1 S.A. 241/1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 241/1993 Ambadas Haridas Dhas, since deceased per L.Rs. 1a) Smt. Kashibai Ambadas Dhas, Age : 82 years, Occu. Household, R/o At Post Mala Puri, Tq. And District : Beed. 1b) Devidas Ambadas Dhas, Age : 58 years, Occu. Agriculture, R/o as above. 1c) Kantrao Ambadas Dhas, Age : 55 years, Occu. Agriculture, R/o as above. ...Appellants. Versus 1 Babugir Bhagwangir deceased per L.Rs. 1a) Ashok Babugir Bhagwangir, Age : 47 years, Occu. Labour, R/o Malapuri, Tq. And District : Beed. 1b) Udhavgir Babugir Bhagwangir, Age : 45 years, Occu. & R/o as above. 1c) Shivajigir Babugir Bhagwangir, Age : 42 years, Occu. & R/o as above. 1d) Mulidhargir Babugir Bhagwangir, Age : 40 years, Occ. & R/o as above. 2 Kashinath Bhagwangir, 3 Rangnath Keshavrao Hadule, (Original defendants No.1 and 2, 2 S.A. 241/1993 Original Plaintiff No.2 and 3). ...Respondents. Mr. S.S. Bora h/f Mr. S.C. Bora, Advocate for the appellants. Mr. J.S. Gavane, Advocate for respondents No.1A to D and 2. Respondent No.3 absent. CORAM : A.V. NIRGUDE, J. DATED : 12th October, 2011. ORAL JUDGMENT : 1. This second appeal is challenging the judgment and order dated 25/02/1993 in R.C.A. No. 388/1983. The facts leading to this litigation are very peculiar and exceptionally different. They are narrated below. 2. Respondent No.3 was the plaintiff before trial Court. The appellant was defendant No.1 and respondent No.1 and 2 were defendants No.2 and 3. The cause of action for the suit of the respondent No.3 was as under. 3. He filed suit for declaration and possession of certain agricultural land. He said that one Bhagwangir was father of respondents No.1 and 2. He said during the life time of Bhagwangir, he agreed to sell the suit property to the appellant. However, he said that Bhagwangir died soon thereafter and respondents No.1 and 2 then executed a sale deed of the suit land in his favour. He said, despite of the sale deed, he could not get possession of the land because the land was in possession of the appellant. He therefore, sought declaration that he is owner of the property and further sought possession of the suit property from the appellant. The appellant took up a defence that Bhagwangir had agreed to sell him the suit land by a registered document and after accepting part of the consideration, he had even put him in possession. He then said that he was ready and willing to perform his part of the contract, even though 3 S.A. 241/1993 Bhagwangir is dead. He said that he was entitled to retain the possession of the suit property as his possession is protected by provision of Section 53A of the Transfer of Property Act. 4. Respondents No.1 and 2 took up a different stand altogether. They asserted that they are in possession of the suit land. They further stated that though they had executed the sale deed in favour of respondent No.3, the same was void because they did not get consideration for the transaction. 5. In view of this, the learned judge of the trial Court framed various issues and held that the transaction between respondent No.3 and respondents No.1 and 2 was void for want of consideration. On the other hand, he held that the appellant could prove his possession and other ingredients of Section 53A such as the agreement in writing, payment of consideration etc. and he therefore, held that he was entitled to protection under section 53A. So, he dismissed the suit. 6. Respondent No.3 could have filed appeal against the judgment of the trial Court because he lost the entire case he pleaded. But surprisingly he did not come in appeal. He accepted the judgment and kept quiet. However, the respondents No.1 and 2 filed appeal No. 388/1983 before the first appellate court. They asserted that the finding recorded by the trial Court that they are not in possession of the suit land and that it was the appellant who was in possession of the suit land, had gone against them and because of such finding, they would file appeal against such finding. Surprisingly no one raised objection to the maintainability of such weird appeal. Surprisingly further the learned judge of the first appellate court not only entertained the appeal but on facts held that the finding recorded by 4 S.A. 241/1993 the trial Court was erroneous. He held on facts that the appellant could not have proved his case of possession. 