given but only some observations made on any point, Section 105(2) does not bar consideration of that point in the

subsequent stages of the proceeding. The test therefore is whether there is a final decision on any particular point"".

From the above survey, the following broad legal principles emerge: (a) An appeal is a creature of statute. Unless statutory conditions are fulfilled,

a court of justice has no jurisdiction to entertain an appeal. (b) If the statute prohibits, the court has no jurisdiction to entertain an appeal. (c) A

successful party has no right of appeal against a finding against him. Such a decision will not operate as res judicata in a subsequent suit. (d) A

question decided and a finding recorded against a losing party will operate as res judicata against him if not challenged by him. (e) A remand order

conclusively deciding the rights of parties is a decree within the meaning of Clause (2) of Section 2 of the CPC and hence appealable. If not

appealed against it will operate as res judicata. If the appellate court purports to act under Order 41, Rule 23, CPC an order of remand is

appealable. (f) The grounds available to an appellant in such appeals against findings are those which would be available to him in a second appeal.

(g) In appeals against orders of remand, the findings of fact other than those relating to the order of remand, cannot be pressed into service. (h) If

findings on orders of remand are not appealed against, they will become final and the party aggrieved will be precluded from disputing their

correctness.

As already stated, the ultimate test is whether there is a final decision on any particular point against a party and if there is one and if he is a losing

party, the finding against him has to be treated as a decree and an appeal lies.

In the instant case, the documents Exs.B2 to B4 under which the appellant (D6) claimed title to suit item 3 have been held to be void. The learned

Subordinate Judge remanded the matter to the trial court for affording an opportunity to implead the children of the fourth respondent Meenakshi

Amma. However so far as the finding against the appellant that the sales in his favour are void is concerned, unless the appellant questioned it, it

will bind him in further proceedings and in any subsequent suit by him or against him. In these circumstances, I am clearly of the view that the

second appeal is maintainable.

The next question is whether the finding given by the lower appellate court regarding Exs.B2 and B3 is to be sustained. The appellant is interested

in item 3. The courts below have held that Ex.Bl which covers an extent of 14 cents is binding on the plaintiffs. So far as Exs.B2 and B3 are

concerned, the courts below have held that they are not binding on the plaintiffs and that they are entitled to a share. The parent document relating

to Exs.B2 and B3 is Ex.B5. Under Ex.B5, Baghavathi Pillai got the property not in her capacity as kamavathy of the tarwad. In such

circumstances, it should be deemed that the property covered by Exs.B2 and B3 are not properties allotted to Bagavathipillai in her capacity as

kamavathy under Ex.A2 but her self-acquisitions. The decision of the lower appellate court that Exs.B2 to B4 are void transactions is not correct

and has to be set aside. Accordingly, the finding recorded by the lower appellate court that Exs.B2 to B4 are void transactions is hereby vacated.

The order of remand will stand in other respects. The second appeal is allowed. The substantial question of law raised for consideration is held in

favour of the appellant. However there will be no order as to costs.