1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. SECOND APPEAL NO.392 OF 2008. Prabhakar @ Prabhu Govinda Gawate ..vs.. Smt.Nalini wd/o Yadaorao Choudhari and others. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Coram: C.L.PANGARKAR,J. Dated : 8th December, 2008. 1. Heard Shri Rohit Joshi, Advocate for the appellant. 2. This is second appeal by original defendant. One Yadaorao had instituted a suit for declaration and permanent injunction. It was the contention of Yadavrao that he had obtained loan from father of defendant no.2 Sanjay and towards security he had executed a sale-deed on 5/6/1989. 2 After this sale-deed dated 5/6/1989, it is alleged that Sanjay – defendant no.2 sold the suit property to defendant no.1 – Prabhakar. It was alleged that the property was ancestral and the sale-deed was, in fact, never intended to be acted upon. It is also alleged in the plaint that the loan was repaid by Yadavrao and defendants were trying to disturb the possession of the plaintiff. 3. Defendants no.1 and 2 had filed written statement and had contended that the transaction in question was not a loan transaction but it was in fact an out and out sale. It was contended that defendant no.2 had sold the property to defendant no.1 for consideration of Rs.4,00,000/-. The property was in possession of the defendant and therefore, question of disturbing the possession does not arise. 4. The learned judge of the trial court framed issues and held that the sale-deed executed in favour of defendant no.2 was towards security for loan and the plaintiff was entitled to declaration 3 and defendant no.2 had no power to transfer the property to defendant no.1. The learned judge, therefore, decreed the suit and restrained the defendants from interfering the possession of the plaintiffs, but dismissed the counter claim filed by the defendant. Being aggrieved by this, the present appellant Prabhakar i.e. defendant no.1 preferred an appeal before the District judge. 5. The appeal was heard by the Additional District Judge, who as a fact found that the transaction in suit was a nominal one and the sale- deed was executed by way of security for repayment of the loan. It was found that the plaintiff was entitled to relief claimed and the defendant-Sanjay had not acquired any title to the property. He, therefore, allowed the appeal and found that the suit was barred by limitation. 6. Defendant no.1 still feels aggrieved by dismissal of the suit and allowing of the appeal. It appears from the findings recorded by the appellate court that the question of allowing the 4 counter claim does not arise as there was no prayer to that effect. Holding so, he allowed the appeal and dismissed the suit. 7. Defendant no.1 feels aggrieved by the findings recorded on point no.1 and 2 and also feels aggrieved by the fact that the counter claim was not decreed. 8. First of all, I find that the appeal is not maintainable on account of the fact that no appeal could be preferred against the finding. The trial court has allowed the appeal in favour of the present appellant and has dismissed the suit. The appeal lies only against the decree and since the decree is in favour of the appellant himself, he cannot prefer appeal against mere finding. One has to bear in mind that even after the defendant's counter claim was dismissed and he had preferred an appeal against the judgment and decree, this ground was not raised in the memo of appeal before the District Judge and therefore, that ground cannot be raised in the first appeal. I find that no 5 substantial question of law is involved in the appeal. The appeal is, therefore, dismissed. JUDGE. chute