(GUTTA) PUNNAYYA Vs. (KAZA) PARANDAMAYYA

JUDGEMENT

(1.) In this case the plaintiffs brought a suit basing their claim on title. Both the lower Courts found against the plaintiffs on the question of title and the lower appellate Court granted them a decree on the ground that they had acquired an easement right over the lane in question. The learned Judge whose order is appealed against found that no specific issue had been raised on the point and that the judgment of the District Judge was not satisfactory and he framed an issue as to easement and ordered the case to be sent down to the lower appellate Court for a. finding on the issue. The 2nd defendant has preferred this Letters Patent Appeal. A preliminary objection is taken to the maintainability of the appeal on the ground that the order appealed against is not a judgment within the meaning of Clause 15 of the Letters Patent. The question for decision is: Is the order of the learned judge a judgment within the meaning of the clause.

(2.) Mr. T. V. Venkatarama Aiyar for the appellant contends that the learned Judge in framing the issue has decided that the plaintiff should be allowed to set up a case of easement not set up in the plaint and that decision is a judgment within the meaning of Clause 15. I will assume for purposes of argument that the case of easement was not set up by the plaintiff in the plaint and that a new case was set up in the appeal to the lower appellate Court. What has the Judge decided? The question of title being one of fact he accepted the finding of the lower appellate Court and proceeded to consider the case of easement and finding the judgment of the District Judge to be unsatisfactory he raised an issue as to easement for a satisfactory disposal of the case and directed the lower appellate Court to record a finding after taking such evidence as the parties may adduce. If the appeal were against that portion of the order which accepts the finding of the Judge it may be contended with some show of reason that that point has been decided by the learned Judge and that decision is final so far as he is concerned. But the appeal is really against the order of the learned Judge framing an issue and calling for a finding on it. The argument, therefore, that there has been an adjudication upon the rights of the parties and that adjudication is final can only apply to that portion of the order which accepts the finding of fact by the lower appellate Court.

(3.) The real question, therefore, is, whether an appeal lies against an order calling for a finding from the lower appellate Court on an issue framed by the learned Judge. What is strongly pressed upon our attention is that by calling for a finding the learned Judge has decided that the plaintiff should be allowed to set up a case not set up in the plaint. The question whether that is a new case or a case which arises on the pleadings is not material to consider. When a Court frames an issue which it thinks necessary for the proper disposal of the suit and calls for a finding from the lower Court can it be said to adjudicate upon any right or title of the parties? I think an order calling for a finding on an issue new or old, whether raised in the pleadings or not is not a judgment for no right or title can be said to be adjudicated upon by the mere framing of an issue and by directing that issue to be tried.