T.S. Thakur, J.@mdashThis Regular First Appeal has been filed by the appellant against a mere finding recorded by the trial court on Issue No. 3 in a suit for possession and recovery of compensation for use and occupation of the suit premises. Learned Counsel for the appellant argued that even when the suit filed against the appellant had been dismissed by the trial court and the decree was in his favor, the defendant appellant was entitled to maintain the present appeal and question the correctness of the adverse finding on Issue No. 3 recorded by the trial court. That is not, in our opinion, the correct legal position. Before we state the reasons for our saying so we may briefly recount the factual matrix in which the question arises for our consideration.
2. The trial court had on the pleadings of the parties framed the following three issues for determination:
1. Whether the plaintiff is entitled to recover the possession of the first floor of property No. B-2/6, Paschim Vihar, New Delhi from the defendant? OPP
2. Whether the plaintiff is entitled to recover damages for use and occupation of the said premises from the defendant? If so, at what rate and for what period? OPP
3. Whether the defendant is the co-owner in respect of the suit property being the Joint Hindu Family? OPD
4. Relief
In so far as Issues No. 1 and 2 are concerned, the trial court came to the conclusion that the alleged license in favor of the defendant appellant herein was granted by his mother Smt. Savitri Devi who had not revoked the same at any time till the date of the sale deed executed by her in favor of Shri Shiv Kumar in October 1998. Shri Shiv Kumar had then transferred the property in terms of a general power of attorney and agreement to sell, affidavit, receipt and a will in favor of the plaintiff and eventually, a sale deed executed on 12th July, 2002. The suit filed against the defendant was, however, based on a notice of termination issued before the plaintiff had acquired the ownership of the suit property. The trial court was of the opinion that the suit based on any such notice was not maintainable as the plaintiff had no right, title or interest in the suit property on the date of the issue of the notice of termination. Issue No. 3 was answered by the Court against the defendant holding that the defendant had not produced or proved any document to show his co-ownership over the suit property.
3. It is in the above backdrop that the question regarding the maintainability of this appeal was argued before us at some length by counsel for the parties. The answer to that question is not far to seek in the light of an authoritative pronouncement of the Supreme Court on the subject in
4. The above position is made amply clear by the observations made by the Supreme Court in the following passages appearing in Gangabai''s Case (supra).
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 a mere finding recorded by the trial court that the partition was not genuine. The main controversy before us centres 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 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 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." 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 reasons 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.
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.
We may also at this stage refer to the decision of the High Court of Punjab in Ali Ahmad v. Amarnath AIR (38) 1951 Punjab 444, where the Court has observed:
Clearly, where a decree is absolutely in favor of a party but some issues are found against him, he has no right of appeal against the findings because he is, firstly, not adversely affected thereby and secondly because such findings are not embodied in and do not form part of the decree. Section 100 of the CPC provides for an appeal from a decree passed in appeal on conditions stated therein. That being so, a person who has obtained a decree in his favor cannot prefer an appeal on the ground that he is dissatisfied with an finding in the judgment.
5. Reference may also be made to
The widow has not appealed against the decree nor could she cause it is in her favor, but she has appealed against the finding that the brothers were joint in estate. It may be supposed that her advisers were apprehensive lest the finding should be hereafter held conclusive against her, but this could not be so, inasmuch as the decree was not based upon it, but was made in spite of it.
6. We have, in the light of the above, no hesitation in holding that the present appeal which is directed against a mere finding and not against the decree passed by the trial court is not maintainable. Since the decree dismissing the suit is in favor of the defendant appellant, it cannot be said to be aggrieved of the same nor was it open to the appellant to file an appeal against the same.
7. On behalf of the appellant, it was feebly argued by Mr. P.D. Gupta that the finding recorded by the trial court may operate as res judicata against the defendant appellant. We do not think so. A finding against which the affected party had no right of appeal cannot attain finality. The issue on which the finding is recorded cannot be said to have been finally adjudicated upon so as to operate as res judicata in any future litigation. The apprehension of the appellant that the finding would bind him, Therefore, appears to us to be misplaced. In any case, the maintainability of the appeal does not depend upon whether or not the finding would operate as res judicata. As observed by their lordships in Gangabai''s Case (supra), the right of appeal does not inhere in a litigant unlike the right to maintain a suit. Right to file an appeal is always conferred by the statute whether conditionally or otherwise. Section 96(1) does so conditionally. It makes only the decrees passed by the trial courts appealable and not the findings recorded in the judgments delivered by the courts. While examining whether the adverse findings would operate as res judicata against the affected party, the correct perspective in our opinion is to see whether an appeal against any such finding was maintainable and if it was not as is the position in the instant case, the finding cannot operate as res judicata. The existence of a right of appeal cannot be assumed only because unless we do so, the finding may operate as a res judicata.
8. In the result, this appeal fails and is hereby dismissed but in the circumstances without any orders as to costs.
