1. The suit was to declare the right of the plaintiff who is the appellant, in respect of two trees which he had purchased from the 3rd defendant, and to allow him to cut and remove, them, and in the alternative, and if the above prayer cannot be granted, to direct the 3rd defendant to refund the sum of Rs. 100 which he paid as the price of the trees. On the contentions of the first-defendant repudiating the right to the trees the first court denied the former relief and allowed the latter.
2. The appeal preferred by the plaintiff was dismissed by the Additional District Judge as incompetent, on the ground that the plaintiff had been granted the alternative relief.
3. I am clear that the view of the Judge is wrong and unsupportable. The plaintiff was aggrieved by the primary relief of declaration of his right to the trees being denied to him, and the fact that he was given the alternative relief is no-compensation if he is entitled to the other. If the decision of the first court is erroneous, the only course open for rectification of the error is by way of appeal and this was what the plaintiff pursued. The denial of the primary remedy amounted to ??? decree within the meaning of Section 2 of the CPC, for it was a dismissal of the suit so far as defendants 1 and 2 were concerned. As a decree, it was appealable in the absence of any provision which takes away the right of appeal. If the plaintiff for example were to sue two persons in the alternative, and the court were to decree the suit against one, and not against the other, it is hardly open to doubt that the plaintiff would be entitled to contest in appeal, that the party exonerated by the decree is the party primarily liable. This seems elementary. Bank of Behar Ltd. v. Madhusudan Lal, AIR 1937 Pat 428, is a case in point.
4. The preponderance of judicial opinion is also in favour of the view indicated above. In Bariar Singh v. Durga Gir, AIR 1952 Pat 476 the suit was for redemption and in the alternative for damages; the appeal against the refusal to grant the primary relief was held to be competent, even though the alternative relief was granted. Amir v. Sheopujan*, AIR 1946 Pat 231 was followed. In the latter case, of course, a third relief not asked for by the plaintiff was granted and the appeal against the denial of the reliefs was held to be competent Reajuddin Patwari v. Abdul Jobbar, AIR 1924 Cal 445 which was relied on against the plaintiff by the Judge, was doubted. In, the Calcutta case, the prayer was for any one of two reliefs being granted, and on this ground it is distinguishable. Speaking with respect, I find great difficulty in acceding to the view that if one of several reliefs asked for in the alternative is granted, no appeal is competent against the refusal of any of the other reliefs. It seems to me that the refusal amounts to a decree and is appealable.
5. In Shrideo Ram Janki Mandir v. Nathuram, AIR 1941 Nag 84 the question was whether a finding on a preliminary issue, by which the suit was-held to be unsustainable on one of the two causes-of section alleged in the plaint was appealable or not the Division Bench held, that the finding was a conclusive determination of the rights of the parties with regard to some of the matters in controversy in the suit, and therefore amounted to decree, as defined in the Code of Civil Procedure.
6. I therefore come to the conclusion, that the appeal preferred by the plaintiff was competent the appeal will be heard and disposed of on the merits. The second appeal is allowed with costs against the first defendant. The costs incurred in she lower appellate court will be provided for in the decree which may be passed hereafter.
JM/M/D.V.C
7. Appeal allowed.