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TMI Blog2013 (1) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... forcibly took possession of the land. It was set forth that by virtue of the will, the Plaintiff and the Defendant Nos. 5 and 6, the co-owners, have been deprived of the legal rights in the suit land. It was the case of the Plaintiff that the will was not executed voluntarily by his father, Shiv Singh, and it was a forged one and, therefore, no right could flow in favour of the said Defendants. 3. The Defendant Nos. 1 to 4 entered contest and supported the execution of the will on the basis that it was voluntary and without any pressure or coercion. That apart, it was contended that the rights of Defendant No. 5 had not been affected as a registered gift was executed on 31.3.1980 by late Shiv Singh. The claim of the Plaintiff was strongly disputed on the ground that the will had already been worked out since the revenue records had been corrected. The Defendant No. 6 resisted the stand of the Plaintiff contending, inter alia, that the property was self-acquired and the execution of the will was absolutely voluntary. The Defendant No. 5 filed an independent written statement admitting the claim of the Plaintiff. It was set forth by him that the suit land was ancestral, a Joint Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned trial Judge and dismissed the suit with costs. 6. The Defendant No. 5 preferred R.S.A. No. 85 of 2007 before the High Court. The learned single Judge, upon hearing the learned Counsel for the parties and placing reliance on Smt. Ganga Bai v. Vijay Kumar and Ors. AIR 1974 SC 1126 and Banarsi and Ors. v. Ram Phal AIR 2003 SC 1989, came to hold that the appeal was not maintainable at the instance of Defendant No. 5 Under Section 100 of the Code of Civil Procedure, 1908 (for short "the Code"). 7. We have heard Mr. Vipin Gogia, learned Counsel for the Appellant, and Mr. K.K. Mohan, learned Counsel appearing for the Respondents. 8. At the very outset, we must state that the High Court has accepted the preliminary objections raised by the Respondents as regards the maintainability of the appeal. While accepting the preliminary objection, the High Court has opined that the Plaintiff and the Defendant Nos. 1 to 4 and 6 had accepted the judgment and decree; that the Defendant No. 5 cannot be regarded as an aggrieved party to assail the impugned decree invoking the jurisdiction of the High Court Under Section 100 of the Code; that appeal being a creature of the statute, the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary decree, the question whether they were aggrieved by that decree and could file an appeal therefrom was irrelevant. The Bench held that the appeal was directed against the finding given by the trial court which was against them, hence, it was not maintainable. Be it noted, this Court also addressed with regard to the issue whether Defendant Nos. 2 and 3 were aggrieved by the preliminary decree and opined that the appeal was against a mere finding and the preliminary decree, in fact, remained unchallenged for a long period. 11. Another aspect which was addressed by the Bench was whether the finding would operate as res judicata in the subsequent proceeding. This Court observed that the finding recorded by the trial court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu Law, would bind the interest of the sons. That apart, the matter relating to the partition being not directly and substantially in issue in the suit, the finding that the partition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge-Bench opined that an appeal Under Section 96 of the Code would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. In the said case, while dealing with the concept of 'person aggrieved', the Bench observed thus: A person aggrieved to file an appeal must be one whose right is affected by reason or the judgment and decree sought to be impugned. It is not the contention of Respondent 1 that in the event the said judgment and decree is allowed to stand, the same will cause any personal injury to him or shall affect his interest otherwise. 16. Be it noted, in the said case, the challenge in appeal was to the dissolution of marriage of the Appellant therein and his first wife which, this Court held, would have no repercussion on the property in the suit and, therefore, the High Court was not justified in disposing of the civil revision with the observation that the revisionist could prefer an appeal. 17. In Sahadu Gangaram Bhagade v. Special Deputy Collector, Ahmednagar and Anr. (1970) 1 SCC 685, it was observed that the right given to a Respondent in an appeal is to challenge the order under appeal to the extent he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unamended Code. 19. At this juncture, we may usefully reproduce a passage from Banarsi and Ors. (supra) wherein it has been stated thus: Sections 96 and 100 Code of Civil Procedure make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand v. Gopal Lal AIR 1967 SC 1470, Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (supra) and Ganga Bai v. Vijay Kumar (supra).) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 Code of Civil Procedure provide for an appeal against decree and not against judgment. 20. Though the High Court has referred to the said pronouncement, yet it has not applied the ratio correctly to the facts. This Court has clearly stated that if a person is prejudicially or adversely affected by the decree, he can maintain an appeal. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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