7. Therefore, the appellant is constrained to file this second appeal. Only substantial question of law arises in this appeal is whether the appeal of respondents No.1 and 2 before first appellate court was maintainable. Learned counsel appearing for the appellant placed reliance on two judgments of Supreme Court. Gangabai Vs. Vijaykumar AIR 1974 S.C. 1126. The facts of this reported case are quite similar to the facts of the present case. In the reported case also the defendant filed appeal against the judgment and decree dismissing the suit. The Supreme Court in said situation held that such appeal was not maintainable and observed as under. 15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well-established. 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 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. 16. Under section 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. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 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". 5 S.A. 241/1993 Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". 'Order 43, Rule 1 of the Code, which by reason of clause (i) of section 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, section 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. 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, 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. 8. The Supreme Court reiterated this view in the next judgment in the case of Ramphal Vs. Banarasi (2003) 11 Supreme Court Cases 762. The law discussed by the Supreme Court on this subject thus has left no doubt about the lack of maintainability of the appeal of respondents No.1 and 2. Their appeal was not maintainable at all. If the appeal was not maintainable, the finding recorded by the learned judge of the first appellate Court deserves set aside and ignored. 9. Despite of this legal position, learned counsel appearing for the respondents No.1 and 2 placed reliance on two judgments of Supreme Court. (I) Mahant Dhangir and another Vs. Madan Mohan and others AIR 1988 S.S. 54. (II) Ravinder Kumar Sharma Vs. State of Assam & Others AIR 1999 S.C. 3571. The ratios of both these judgments are not at all related to the present case. The Supreme Court was discussing the issue of cross objection, its maintainability and necessity. Having regard to the statement of law in this judgment, it is clear that the scope of O.41 Rule 33 C.P.C. is quite wide and the Court would be empowered to 6 S.A. 241/1993 decide any issue that existed between the parties to the appeal irrespective of the fact that the party had not filed appeal or cross objection on some of the findings recorded by the trial Court. The Supreme Court however further observed that “there are however constraints of such power. One of the constraints is that “the question raised must properly arise from judgment of lower Court”. 10 Here the question respondents No.1 and 2 were trying to raise by filing the appeal did not arise from the judgment of the lower Court. I would now give reason for coming to this conclusion. When respondents No.1 and 2 learnt about the appellant’s defence and claim of possession which he raised in the written statement, they could have and ought to have filed a separate suit or counter claim against them claiming perpetual injunction. Respondents No.1 and 2 since beginning claimed that they were in exclusive possession of the suit land. In the light of such defence, if they learnt that one of the parties to the suit was claiming possession of the same land, they ought to have retorted to such claim by filing counter claim or separate suit for perpetual injunction. If they did not file such counter claim in such suit, (such counter claim was permissible in view of maintainability and was permissible in view of the provision of O.VIII Rule 13 C.P.C., as applicable to the State of Maharashtra), the finding that was recorded by the trial Court that 'it was the appellant who was in possession of the suit land', would not affect them adversely at all. It adversely affected only to respondent No.3 who was the plaintiff before the trial Court. So the question, respondents No.1 and 2 tried to raise in the appeal did not arise from the judgment of the trial Court. As said above, the ratio of these two judgments 7 S.A. 241/1993 would not help respondents No.1 and 2 for maintaining the appeal before first appellate. Second appeal succeeds. ORDER The judgment and order dated 25/02/1993 passed by Joint District Judge, Beed stands set aside. The Judgment and decree dated 31/10/1983 passed by Joint Civil Judge, Junior Division, Beed in R.C.S. No. 381/1979 is maintainable. [A.V. NIRGUDE, J.] ts k/2011/Oct.2011/sa241.93/ok