Hari Shanker vs Jag Deyee

D. K. Seth, J.—In a suit claiming right over a property by the plaintiff on the basis of the Will, the defendant had claimed that he happens to be the owner of the property. Accordingly, an issue was framed being issue No. 4 as to whether the defendant was the successor of one Baldeo and was the owner of the property. The learned trial court had found that the Will produced by the plaintiff was forged one and the plaintiff and his witness Mool Chandra were guilty of giving false evidence producing forged documents for which a cost of Rs. 2,000 was imposed on the plaintiff along with the direction for initiation of the proceedings u/s 195. read with Section 340 of the Code of Criminal Procedure ; while Mool Chandra was directed to be proceeded against u/s 420/467/468/471. I.P.C.. while a cost of Rs. 1,000 was also imposed on the defendant on account of giving false evidence.

The defendant preferred an appeal challenging the said imposition of cost as well as the finding with regard to issue Nos. 4 and 8 respectively. The learned trial court reversed the imposition of cost on the defendant on account of giving false evidence white it had also rejected the appeal with regard to the finding on issue Nos. 4 and 8. The learned counsel for the appellant contends that there having been a declaration of right of the defendant to the extent that he was not the successor of Baldeo Prasad and not the owner of the property, he can maintain the Second Appeal even though the decree with regard to imposition of cost as against the defendant was set aside.

Sections 96 and 100 of the Code provide for appeal from decree passed by a Court of original jurisdiction and no appeal, by a Court subordinate to the High Court respectively. Neither of these Sections permit appeal against judgment. However, where decree is not drawn within 15 days of the judgment and decree, Order XX, Rule 6A permits filing of appeal with a copy of the last paragraph of the judgment, which by fiction is treated as decree. Therefore. the appeal lies from the decree and not from the judgment although the word "decision" Is used in sub-section (1) of Section 96 of the Code.

The above view finds support In the case of Jaga Dhish v. Jawahar Lal Bhargava, MR 1961 SC 832. There can be no appeal against findings embodied In the judgment but not In the decree. In Niamat D. Phadu ILR Cal 319 ; Koylash v. Ram ILR Cat 206 ; Anusuyabai V. Sakharam ILR 7 Bom 464 ; the above view was expressed. The Apex Court In Smt. Ganga Bai Vs. Vijay Kumar and Others, , had held that no appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. In S.R. Jaya Rao Vs. Venkatanarayana Chetty and Another, ; Jugal Kishore Singh and Others Vs. Sheonandan Singh and Others, , it has been laid down that mere adverse finding against a party does not give a right of appeal.

However, a different view was taken in the case of Harachandra Das v. Bholanath Das ILR Cat 70 : 39 CWN 567 ; Krishna Chandra Gaidar v. Mahesh Chandra Saha 9 OWN 584 ; All Ahmad v. Amamath AIR 1951 P&H 444 ; Balachandra Chengappa Vs. Union of India and Others, ; Arjun Singh and Others Vs. Tara Das Ghosh and Others, . In those cases, it was held that though under the strict letters of the provision in the Code relating to right of appeal no appeal lies by a party in whose favour a decree has been passed, against a finding contained in the Judgment, he has a right to appeal against a finding adverse to him provided that it would operate as res judicata tn a subsequent suit or proceedings. However, whether this proposition is based on grounds of Justice, as has been taken in Arjun v. Tardas, (supra)--is correct or not--was not determined finally in Ganga Bal v. Vijay Kumar, (supra) by the Apex Court.

But the principle of res Judicata cannot be applied In respect of adverse finding not incorporated in the decree against a person in whose favour the decree is passed because he has no right or occasion to go in appeal.

In Banarsi Sah and Others Vs. Bhagwanlal Sah and Others, , it was held that where a decree is absolutely in favour of a party but some issues are found against him. he has no right of appeal against the decree and plea of res Judicata cannot be founded on adverse decision against him because he had no occasion to go in appeal.

In Midnapore Zamlndart Company Ltd, v. Naresh Ranjan Roy AIR 1922 PC 241 ; Sri Pal and Others Vs. Swami Nath and Others, ; Tarabai Mohata and Others Vs. Union of India (UOI), ; Mathurabai and Another Vs. Ramkrishna Bhaskar Barve and Others, ; Smt. Sukhni and Another Vs. Smt. Sukhbasi and Others, , it was reiterated that when a party succeeds in a suit or appeal, an adverse finding against him cannot be the basis of a plea of res Judicata, for having succeeded he had no occasion to prefer an appeal. In The Commissioners for the Port of Calcutta Vs. Bhairadinram Durga Prosad, , it was held that such a party has no right of appeal when a suit is dismissed on a finding that the plaintiff had no right to sue, an adverse finding against the defendant Is not res Judicata, as was held in Markanda mahapatra Vs. Varada Kameswar Rao Naidu and Others,

This principle will equally apply when the appeal courts'' decree results into the dismissal of the suit and there is nothing adverse to the defendant in the decree though some of the findings in the decision of Judgment may be adverse to the defendant.

It appears that an appeal is preferred against a decree. There is no right of appeal unless there is a decree against a party. The suit was dismissed and no right was declared either of the plaintiff or of the defendant. Neither in the decree it was declared that the defendant has no right. The only negative point in the decree was imposition of cost against the defendant which the appeal court had set aside. Thus, in appeal court''s decree, there was nothing adverse to the defendant. The appeal court has not modified the decree of the learned trial court with regard to the other aspects excepting reversing that part of the decree by which cost was imposed on the defendant on account of giving a false evidence. Thus, either in the decree of the appeal court or of the decree of the learned trial court, there is nothing against the defendant. So there is no scope for the defendant to be aggrieved by any part of the decree after the appeal court had reversed imposition of cost as against the defendant. Therefore, there is no right of appeal available to the defendant after the appeal court''s decree- So far the finding is concerned, that is with regard to arriving at a decision in the suit itself, which has not culminated in any declaration of title. Therefore, the finding though may be adverse, it will not operate as res judicata a s against the defendant since he has neither any right to appeal nor occasion to prefer any appeal. Thus, there cannot be any question of preferring an appeal against a finding in respect whereof plea of res judicata is not applicable.

Therefore, after hearing Mr. S. L. Singh, learned counsel for the appellant and perusing the order impugned. I do not find that this appeal raises substantial question of law for being admitted.

The appeal has no merit. It is accordingly dismissed. No cost.