(1) This is a second appeal by defendant No. 1. The property in dispute in the suit from which this appeal arises orignially belonged to one Ganoji, who died in 1345F, leaving behind him two widows named Santabai and Bai bai. Plaintiff alleged that he was adopted by Santabai in 1348F in pursuance of the permssion given to her by her husband, and that a registered deed of adoption, dated 10-8-1348F, was executed by her. He alleged that he was brought up by Santabai; that Santabi died about 3 years before he instituted the suit, and, subsequently, he was driven away by her co-widow and his step- mother Baibai. Plaintiff claimed a declaration that he was the adopted son of Ganoji and claimed possession on that basis. Defendant No. 1 was Baibai. There were two other defendants. They were joined on th ground that they were cultiviators and in actual possession of the suit lands. Ultimately, it was decided that these two defendants were unnecessary parties. The main contest was between plaintiff and defendant No. 1, Baibai. Her defence was that plaintiff was not adopted by Santabai, and that the story about adoption was false. She denied that Santabai had executed any adoption deed. She also contended that Santabai was not competent to adopt by virtue of a custom prevailing amongst the community to which the parties belong. She also pleaded limitation. She also denied that her husband permitted Santabai to make an adoption.
(2) On these pleadings, substantially, four issues were raised in the trial Court. The first was whether plaintiff proved that he was adopted by Santabai in pursuance of the authority of her husband and by performance of the necessary religious eremonies. The third issue was whether Santabai was competent to adopt. It is common ground that this issue was raised to try the contention of Baibai that there was a custom by which Santabai was precluded from adopting. The other two issues were whether the registered deed of adoption was proved and whether the suit was in time. The trial Court did not record its findings on issues Nos. 2 and 4. It recorded its findings only on issues Nos. 1 and 3. It held that the alleged custome not to adopt was not proved. However, on the first issue relating to adoption, the trial Court held that plaintiff had failed to establish that the actual giving and taking had taken place. Consequently, it recorded a finding that issue No. 1 had not been proved. It came to the conclusion that, therefore, it was not necessary for it to record its findings on issues Nos. 2 and 4, and, on the basis of its finding on issue No.1, it dismissed the claim of plaintiff. Plaintiff went in appeal to the District Court. That Court reversed the finding of the trial Court on issue No. 1. It held that issue in favour of plaintiff. It held that adoption had been proved and, on this basis, it passed an order on 29th July 1952 A.D. remanding the suit to the trial Court with a direction that that Court shall proceed to try issues Nos.2 and 4 and dispose of the suit on merits and in accordance with law. Defendant No. 1 Baibai did not prefer any appeal from this order of remand. After the remand, the trial Court proceeded to decide the suit. It appears that Baibai again contested the adoption of plaintiff. The trial Court, however, held that it was not competent for it to decide that issue and the matter was concluded by the judgment of the District Court. The finding relating to custome, which had been recorded by the trial Court earler, was also sought to be challenged in that Court. The contention was negatived on the ground that the matter had already been decided by that Court earlier, and, therefore, the trial Court was no longer competent to deal with that issue. On the remaining two issues, the trial Court held that the suit of plaintiff was not barred by limitation and that the registered deed of adoption had been proved. This decision was given be the trial Court on 13th January 1952 A.D., an consistent with the aforesdaid findings, the that Court decreed the claim of plaintiff. From the decision, Baibai preferred a first appeal to the District Court. All the four issues which hd been raised in the trial Court were again sought to be re-agitated by Baibai in the District Court. The District Court took the view that the issue about custome was not open to challenge as it had not been challenged in the first appeal No. 173/4 of 1951 in which the order of remand, dated 29th January 1952 was passed. As regards the question of adoption, the District Court held that the matters was no longer open, and, the finding, recorded by that Court in the earlier appeal No. 173/4 of 1951, was conclusive as it was not appealed against by Baibai. That Court concerred with the findings of the trial Court concurred with the findings of the trial Court on the question of limitation and proof of adoption deed. Consistent with these findings, the District Court dismissed the appeal of Baibai kand confirmed the decree of the trial Court. It is form this decree that the present second appeal is filed.
(3) Mr.V. S. Deshpande, who appears on behalf of Baibai, raises two points in this appeal. His first point is that the finding of the District Court that that Court was not entitled to decide issue No. 1 relating to the proof of adoption was not correct. His second point is that the finding, which had been earlier recorded by the District Court that adoption had taken place, was not, in fact correct.
