SANJAY CHAHAL Vs. NARENDRA SINGH

JUDGEMENT

(1.) This 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 favour, 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:-

(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 Smt. Ganga Bai v. Vijay Kumar and Others, AIR 1974 SC 1126. The Court has, in that case, clearly ruled that an appeal under the Code of Civil Procedure lies only against a decree or an order specifically made appealable under Order XLIII Rule 1 thereof. Since Order XLIII Rule 1 of the CPC has no application to the appeal at hand nor was the same invoked by the appellant, the only question is whether the present appeal is maintainable under Section 96 of the CPC. A careful reading of Section 96, however, makes it manifest that an appeal is envisaged under the said provision only against a decree and not a mere finding recorded by the trial court. That is true even in regard to Section 100 of CPC which envisages an appeal from an appellate decree passed by a court subordinate to the High Court. Section 104(1) of the CPC goes further to say that "appeals against orders shall be maintainable only against orders of the kind mentioned therein and save as otherwise expressly provided by the Code or by any law for the time being in force from no other orders."