This second appeal arises in a suit brought by the plaintiff claiming as mortgagee from certain Mahajanams of the village to recover possession of suit properties from defendants 1 and 2. The Mahajanams were made party defendants for the express purpose of determining the rights of all parties concerned. Defendants 1 and 2 denied the right of the Mahajanams as well as that of the plaintiff. They pleaded that they had neither title nor possession within 12 years before the date of suit.
The first Court found the points raised in favour of defendants 1 and 2 and dismissed the suit. Against that decree the plaintiff did not appeal. But two of the Mahajanams appealed. As a matter of fact the 1st Court had dismissed the suit against the Mahajanams also with costs. Nevertheless as the funding of the first Court that neither the mortgagors nor the mortgagees had any title or possession within the last 12 years was against the interest of the mortgagors, they appealed against that decree. In appeal the case has been disposed of in a curious manner by the Subordinate Judge. He discussed the evidence in the case and was apparently inclined to hold that both title and possession with in the last 12 years of the mortgagors were established but he has come to no very definite and clear findings on these points. He goes on to say:—
“But for the fact that the plaintiff whose suit was dismissed has not chosen to appeal against the decree there will be no difficulty in the appropriate decree to be passed herein.”
Apparently if the plaintiff had appealed he would have been given a decree for possession against defendants 1 and 2. But the Subordinate Judge says:
“I am unwilling to set aside the decree of dismissal so far as the plaintiff is concerned without his taking exception to it, but at the same time such conduct of the plaintiff should not be allowed to prejudice the rights of the Mahajanams two of whom are the appellants.”
He therefore proceeds to declare
“that the rights of the appellants amongst other Mahajanams in the sites A, B, C, D are left undetermined”
and dismisses the appeal. He makes the declaration so that by reason of the default of the plaintiff the rights of the appellant may not be prejudiced. I think that this is not a proper disposal of the appeal. The learned Judge should have come to definite findings on the points raised in the case and if he was of opinion that the title of the mortgagors as well as their possession within 12 years was proved he should have given a decree giving effect to those findings. It may be that as the mortgagors are not entitled to possession they could not get a decree for possession. But a decree for possession could have been given to the plaintiff, mortgagee under O. 41, R. 33, Civil Procedure Code, even though he had not appealed. It was contended that the rule above mentioned could not be applied because the appeal of the mortgagors in the lower appellate Court was itself not a competent one as there was nothing in the decree passed by the first Court which was against them. It is, however, clear to my mind that though that suit was dismissed against them by the first Court that Court had given effect to its adverse findings that the mortgagors as well as the mortgagee had no title and no possession within 12 years by dismissing the plaintiff's suit. So long as that dismissal remained it would prejudice the mortgagors. They bad, therefore, a right of appeal against the first Court's decree. The learned vakil for the respondent cited The Secretary of State v. Saminatha Kownden(1) in his favour. But that case is different from the present case. There it was held as the headnote shows
“the fact that in the judgment there is an adverse finding on a point not directly or substantially in issue between the parties will not give a party a right to contest such a finding where the decree is entirely in his favour and does not necessarily imply that finding. The finding would not act as res judicata as regards such a point.”
In the present case though the decree was really in favour of the mortgagors there were findings against their contentions on which the Court acted dismissing the plaintiff's suit. Those findings are on points directly and substantially in issue between the parties; in fact they were practically the only issues of importance in the case. In these circumstances the ruling in The Secretary of State v. Saminatha Kownden cannot be applied. I am inclined to think that the mortgagors were entitled to appeal. This view is in accordance with the view taken by Sir Kumaraswami Sastri J., in Venkateswaralu v. Lingayya(2).
In the lower appellate Court no objection seems to have been taken by the 1st and 2nd defendants to the maintainability of the appeal on the ground that there was no decree against the appellants. The appeal, I think, was a competent one in the lower appellate Court and it should have been disposed of according to law. The decree of the lower appellate Court must, therefore, be set aside and the case remanded to it for a fresh disposal according to law. The costs will abide and follow the result. The Court fee paid will be refunded to the appellant.
Appeal allowed: case remanded.