(4) Mr. S. J. Deshpande, who appears on behalf of palintiff, however, raises a preliminary point. He submits that the finding of the District Court, recorded in Appeal No. 173/4 of 1951, that plaintiff had proved his adoption, was final and conclusive and that that finding cannot be challenged by Baibai on account of the fact that Baibai had failed to prefer an appeal from that decision of the first appellate Court, which she was competent to prefer under O. XLIII, R. 1, clause (u) of the Code of Civil Procedure. This submission is based upon S. 105 sub-s. (2) of the Civil Procedure Code. In orders to decide this point, it is necessary to read s. 105 as a whole. That section is as follows:
'105. (1) Save as otherwise expressly provided, no appeal shall lie form any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-s.(1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness'.
The first part of sub-s. (1) provides that an appeal shall not lie from any order made by a Court in the exercise of its original or appellate jurisdiction, unless an appeal is provided for. Therefore, the normal rule is that an appeal does not lie from an order passed either by an original or an appellate Court. Order 43, C. P. C. provides for appeals from several kinds of orders. The latter part of sub-s.(1) of S. 105 says that where a decree is appealed from, then, the order passed by the original the appellate Court, which affects the decision the case can be challenged in the appeal. Therefore, the effect of sub-s. (1) is that where an interlocutory order is passed in the course of a litigation, whether a appeal is provided for for the same or that interlocutory order can be challenged at the time of the hearing of appeal from the decree which ultimately comes to be passed in that litigation, even though appeal may not have been filed from that interlocutory order, provided the error, defect or the irregularity in the interlocutory order affects the decision of the case. It is now well settled that it is not open to a party to challenge an interlocutory order by itself if an appeal is not provided for the same, or if an appeal is provided or and one is not preferred from that order. But, if the order, which is appealed from affects the decision of the case on th merits, then, the interlocutory order is open to challenge. Therefore, the true effect of sub-s. (1) is that an interlocutory order, which happens to be passed in the course of any litigation, is open to challenge provided that the interlocutory order has affected the decision of the case on the merits. The expression 'affecting the decision of the case' used in sub-s. (1) has been construed to mean a decision on the merits of the case, and this position in law is not challenged by Mr. V. S. Deshpande. Sub-section (2) of S. 105 provides that
'notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand, from which an appeal lies, does not appeal thereform, he shall thereafter be precluded from disputing its correctness'.
Therefore, there is no doubt that, if an order of remand is made in an appeal, and if that order is appealable, and, further if an appeal does not come to be preferred. then, the order of remand becomes trial and conclusive and is not impeachable lin any other proceedings. Mr. V.S. Deshpande does not dispute the correctness of this proposition. But the contends that the conclusiveness attaches only to the order of remand and not to the finding on which the order of remand is ultimately based. Therefore, his submission is that, in the present case, though it is not open to Baibai to challenge the order of remand which was passed in appeal No. 173/4 of 1951, which ordered the trial Court to proceed further for the determination of issues Nos. 3 and 4, it is still open to Baibai to challenge the ending of the first appeallate Court in the aforesaid appeal that plaintiff had proved that he was adopted by santabai. Mr. V. S. Deshpande supports his submission by contending taht there is a clear distinction between an order and a jugment. He dies upon the definitions of these two words given of S. 2 of the Code of Civil Procedure. An 'Order' has been defined in S. 2, sub-s. (14), to mean the normal expression of any decision of a Civil Court which is not a decree; and, a' Judgment' has been defined, in sub-s.(9), to mean the statement given by a Judge of the grounds of a decree or order. Mr. V. S. Deshpande contends that, when an appellate Court delivers a judgment, which results in an order of remand, then, conclusiveness attaches only to the latter order and not to the finding or statement of reasons given for making that order. He contends that sub-s. (2) of S. 105 has the effect of depriving a litigant of his right to get his matter decided by a higher Court, and takes away the jurisdiction which otherwise vests in the higher Court, and should be strictly construed. He says that, if, really the intention of the Legislature was to preclude a higher Court from determining a question, which was decided by the first appellate Court, when it passed in order of remand, then, the Legislature would have expressly stated so and provided that conclusiveness attached not merely to the order of remand, but, also to the judgment i.e. the statement of the grounds on which the order of remand was based. However, there are two objections to this line of reasoning. The first is that sub-s. (2) of S. 105 has got to be read in the context of sub-s. (1). Sub-section (2) appears to have been intended as an exception to that which is provided for in sub-s. (1). As I have already indicated, the true effect and meaning of sub-s. (1) is to enable a litigant to agitate all interlocutory orders in so far as they affect the decision on the merits of the case, even though an appeal on the merits of the case, even though