GENDALAL Vs. RAGHUNATH

JUDGEMENT

(1.) THIS second appeal under Section 100 of the Code of Civil Procedure, Tiled by the defendants was admitted on 16-1-97 for consideration of the following substantial question of law: (I) Whether after dismissal of the suit filed by the plaintiff, an appeal by one defendant against another defendant is maintainable?

(2.) THE suit in question was filed by the plaintiff Balram against the defendants so also against the respondent No. 2 Kamod Singh inter alia claiming his right to. the suit property on the basis of adverse possession. Various issues were framed and finally it was held by the Trial Court that the claim made by the plaintiff is not established, accordingly suit was dismissed. In the suit defendants Raghunath and respondent No. 2 Kamod Singh took a plea that they are in possession and they claimed their right by virtue of the sale deed dated 11-5-1972 executed in their favour. Even though the suit was dismissed a observation was made that defendant Raghunath and respondent No. 2 Kamod Singh has failed to prove the sale deed executed in their favour and therefore, their contention in the written statement was negatived.

(3.) EVEN though the suit was dismissed and no relief was granted to the plaintiff, but as the sale deed dated 11-5-1972 by which defendants Raghunath (now dead) and Kamod Singh had purchased the property was held to be not established they filed a first appeal under Section 96 of CPC, before the learned Additional District Judge and by the judgment and order impugned the findings recorded with regard to the sale deed being not proved has been set aside and it has been held by First Appellate Court that when no relief was claimed for setting aside the sale deed it was not necessary for the Trial Court to frame issue on this issue and record the finding. Challenging the interference made in this regard by the First Appellate Court, this second appeal is filed on the ground that the co-defendant Raghunath and Kamod Singh were not entitled to file appeal under Section 96 of CPC.