S.H. Sheth, J.
1. The plaintiff filed O.S. No. 13 of 1908 originally against four defendants for declaration of his title to the suit land and for recovery of possession thereof. The suit land is situated in the City of Hyderabad and is 19 acres in extent. The plaintiff alleged that he was the Inamdar of this land and that in fact the suit land was a part of a big Inam which he owned. He further alleged that in 1353 F. (1944 A.D.) he was wrongfully dispossessed by the Government of the suit land. The State of Andhra Pradesh is the first defendant. The second defendant claims to be the rival Inamdar in respect of the suit land. Defendants 3 and 4 are the grantees of a part of land from defendant No. 2. Defendants 5 to 8 are also grantees. Amongst defendants 9 to 77 there are some defendants who claim a share in the suit land with defendant No. 2 and others are purchasers. The plaintiff originally joined to the suit defendants 1 to 4. Defendants 5 to 77 were joined to the suit later at the instance of the plaintiff.
2. First defendant (State of Andhra Pradesh) filed written statement and denied the plaintiff's claim. They claimed that the suit land belonged to the State. They denied the Inam claimed by the plaintiff. They also pleaded that the suit was barred by time. Defendant 2 filed his written statement in which he set up his own title to the suit land. He claimed that he was the Inamdar of the suit land and not the plaintiff. He specifically pleaded that the suit land was a part of Inam Maqta Hazrat Naimatullah Shah and that he got the suit land by virtue of the decree passed by the Revenue Court in 1327 F. (1918 A.D.) He also pleaded that the suit was barred by time and alleged that the plaintiff was never in possession of the suit land. The other defendants filed their written statements and supported the 2nd defendant.
3. The learned trial Judge raised as many as 11 issues and held that the plaintiff has not proved his claim. While recording the finding against the plaintiff, he also recorded the finding that the defendants other than defendant 1 have not proved their title. He therefore dismissed the plaintiff's suit in its entirety.
4. It is this decree of dismissal which is challenged by the 4th defendant in C.C.C.A. No. 85 of 1976 and by the second defendant in C.C.C.A. No. 116 of 1976.
5. The preliminary contention which has been raised by the learned Advocate-General who appears on behalf of the first defendant is that these appeals are not maintainable. His contention is that the entire decree passed by the Court below is in favour of the defendants and that therefore they could not have appealed against that decree. In reply it has been contended on behalf of the appealing defendants that inasmuch as the trial Court has recorded its finding against the appealing defendants that they have not proved their title to the suit land, they are entitled to challenge that finding in these appeals. The question which therefore arises for our consideration is whether these three appeals directed against a finding only are maintainable when the entire decree is in favour of the appealing defendants. It may be stated at this stage that the plaintiff who lost his suit and against whom the learned trial Judge passed the decree has not filed any appeal against it.
6. It is well settled that a party who is adversely affected by the decree can alone appeal against it. In a case where a finding has been recorded against the defendant but the suit has been dismissed, he may challenge that finding if it is res judicata and is binding upon him in future. In other words if the decree against the plaintiff could not have been passed without deciding an issue against the defendant, the defendant could probably have challenged that finding in an appeal. However, if the plaintiff' suit can be dismissed without recording any finding against the defendant and yet if a finding has been recorded against the defendant then such a finding is of no consequence because the success or failure of the plaintiff's suit is not interlinked with it and in a large number of cases depends upon the proof or otherwise of his own title. A plaintiff cannot succeed merely because the defendant has no title. Irrespective of whether a defendant has a title or not if the plaintiff fails to prove his title his suit must fail. In other words if a plaintiff cannot get at his right without trying and deciding a case between co- defendants the Courts would try and decide the case and the co- defendants would be bound by the decree. However, if the relief given to the plaintiff does not require the decision of a particular case, the co- defendants would not be bound as between them by any finding which might have been recorded in respect thereof. In a case of this type three conditions are necessary to be fulfilled. Firstly there must be a conflict of interest between the co- defendant. Secondly it should be necessary to decide that conflict in order to give the plaintiff an appropriate relief. Thirdly there must be a decision of the question between the co-defendants.