an appeal may not have been preferred from those interlocutory orders. If sub-s (1) had stood by itself without sub-s. (2), then, it is clear that an order of remand could have been challenged or impeached by a litigant in a higher Court at a later stage, even if he may not have preferred an appeal therefrom. In fact, this was what was held by the Calcutta High Court in Khadem Hossein v. Emdad Hossein ILR 29 Cal 758 . It was to nullify the effect of this decision that sub-s. (2) of S. 105 was introduced by the Legislature in the Civil Procedure Code of 1908. Therefore, it is quite clear that the intention of the Legislature was to make an exception in the case of an appealable order of remand, whereas other appeleable orders can be challenged in appeals in so far as those orders affect the decision on the merits it cannot be so done in the case of appealable orders of remand. Therefore, so far as the order of remand is concerned, the same becomes final and conclusive and cannot be challenged even though it affects the decision on the mertis. Therefore, in my view whereas sub-s (1) of S. 105 of the Code of Civil Procedure was enacted to advocate that all orders, including appelable orders, could be impeached on the mertis in appeals from decrees, sub-s (2) was added so that appealable Secondly, if the operation of sub-s. (2) was confinment or the finding on which the order of remand was based then, one would not be giving effect to the lkegislative intention, as it can be gathered from a combined reading of sub-s. (1) and (2) of S. 105. If the argument of Mr. V. S. Deshpande were to he upheld that the conclusiveness attaches only to the order of remand and not to the finding on which it is based, then, the legislative provision contained in sub-s. (2) would become nugatory and nullified, and the higher Courts would be competent to interfere in appeals from all orders of remand for it is difficult to contemplate of a case in which the finding can be successfully challenged and the order of remand can be maintained. If the finding can be successfully impeached, it must necessarily follow that the order of remand must be held to be bad and unsustainable.
(5) Sub-section (2) of S. 105 was intofduced for the first time in the Code of 1908 as also S. 97. By S. 97, the Legislature provided that, in case a party did not prefer an appeal from a preliminary decree, then he shall be precluded from disputing its correctness in an appeal which may be preferred from the final decree. The language which has been used by the Legislature in section 97 is identical with the language which has been used in sub-section (2) of section 105 of the Civil Procedure Code. There are decisions of several High Courts which have interpreted the expression 'precluded from disputing its correctness', and it is now well-settled that, when an appeal is not preferred from the preliminary decree, then all the findings which have been recorded by the trial Court which led to the passing of the preliminary decree become conclusive and cannot be challenged in an appeal from the final decree. It is only if this construction is given to section 97 that finality will be attached to the preliminary decree which is not appealed from. If another construction is given which leaves it open to any party to challenge the findings upon which the preliminary decree was passed, then, section 97 of the Civil Procedure Code would be rendererd nugatory.
(6) The question about the interpretation of sub-section (2) of section 105 arose directly in Gokarakonda Audinarayudu v. Surapureddi Mangamma AIR 1943 Mad 706. In that case, the first Appellate Court had decided that section 47 of the Civil Procedure Code applied to the facts of the case, and grounded its order of remand on that decision. No appeal was preferred from this order of remand, and, in a second appeal, which was preferred after the decision was given by the executing Court after the order of remand, the question about the finality of the finding recorded by the first appellate Court that section 47 applied to the facts of the case was raised. In dealing with this contention, King J. held that
'where a case was remanded on the ground that section 47 applied to the facts of the case and no appeal was filed from that order of remand, the parties were precluded from disputing the correctness of the finding that asection 47 applied to the facts of the case.'
In the case reported in Karam Singh v. Vir Singh, AIR 1921 Lah. 154, the same view was taken, although the question did not directly arise for the decision in that case. The question which was raised in that case was whether an appeal lay from that part of the order of the first appellate Court which upheld a part of the decision arrived at by the trial Court. In that case, the trial Court had dismissed the claim of the plaintiff on the ground that the suit was not maintainable as the plaintiff had not prayed for a decree for possession. The appellate Court upheld this view in so far as the plaintiff had prayed for a decree for an injunction, and reversed it in so far as the plaintiff claimed for a specific amount of compensation. Plaintiff went in appeal against the decision of the first appellate Court that the suit of the plaintiff was not maintainable in so far as he claimed for a decree for an injunction. The appeal was resisted on the preliminary ground that an appeal did not lie from the order of the first appellate Court which was appealed from. In repelling this argument, Wilberforce J. observed as follows:
'With respect, moreover, to the portion in which the plaintiff has been unsuccessful it must be noticed that he is precluded from questioning the decision in any way other than by an appeal against the order of remand. This is clear from the provisions of section 105(2).'
