Nand Kishore vs Smt. Sarla Devi W/O Lt Madanlal ...
2023 Latest Caselaw 12773 MP

                           1
      IN   THE     HIGH COURT OF MADHYA
                       PRADESH
                     AT GWALIOR
                      BEFORE
 HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
                 ON THE 8 th OF AUGUST, 2023
              SECOND APPEAL No. 1355 of 2022

BETWEEN:-
1.    NAND   KISHORE S/O LT RADHELAL
      AGARWAL, AGED ABOUT 78 YEARS, r/o
      GANESH COLONY NAYA BAZAAR LASHKAR
      GWALIOR.

2.    ASHOK S/O LATE RADHELAL AGARWAL
      (DIED) THROUGH LRS
      (i). HARSH AGARWAL S/O LATE SHRI ASHOK
      AGARWAL GANESH COLONY NAYA BAZAAR,
      LASHKAR, GWALIOR.

      (ii). SMT SHIKHA AGARWAL W/O SANJEEV
      AGARWAL d/o LATE SHRI ASHOK AGARWAL
      r/o PUNE (MAHARASHTRA)

                                               .....APPELLANTS
(BY SHRI ABHISHEK SINGH BHADORIYA , ADVOCATE ON BEHALF
OF SHRI S.S. BANSAL ADVOCATE )

AND
1.    SMT. SARLA DEVI W/O LT MADANLAL
      (DIED) THR HER LRS (i) SMT. MALTI
      RUNGTA W/O RAJENDRA RUNGTA r/o
      SUKHSHANTI DUPLEX AMBABADI CIRCLE
      AHMADABAD (GUJARAT)

2.     BALKISHAN S/O LATE MADANLAL r/o
      GANESH COLONY NAYA BAZAAR, LASHKAR,
      GWALIOR

3.    BALMUKUND      S/O MADANLAL     (DIED)
      THROUGH LRS
      (i).SMT SHIKHA W/O BALMUKUND
                             2
     (ii). PRANAY S/O BALMUKUND

     (iii). ANUPAM S/O BALMUKUND ALL r/o P-14,
     ROYAL        RESIDENCY     APARTMENT,
     MEHMOORGANJ,         VARANASI   (UTTAR
     PRADESH)

4.   BALGOVIND      S/O   MADANLAL    (DIED)
     THROUGH LRS
     (i) SMT SUNITA W/O LATE BALGOVIND

     (ii) AADITYA S/O LATE BALGOVIND

     (iii) KU. ADITI D/O BALGOVIND
     ALL R/O GANESH COLONY, NAYA BAZAAR
     LASHKAR, GWALIOR (MADHYA PRADESH)

     (iv) SMT RADHIKA W/O SH. MAYANK
     AGARWAL    D/O   LATE    BALGOVIND
     CHANDRASHEKHAR      AGARWAL    A/4,
     JAWAHAR COLONY, KAMPOO, LASHKAR,
     GWALIOR (MADHYA PRADESH)

     (v) SMT MEGHNA W/O PIYUSH KEDIA D/O
     LATE BALGOVIND AKOLA (MAHARASHTRA)

5.   GIRRAJ KISHORE S/O LATE POORANMAL
     (DIED) THROUGH HIS LRS
     (i) BRAJESH GOYAL

     (ii) KRISHNA KUMAR GOYAL
     BOTH S/O LATE GIRRAJ KISHORE BOTH R/O
     GANESH COLONY NAYA BAZAAR LASHKAR,
     GWALIOR (MADHYA PRADESH)

6.   RAMAN KISHORE S/O LATE POORANMAL
     (DIED) THROUGH LRS
     (i) SMT NEETU W/O RAMAN KISHORE

     (ii) SUDARSHAN GOYAL S/O RAMAN
     KISHORE BOTH R/O GANESH COLONY, NAYA
     BAZAAR, LASHKAR, GWALIOR (MADHYA
     PRADESH)

7.   SUB REGISTRAR, BEHIND COLLECTORATE,
     CITY  CENTRE,    GWALIOR   (MADHYA
     PRADESH)
                                  3

8.    STATE OF MADHYA PRADESH THROUGH
      C O L L E C T O R , GWALIOR (MADHYA
      PRADESH)

                                                        .....RESPONDENTS
(BY SHRI N.K. GUPTA SENIOR ADVOCATE WITH MS. RASHI
KUSHWAH - ADVOCATE FOR RESPONDENTS NO.1 TO 6.
SHRI KULDEEP SINGH - GOVT. ADVOCATE FOR RESPONDENTS
NO.7 AND 8/ STATE )

      This appeal coming on for hearing this day, the court passed the
following:
                                  ORDER

The appellants/defendant No.5 and 6 have filed this Second Appeal against the judgment and decree dated 18.02.2022 passed by 10th District Jud ge, District Gwalior in Civil Appeal No.21-A/2016. By the aforementioned judgment and decree, the appeal preferred by the appellants and the appeal filed by the plaintiffs/Respondents both have been dismissed on merits.

The first appeal by the present appellants/defendant No.5 and 6 was preferred being aggrieved by the judgment and decree dated 16.07.2014 passed by 10th Civil Judge, Class I, Gwalior in Civil Suit No.133-A/13 filed for declaration and injunction by the plaintiffs (respondent No.5 and 6 of the present appeal) has been dismissed.

In the trial Court, the present appellants have not filed any written statement or any cross suit or counter claim. There was not even any findings against the present appellants in the judgment of the trial Court. The trial Court's judgment which was of dismissal of suit. So the present

appellants/defendant No.5 and 6 have no right to file appeal against the judgment and decree of the trial Court, as there was no decree against

them but the same was in their favour. Though there was no findings against the present appellants in the trial Court's judgment, it is to be noted that there is also no provision in Civil Procedure Code to file an appeal against adverse findings. In this regard, the judgment of this Court in the case of Gendalal & Another Vs. Raghunath (dead) Vs. Kamod Singh & Others(2006 (4) MPLJ 510) deserves to be mentioned. The right to file appeal is granted by the statute and cannot be inferred by the Court or by the parties.

The Hon'ble Apex Court in the case of State of Andhra Pradesh & Others Vs. B. Ranga Reddy CD) by LR's & Others, 2019 (4) JLJ 471 has held that there is a distinction between the decree and the findings on issues and appeal will lie only against the appeal in terms of Section 96 of C.P.C. and in terms of Section 2(2) of C.P.C. and not otherwise. Thus, the first appeal by the present appellants/defendant No.5 and 6 could not have been entertained by the first appellate Court, as there is no provision regarding it in the C.P.C. So the impugned judgment and decree passed by the first appellate Court is nullity so far it relates to the appeal by the present appellants/defendant No.5 and 6. In this regard, this Court is bolstered by the decision of the Apex Court in Banarasi & Others Vs. Ram Phal (2003 (9) SCC 606). Since the first appeal was not maintainable at all as there exists no judgment and decree of that Court in the eyes of law.

The Apex Court judgments cited by the counsel for the appellants in Civil Appeal No.513/1979 (Mahboob Sabab Vs. Syed Ismail and

Others, decided on 23.03.1995) and Civil Appeal Nos.451-58 of 1994 (Superintending Engineer and Others Vs. B. Subba Reddy, decided on 26.04.1999) move in other realm of facts, hence, they are of no help to the appellants.

Hence, this Second Appeal is not maintainable as the illegality once committed cannot be allowed to be continued or perpetuated. Resultantly, this appeal is dismissed as not maintainable.

(ROOPESH CHANDRA VARSHNEY) JUDGE mani

Digitally signed by SUBASRI MANI Date: 2023.08.10 11:55:29

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