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Mukhtiar Singh & Anr. v. Nishan Singh & Ors. - RSA-2683-2004 [2006] RD-P&H 4593 (21 July 2006)

R.S.A. No.2683 of 2004 -: 1 :-



R.S.A. No.2683 of 2004

Date of decision: July 04, 2006.

Mukhtiar Singh & Anr.



Nishan Singh & Ors.


Present: Shri B.R. Mahajan, Advocate for the appellants.

Shri P.L. Singla, Advocate for respondent No.1.

Surya Kant, J.

This regular second appeal has been preferred by some of the defendants who are aggrieved of the judgment and decree dated 27.2.2004 passed by the learned first appellate court. It may be mentioned here that the impugned judgment and decree has been passed in an appeal filed by the appellant's co-defendants in the suit.

Briefly, the facts are that, the predecessor-in-interest of respondents No.3 to 10, namely, Rachhpal Singh (since deceased) filed a suit for declaration to the effect that he along with defendants No.21 and 22 was joint owner in possession of land measuring 22 kanals 6 marls, the R.S.A. No.2683 of 2004 -: 2 :-

details of which are given in the head-note of the plaint, and that defendants No.1 to 20 and 23 to 24 have no right or concern with the same and they be restrained from interfering in the peaceful possession of the plaintiff and defendants No.21 and 22.

The above stated suit was contested by defendants No.1 to 8 and 11 to 20 by filing a joint written statement in which the locus standi, possession or title of the plaintiff qua the suit land was contested.

Defendant No.22 also filed a separate written statement questioning maintainability of the suit and locus standi of the plaintiff. The said defendant also took the plea that he along with defendants No.23 and 24 had become owners of the suit land by way of adverse possession.

On the basis of the pleadings, the trial court framed following issues:-

1. Whether the plaintiff and defendants No.21 and 22 are owners of the suit property? OPP

2. Whether in the alternative possession of Lakha Singh during his life time and after his death, possession of plaintiff and defendant No.22 is continuous, open, hostile and the plaintiffs and defendant No.22 have become owners of the suit land by way of adverse possession? OPP

3. Whether defendant No.1 to 9, 11 to 20 are owners and in possession of the suit land? OPD

4. Whether defendant No.9 is already dead prior to filing of the suit, if so its effect? OPD

5. Whether the suit is bad for mis-joinder of parties and for non-joinder of necessary parties? OPD

R.S.A. No.2683 of 2004 -: 3 :-

6. Whether the plaintiffs are barred by their act and conduct from filing the present suit? OPD

7. Whether defendants No.23 and 24 are in possession of the suit property prior to the settlement and they have become owners by way of adverse possession? OPD

8. Whether the plaintiff is entitled for declaration with consequential relief of permanent injunction? OPP

9. Relief. Learned trial court decided issues No.1,2 and 8 against the plaintiff(s) whereas issues No.3,4 and 5 were decided in favour of the defendants. Issues No.5 and 7 were decided against the defendants and in favour of the plaintiffs. As a result of these findings, the suit was dismissed.

Though the suit was dismissed, however, defendants No.23 and 24, i.e., respondents No.1 and 2 felt aggrieved at the findings returned by the trial court under issues No.3, 4 and 6 and preferred an appeal. Vide the impugned judgment and decree, the learned first appellate court has accepted their appeal and after setting aside the findings of the trial court on issues No.3 and 7, respondents No.1 and 2 have been declared to have become owners of the subject land by way of adverse possession.

Aggrieved, some of the other defendants in the suit have preferred this regular second appeal.

I have heard learned counsel for the parties and have perused the record.

Without going into any factual gamut of the case, learned counsel for the appellants has confined his contention on a legal issue, namely, could an appeal be filed by the defendants merely against a finding R.S.A. No.2683 of 2004 -: 4 :-

returned against them by the trial court even though the suit was finally dismissed. Referring to section 96 CPC, it is contended by learned counsel for the appellants that an appeal lies from a "decree" only and no decree having been passed against respondents No.1 and 2 by the trial court, their appeal against some of the findings was not maintainable. He has also referred to Order 41 Rule 22 CPC to contend that the conclusions drawn by the civil court while deciding issues No.3, 4 and 6 too could be assailed by respondents No.1 and 2 only if the plaintiffs had preferred any appeal against the decree passed against them. In support of his contention, learned counsel has relied upon two judgments of the Hon'ble Supreme Court in:- (i) Smt. Ganga Bai v. Vijay Kumar & Ors., AIR 1974 SC 1126; and (ii) Banarsi & Ors. v. Ram Phal, JT 2003(5) SC 224.

In Smt. Ganga Bai's case (supra), which was decided prior to the 1976 amendment in the CPC, their Lordships of the Supreme Court held as follows:-

"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 Rule1. 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 trail Court." In Banarsi's case (supra), the Apex Court after observing that, "appeal and cross objection both are filed against decree and not against judgment and certainly not against any finding recorded in a judgment", R.S.A. No.2683 of 2004 -: 5 :-

further observed that, "CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference". It further concluded that:-

"8. Sections 96 and 100 of the 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 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 & Anr. v. Gopal Lal, Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd and Smt. Ganga Bai v. Vijay Kumar & Ors.) No appeal lies against a mere finding. It is significant to note that both sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment." (emphasis applied)

It, thus, stands crystalized that where the trial court dismisses a suit and no decree, partly or otherwise, prejudicial to the interest of the defendants is passed, no appeal can be filed by the defendants even against the findings recorded against them.

The impugned judgment and decree passed by the first appellate court at the instance of some of the defendants, thus, cannot sustain as the said appeal was also directed against certain findings only and not against a "judgment" or "decree". Consequently, the appeal is allowed, the impugned judgment and decree dated 27.2.2004 passed by the learned R.S.A. No.2683 of 2004 -: 6 :-

Additional District Judge, Amritsar is set aside. This, however, shall not preclude respondent No.1 to have any other recourse in law, if so available.

No order as to costs.

July 04, 2006. [ Surya Kant ]

kadyan Judge


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