AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. A.K.Rath, J Â
1.The plaintiff is the appellant against a reversing judgment.
Since the appeal is to be disposed of on a short point, the facts need not be recounted in detail. Suffice it to say that the plaintiff-appellant instituted
the suit for partition. Defendants entered contest and filed a written statement pleading, inter alia, that there was previous partition. On analysis of the
evidence on record, learned trial court came to hold that the defendants have failed to prove that there was earlier partition between the parties. The
suit properties have not been partitioned between the parties. Held so, it decreed the suit. Since some of the findings against the plaintiff, he filed Title
Appeal No.72/225 of 1986/1987 before the learned Addl.District Judge, Bhadrak. The defendants filed cross-objection. Learned appellate court
allowed the appeal. Hence this appeal.
The appeal was admitted on the following substantial question of law;
“1. Whether appellate court acted within jurisdiction in reversing decision of the trial court without specifically dealing with the findings rendered by
the trial court?
Heard Mr. Buddhiram Das on behalf of Mr. N.C. Pati, learned counsel for the appellant. None appears for the respondents.
Though Mr. Das, learned counsel for the appellant submits that there was no partition by metes and bounds, but then this Court did not delve deep
into the matter. The question arises for consideration as to whether the plaintiff can file appeal against the finding of the learned trial court.
The subject-matter of dispute is no more res integra. In Smt. Ganga Bai v. Vijay Kumar and others, AIR 1974 SC 1126, the apex Court held that 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 Sec.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. It further held that no appeal can lie against a mere finding for the simple reason
that the Code does not provide for any such appeal. The substantial question of law is answered accordingly.
Keeping in view the authoritative pronouncement of the decisions cited supra, the inescapable conclusion is that the appeal filed by the plaintiff is
thoroughly misconceived. The cross-objection filed by the defendants in the appeal is equally misconceived. Resultantly, the impugned judgment is set
aside. Consequently, the suit is decreed.