R MARIA SILUVAI Vs. B SREEKUMARI AMMA

JUDGEMENT

(1.) THE sixth defendant is the appellant in the second appeal. The appeal has been filed challenging the finding of the lower appellate court which had remanded the matter. A preliminary point regarding the maintainability of the second appeal arises for consideration.

(2.) THE learned counsel Mr.T.R. Rajaraman relies on the following decisions in support of his contention that the second appeal is maintainable against a finding. Jagadish Chandra Bose v. V. Baijnath Shaw, : AIR1966Cal580 and Devaki Amma and others v. K.P. Sreedharan, : AIR1993Ker348 . The finding challenged by the sixth defendant -appellant is that the sale deeds Exs.B2 to B4 filed in O.S. No.569 of 1978 on the file of the District Munsif Court, Kuzhithurai are void. The learned Subordinate Judge Kuzhithurai in A.S. No.172 of 1982 remanded the matter for affording on opportunity to the plaintiff in the suit to implead the children of the second defendant. The contention of the learned counsel is that the remand is for a particular purpose viz. for impleading the children of the second defendant but the finding against the appellant regarding the sale deeds will be there and the trial court cannot go behind the finding. According to the learned counsel, strictly there is no decree against him, but the finding will definitely operate as res judicata.

(3.) IN Rangoon Botatoung Co. Ltd., v. The Collector, Rangoon, ILR 40 Cal. 21 which went to the Privy Council from lower Burma it was held,following Sandback Charity Trustees v. North Staffodshired Railway Co.,1877 LR 3 QBD.I that 'an appeal does not exist in the nature of things. A rightof appeal from any decision of any tribunal must be given by expressenactment', and that appeal was a creature of statute.