1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO.869 OF 2007 APPEAL NO.869 OF 2007 APPEAL NO.869 OF 2007 Shri Shripat Ganpat Thule since deceased through heirs and legal representatives 1. Smt.Drowpadabai Shripati Thule and others : Appellants. versus Shri Shyam Jayram Mokashi & ors. : Respondents. Mr.Girish Godbole for the appellants. Mr.S.D.Dighe for Respondent No.1. Mr.A.a.Garge for Respondent No.3. CORAM CORAM CORAM : R.M.SAVANT, J. : R.M.SAVANT, J. : R.M.SAVANT, J. DATED DATED DATED : JULY 11, 2008. : JULY 11, 2008. : JULY 11, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for the respective parties. 2. The Appellants herein, who are the original defendant, are aggrieved by a finding recorded by the Lower Appellate Court in respect of Point No.1 which was framed by the Lower Appellate Court wherein a finding has been recorded that Respondent No.1 herein is the owner of the property in question. 2 3. In view of the judgment of Apex Court reported in (1974) 2 SCC 393 (1974) 2 SCC 393 (1974) 2 SCC 393 in the matter of Smt.Ganga Bai Smt.Ganga Bai Smt.Ganga Bai v/s. v/s. v/s. Vijay Kumar and others Vijay Kumar and others Vijay Kumar and others wherein it has been observed in Para 17 of the report that no appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. The proposition of law has been reiterated in another judgment of the Apex Court reported in (1995) 6 SCC (1995) 6 SCC (1995) 6 SCC 733 733 733 in the matter of Deva Ram and another v/s. Ishwar Deva Ram and another v/s. Ishwar Deva Ram and another v/s. Ishwar Chand Chand Chand and another. and another. and another. Paras 25, 26, 27 and 28 of the report are material and are reproduced herein under :- "25. Let us now consider the plea regarding the effect of an adverse finding recorded by the court against a party in whose favour the suit or the appeal is ultimately decide. "26. It is provided in Section 96 of the CPC that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeal 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 quo non in both the provisions is the ‘decree’ and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an ‘order’ under Section 104 read with Order 43 Rule 1 of the 3 Civil procedure Code 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." "27. 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 issue has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v. Vijay Kumar) "28. In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, 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 finding, a duty which they have now been able to perform. 4. The learned counsel for the Appellants relied upon a judgment of the Division Bench of this Court reported in 1993 Mh.L.J. 1123 1993 Mh.L.J. 1123 1993 Mh.L.J. 1123 in the matter of Balmukund Balmukund Balmukund Motiram Anecha v/s. Suresh Bansilal Anecha Motiram Anecha v/s. Suresh Bansilal Anecha Motiram Anecha v/s. Suresh Bansilal Anecha and and and others others others in respect of his contention that the said 4 finding would not operate as res-judicata against the Appellants herein. Para 7 of the report is material and is reproduced herein under :- "We have heard the arguments of Shri.S.D.Kularni, learned counsel for the appellant, Shri.Sunil A Kulkarni, learned Counsel appointed as amicus curiae for the Respondent No.1, Shri R.N.Dhorde, learned counsel for the respondent No.2 and Shri U.B.Binwade, learned Counsel for the respondent No.3. In the cross objections it is mentioned that the appeal has been admitted and the respondents received the notice of appeal on 13th June 1983. The appeal has been admitted by Shri.Dharmadhikari and Sarad Manohar, JJ. on 24-2-1983. Before commencement of the hearing of the first Appeal, we posed a question to Shri S.D.Kulkarni, learned counsel for the appellant about the maintainability of the first appeal. We further made query that when the decree is passed in his favour in the entirety, as to how the present first appeal is maintainable? It is submitted by Shri.S.D.Kulkarni, learned counsel for the appellant that the learned trial Judge has given findings against the appellant in respect of Issues No.4 and 13 and that is why he has preferred the present appeal. If the plaintiff’s claim is decreed in its entirety and all other issues are answered in his favour, the plaintiff cannot appeal from the decree. In case the plaintiff’s claim is decreed in its entirety and one or more of the issue is found against him, the question, is can the plaintiff appeal against such adverse finding ? This particular question is to be answered in the negative. The reason is that, the very fact that decree is entirely in plaintiff’s favour notwithstanding any finding adverse against him on one of the issues shows that such finding was in answer to the determination of the plaintiff’s suit. such finding does not operate as res judicata; and it is elementary principle that Appeal is not maintainable on any point that does not operate as res judicata. In the present first 5 appeal when the learned trial Judge has given affirmative finding on issue No.3 to the effect that the plaintiff No.2 has proved that the decree passed in Regular Civil Suit No.80 of 1974 of the Civil Judge, Junior division, Shevgaon was a decree passed without jurisdiction, and hence null and void, it has substantially covered the issue No.4. At the same time issue No.13 is whether defendant No.1 is adopted son of deceased Blamukund and is answered in the affirmative. In fact the plaintiff never contended about the so called adoption of defendant No.1 by Balmukund Anecha (deceased). Even in ruling reported in AIR 1977 Mad. 25 Corporation of Madras vs. P.R.Ramchandriah and others it is observed that:- . It is well settled that a party not aggrieved by a decree is not competent to appeal against the decree on the ground that an issue found against him" . In view of the judgement of the Division Bench it would have to be held that the said finding recorded against the Appellants herein would not operate as Res-judicata. 5. Mr.Dighe, the learned Counsel for Respondent No.1 relied upon the judgment of the Apex Court reported in (2007) 10 SCC 185 (2007) 10 SCC 185 (2007) 10 SCC 185 in the matter of Krishnananda Krishnananda Krishnananda v/s. Kattu Siva Ashram and others. v/s. Kattu Siva Ashram and others. v/s. Kattu Siva Ashram and others. In my view, the said judgment in fact supports the stand of the Appellants that the said finding does not operate as Res-judicata. As it has been observed by the Apex court in the facts of the said case that it 6 would be open for the Appellant therein to take all the contentions in respect of his title in appropriate proceedings that would be filed against him. 6. In view of the judgments reported in (1974) 2 SCC 393 and (1995) 6 SCC 733 (Supra) the Appeal is dismissed as not maintainable. [R.M.SAVANT, [R.M.SAVANT, [R.M.SAVANT, J] J] J]