Therefore, the learned Judge held, in that case that it was necessary for the plaintiff to prefer the appeal from that part of the decision of the learned appellate Judge, which had upheld the decision of the trial Court, because, if he did not do so then, the decision would become conclusive and final.
(7) For the aforesaid reasons, I have come to the conclusion that, on a correct construction of sub-section (2) of section 105, not only the order of remand, which was passed on 29th January 1952, is final and conclusive, but, even the finding which the first appellate Court gave in support of that order of remand, is also final and conclusive.
(8) Mr. V. S. Deshpande, however, submitted that the order of remand, which was passed in appeal No. 173/4 of 1951, was not an applicable order. He submitted that it was not an order which passed under Order XLI, rule 23, Civil Procedure Code. His contention was that this was an order either under Order XLI, rule 23, Civil Procedure Code. His contention was that this was an order either under Order XLI, rule 25, or an order either under Order XLI, rule 25, or under section 151 Civil Procedure Code. I do not think I can uphold this contention. Mr. V. S. Deshpande's contention was that, in order that an order may be under Order XLI, rule 23, it was necessary that the decree of the trial Court should necessary that the decree of the trial Court should have been reserved, and, his contention was that there were no such words used in the order of remand. It is true that the order of remand does not say in terms that the decree of the trial Court is reversed, but, at the same time, if the order of remand is read as a whole, there is no doublt what soever that the decree was reversed. The final portion of the order stated that the trial Court was directed to dispose of the suit on the merits in accordance with law. The actual events which have happened after the order of remand also corroborate the view that the decree of the trial court was reversed. If really the order had been under Order XLI, rule 25, then the trial Court would not have passed a fresh decree. In that contingency, the trial Court would have only certified findings to the appellate Court. Moreover, there would have been a fresh appeal. The old approach would have been continued on the file, and the fresh findings of the trial Court would have been dealt with in that first appeal. There is no doubt that nothing of this sort has happened in the present case. The appeal was disposed of. The ttial Court passed a fresh deceee, and the trial Court was competent to do theis under the order of the appelate Court, which directed it to dispose of the dispose of the suit in accordance with law. Therefore, there is no doubt whatsoever that the order of remand was not passed under Order XLI, rule 25 Civil Procedure Code. As regards section 151, Civil Procedure Code, if the order is sustainable under Order XLI, rule 23, then, that section will have no application. In order that rule 23 may apply, it is necessary that there should be a decision by the trial Court on a preliminary point. The expression 'preliminary point' does not mean the same thing as a 'preliminary issue'. A 'preliminary point' means a point, the determination of which enables the trial Court to pass a decree and relieves it from the necessity of determining the other points, involved in the suits. Mr. V. S. Deshpande further contended that the expression 'preliminary pont' should be confined only to points of law and points of jurisdicction, and not to points of fact. There is nothing in rule 23 which goes to support this contention. Even if the point decided by the trial Court happens to be a point of fact, but if the test is satisfied that the point was such that a decree could bave been granted by the trial Court on the basis of its decision on that point, then, it would be a preliminary point within the meaning of Order XLI, rule 23, Civil Procedure Code. Applying this test, there is no doubt whatsoever that the present suit was decuded vt tge trial Court on the preliminary point that issue No. 1 had not been established by the plaintiff. It is quite clear that, in ordeer to succeed, it was necessary for the plaintiff to establish that he was adopted by Santabai, and, if the trial Court was established, then, the trial Court and could take the view that it was not necessary for it to determine the other issue involved in the case. Therefore, in any opinion, the order, which was passed on 29th July 1952 was an order which was passed under Order XLI, rule 23, and, therefore, that order was appealable, and, as Baibai did not prefer an appeal from that order, then, she is precluded form challenging the finding on which that order of remand was based.
