The above Second Appeal arises against the judgment and decree dated 20.11.1999 made in A.S.No.58 of 1999 on the file of the Court of the Additional Subordinate Judge, Mayiladuthurai, modifying the Judgment and Decree dated 12.07.1999 made in O.S.No.50 of 1994 on the file of the Court of District Munsif, Sirkali, In fact the above second appeal has been filed only against the finding which went against the appellants.
2. In the above second appeal, the defendants in the suit are the appellants and the respondent is the plaintiff in the suit.
3. The plaintiff filed suit in O.S.No.50 of 1994 on the file of the District Munsif Court, Sirkali for permanent injunction.
4. The brief case of the Plaintiff is as follows:-
(i) The plaintiff is the daughter of 1st Defendant through his second wife Vasantha. The plaintiff instituted the suit stating that the first item of the suit property was settled by the 1st defendant in favour of her mother in Ex.A1 and she has been in possession and enjoyment of the same. Items 2 and 3 of the suit properties were purchased by her mother. Her mother bequeathed items 2 and 3 of the suit property to the plaintiff under Ex.A18, WILL dated 15.10.1977. Since the defendants tried to interfere with the possession and enjoyment of the suit properties, plaintiff filed the suit.
5. The brief case of the defendants are as follows:-
(i) According to the 1st defendant, the settlement deed executed by him is only a sham and nominal document and therefore, no right has passed on to the plaintiff. The defendants also denied that items 2 and 3 were purchased in the name of the second wife, the mother of the plaintiff. Therefore, it was only a benamy transaction. The defendants also contented that the WILL said to have been executed by vasantha, the mother of the plaintiff is not a genuine one. According to the defendants, they are in possession and enjoyment of the suit properties and prayed for dismissal of the suit.
6. Before the trial court, on the side of the plaintiffs, four witnesses were examined and 18 documents were marked as Exs.A1 to A18. On the side of the defendants, six witnesses were examined and 8 documents were marked as Exs.B1 to B8. The trial court, after taking into consideration the oral and documentary evidences of both the parties, found that Ex.A18, WILL dated 15.10.1977 is not genuine and also found that the plaintiff was not in possession of the property and dismissed the suit.
7. Aggrieved over the judgment and degree of the trial court, the plaintiff filed an appeal in A.S.No.58 of 1999 on the file of the Additional Sub Court, Mayiladudurai and the lower appellate court after taking into consideration the materials available on record found that Ex.A18, the WILL is genuine, but found that the plaintiff was not in possession of the property and confirmed the judgment and decree of the trial court and dismissed the appeal
8. Aggrieved by the findings of the lower Appellate Court, with regard to Ex.A18, the WILL dated 15.10.1977, the defendants filed the above second appeal.
9. Heard Mr.A.Muthukumar, learned counsel appearing for the appellants and Mr.P.Veeraraghavan, learned counsel appearing for the respondent.
10. At the time of admission of above Second Appeal, the following substantial questions of law arose for consideration.
"i). Whether the lower appellate Court erred in law in reversing the finding of the trial Court that Ex.A-18 is not a true WILL without adverting to the several factors relied on by the trial Court?
ii) Whether the lower appellate Court erred in law in holding that Ex.18 is a true WILL overlooking the material discrepancies in the evidence of the attestors P.Ws.2 and 3 and that the propounder has not discharged the onus that lay upon her?
iii) Whether the lower Court erred in holding that items 2 and 3 of the suit properties were not purchased benami in the name of the plaintiff's mother, when admittedly the 1st defendant was living in Isles and sending monies to India?"
11. On considering the materials available on record and the submissions made by the counsels on both the sides, it could be seen that the above second appeal has been filed only against the adverse findings of the trial court, finding, Ex.A18 WILL as genuine. So far as the decree is concerned, the lower Appellate Court confirmed the decree of the trial court, which is in favour of the defendants.
12. At the outset the counsel for respondent contended that the second appeal is not maintainable for the reason that the appeal has not been filed against the Judgment and decree and it has been filed only against the adverse findings against the respondent/defendant. In support of the said contention, the learned counsel for the respondent relied on a judgment reported in AIR 2003 Supreme Court 1989-Allahabad (Banarsi v. Ram Phal) which reads as follows:
"8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file and appeal. However, it is settled by along catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand and another v. Gopal Lal, 1967(3) SCR 153; Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties (P) Ltd., 1970 (3) SCC 573; Smt. Ganga Bai v. Vijay Kumar and others, (1974) 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment.
13. From the above decision of the Apex Court, it could be seen that under Section 100 of CPC, no second appeal will lie against any adverse finding and Second appeal will lie only against the judgments and decrees.
14. Therefore, applying the principles laid down in the above judgment, I am of the view that the above second appeal is not maintainable and is liable to be dismissed. Accordingly, the above Second Appeal is dismissed. However, there will be no order as to costs.
ars To
1. The Additional Subordinate Judge, Mayiladuthurai
2. The District Munsif, Sirkali