7. In Secretary of State v. Swaminatha Koundan, ILR 37 37 Mnd 25 : (AIR 1915 Mad 294), it has been laid down by a Division Bench of the Court that no appeal lies against the decree which does not by itself in some way or other affect the appellant. It has been further observed in the decision that merely because there was an adverse finding in the judgment on a point not directly or substantially in issue between the parties, a party aggrieved by such a finding would not have a right to contest it when the decree is entirely in his favour and does not necessarily imply that finding. In Venkobacharlu v. Radabayamma, AIR 1924 Mad 858,a Division Bench of the Madras High Court had laid down that for an appeal to lie, it is not necessary that the finding should be actually embodied in the decree. However, where a suit is dismissed and the Judgement contains some findings as between co- defendants which are not embodied in the decree nor implied therein such findings do not amount to res judicata and are not appealable. In Latchayya v. Kotamma, (1924) 47 Mad LJ 743 :(AIR 1925 Mad 264), it has been held that a party in whose favour a decree has been passed cannot appeal against the decree merely on the ground that the finding on one of the issues is against him as such a finding would not be res judicata. In that decision a large number of earlier decisions have been reviewed. Reference may in particular be made to the decision in Jamait-un-Nisa v. Lutf-un-Nissa, (1885) ILR 7 All 606 (FB), in which a Full Bench of Allahabad High Court held that a party not aggrieved by a decree was not competent to appeal against the decree on the ground that an issue was found against him. In Bapayya v. Ramakrishnayya, AIR 1945 Mad 39, it has been held by a Division Bench of Madras High Court that the defendants having secured the dismissal of the suit as not maintainable in the manner prayed must accept it and as there was nothing in the decree which would affect the defendants adversely and as no finding in the judgment could operate as res judicata no appeal by him was maintainable. In Kesavan v. Lakshmy Amma, : AIR1968Ker154 , the principle which has been laid down is that in a case where there are two defendants who have a dispute inter se and if that dispute has been decided, one of the defendants aggrieved by the finding recorded on the controversy between the two defendants can appeal against that finding only if it is res judicata against him in a subsequent suit. It is therefore clear that if all the defendants have common interest in obtaining the dismissal of the suit filed by the plaintiff and if for dismissing the suit it is not necessary to decide the controversy between the defendants inter se the finding recorded on the controversy between the defendants themselves would not be res judicata. No appeal in the aforesaid circumstances would lie against the finding at the instance of the defendant aggrieved by it.
8. The question therefore which arises for our question in this case is whether it was necessary for the learned trial Judge to adjudicate upon the title of the appealing defendants in order to pass decree which he passed. The learned trial Judge dismissed the suit because the plaintiff had failed to prove his title. In order to decide whether the plaintiff had a title to suit land or not it was not necessary for the learned trial Judge to decide whether the appealing defendants had title to it or not. Once the plaintiff failed to prove his title, the suit filed by him must come to an end irrespective of whether the appealing defendants had title to the suit land or not.
9. It is stated in this context that on behalf of the State of Andhra Pradesh (1st defendant ) an application was made before the learned trial Judge to delete Issues 4 to 6, 9 and 10. It was I.A.No. 783 of 1973. Issue 4 raised the question relating to the exclusive title claimed by 2nd defendant and also the validity of the title of defendants 3 to 18 and 39 and 40 to the portion of the suit land purchased by them from the 2nd defendant. Issue 5 related to the title of defendants 19 to 37 along with that of the second defendant. Issue 6 also had something to do with the title of the 2nd defendant. Issue 9 related to the maintainability of the suit on grounds alleged by defendants 19 to 37 in their written statement. Issue 10 related to the contention raised by defendant 8 that the suit was barred by time against him. Paragraph 32 of the Judgment under appeal shows that he deleted only Issues 5, 9 and 10 and did not delete the other issues, for which a prayer was made in I.A. 783 of 1973. We are of the opinion that it was not necessary for the learned trial Judge for passing decree of dismissal against the plaintiff to decide the title claimed by the appealing defendants. The finding recorded against the appealing defendants therefore does not operate as res judicata and is therefore not binding. The appealing defendants are therefore not adversely affected by that finding because the decree which has been passed by the learned trial Judge is entirely in their favour. These three appeals are therefore not maintainable and are accordingly dismissed with no costs.
10. C.M.P. 1805 of 1977 has been filed for taking documents Exs. B- 103 and B- 104 on record as additional evidence in C.C.C.A. No. 116 of 1976. C.M.P. 1806 of 1977 has been filed for impleading the petitioner therein as respondent 8 to C.C.C.A. No. 116 of 1976. Since we are dismissing the appeals in limine on the ground that they are not maintainable these two petitions do not survive. They are therefore dismissed with no costs.
11. Appeals dismissed.