(9) The second contention of Mr. V. S. Deshpande was that the preliminary point, which was decided by the trial Court, did not cover all that was contained in issue No. 1, but that it covered only one part thereof. He contended that the trial Court had only decided that the actual physical act of giving and taking had not taken place, and the suit of the plaintiff had been dismissed only on that ground; and that the other points involved for deciding the question of adoption, had not been determined by that Court. He, therefore, contended that the decision of the first appellate Court in appeal No. 173/4 of 1951 could have the effect of only reversing this decision and no more. He contended that finality should be given only to this limited finding and should not be given to the whole of issue No. 1 relating to the proof of adoption. I do not think I can uphold his contention. In order to determine the question of finality, it is not the decision of the trial Court which is material. Finality does not attach to that decision, but the finality attaches to the decision of the first appellate Court, and, it is to the decision of that Court that one must turn for the purpose of determining the question as to what part thereof is final and convlusive. On this subject, there is no doubt whatsoever that the first appellate Court has decided the whole of the issue No. 1, and it definitely held that the plaintiff was adopted by Santabai. Mr. V. S. Deshpande contended that this finding was erroneous inasmuch as the first appellate Court had assumed that the question about the religious ceremonies had been decided in favour of plaintiff, whereas, in fact, no such decision was given by the trial Court. The fact that the first appellate Court has made a wrong assumption. and that issue No. 1 has been wrongly decided on that ground, does not, in any way, affect the question of finality. The question is not whether a finding is erroneous, but whether a finding, in fact, has been given; and if, in fact, it has been given, it becomes conclusive. Now, on this subject, there is no doubt, as I have already stated that the first appellate Court has decided in specific terms that issue No. 1 has been proved by plaintiff. This is also clear from the fact that the first appellate Court has, in specific terms directed that the trial Coutt should decide only issues Nos. 2 and 4. Therefore in my opinion, the order of remand was based upon the finding on the whole of issue No. 1, and that being so, finality attaches to the decision on the first issue, and Baibai is now precluded from contending that the plaintiff was not the adopted son of Santabai.
(10) Mr. V. s. Deshpande further contended that there was an inconsistency in the finding which had been recorded by the first appellate Court. He stated that, in arriving at a decision os issue No. 1, the first appellate Court had taken into consideration the fact that a registered deed of adoption had been made; whereas, this point was the subject-matter of issue No. 2 which was undecided. However, this does not necesaarily mean ian inconsistency. It means that if issue No. 2 is found in favour of Baibai, then, the suit of the plaintiff would come to be dismissed. On the other hand, if that issue is found in favour of plaintiff then, it that case, it would strengthen the evidence which the plaintiff had led on the subject of adoption. All that the appellate Court has done is to give an anticipatory and provisional reasoning in support of its finding on the first issue and no more.
(11) Mr. V. S. Deshpande contended that although he may be precluded from disputing the correctness of the finding recorded on issue No. 1, he was entitled to dispute the corretness of the finding on issue No. 2, which related to the execution of an adoption-deed by Santabai. there is no doubt that he could do so. Mr. S. J. Deshpande did not dispute this proposition. Therefore, the next question for consideration is whether Santabai had executed an adoption-deed. On this subject, plaintiff has examined two witnesses-Maruti and Kishanrao. Both of these witnesses have deposed that Santabai had executed the adoption-deed in their presence. It is true that Maruti is the father of plasintiff, and, as such, is highly interested. If the evidence of Maruti alone had been there, in view of the fact that the deed is in a spoiled condition, one may not have attached much importance to his evidence. But, so far as Kishanrao is concerned, I ado not think is evidence can be rejected on any legitimate ground. He is quite definite that when Santabai executed the deed, he was present and that he was also present when santabai acknowledged her execution before the Sub-Registrar, and that he identified santabai before that Officer. The main ground of attack of Mr. V. S. Deshpande appears to be that the identity of Santabai as the executant of the adoption-deed has not been established. The case of Baibai was that another lade was made to pose as Santabai before the Sub-Registrar, and the deed had been got executed by the pretender. Kishanrao's evidence definitely over-rules this contention. It is true that Kishanrao does not belonging to the village to which Santabai did. It is also true that he had not much connection with Santabai, But, at the same time, his evidence is wuite definite that he knew Santabai, and that it was she who had taken plaintiff in adoption; that it was she who had put the thumb impression on the document; and that it was she whom he had identified before the Sub-Registrar. This witness has been believed by the trial Court as well as by the first appellate court, and I do not think it would be proper to reject his testimony in second appeal.
(12) For the aforesaid reasons, the appeal must fail and is dismissed with costs.
(13) Rule in Civil Application No. 937 of 1959 is discharged with costs.
(14) Order accordingly.