SHRIRAM Vs. SURESH KUMAR

JUDGEMENT

(1.) Heard on admission and formulation of substantial question of law for determination in this second appeal preferred by the defendants/ appellants herein.

(2.) The original plaintiff / respondent No.1 (now represented through his legal representative) filed a suit for declaration of title and possession against the appellants herein / defendants claiming that he is the son of defendant No.1 from first wife of defendant No.1 namely Sukwaro Bai and the plaintiff has share in the subject suit property as well as the property of defendants No.2 & 3 purchased from the income of Hindu Undivided Family (HUF) property. The trial Court framed as many as twelve issues, out of which eight issues were decided against the plaintiff and eventually, the suit was dismissed by the trial Court. Aggrieved by the judgment & decree of the trial Court, the plaintiff preferred first appeal, whereas the defendants also preferred cross-objection against some of the findings which were recorded in favour of the plaintiff by the trial Court by answering the issues. The first appellate Court partly allowed the appeal filed by the plaintiff, but finally dismissed the suit of the plaintiff on technical ground deciding issue Nos.8 & 11 which relate to non-joinder of necessary party and non-payment of adequate court fees, against the plaintiff. Though the suit has been dismissed finally, but, yet, the defendants have preferred this second appeal stating inter alia that the findings on issues No.3 to 7 are adverse to them and if allowed to stand, it will operate as res judicata in subsequent proceeding (if any) against them and therefore second appeal would be maintainable under Section 100 of the CPC.

(3.) Ms. Aditi Singhvi, learned counsel appearing for the appellants herein / defendants No.1 to 4, would submit that findings on issue Nos.3 to 7 were recorded against the defendants by the first appellate Court though the plaintiff's suit as well as appeal has finally been dismissed by the first appellate Court, yet, appeal would be maintainable as, if the findings are allowed to stand qua issue Nos.3 to 7, that would operate as res judicata against them in the further / future proceeding, if any, initiated at the instance of the plaintiff, therefore, second appeal would be maintainable against the finding, though there is no effective decree against them (defendants). She would rely upon the judgment of the Andhra Pradesh High Court in the matter of Konda Lakshman Babu Ji and others v. The State of A.P. and others, 1977 AIR(AP) 427 to buttress her submission. She would further submit that the first appellate Court has answered issue Nos.3 to 7 against the defendants by recording a finding which is perverse to the record, that gives rise to substantial question of law for determination and therefore appeal be admitted for hearing