A party to a suit can maintain an appeal against a decision of the trial Court, when certain findings which would be res judicata in other proceedings are against him, though the suit is decided in his favour for other reasons.

( 1 ) THIS reference by the High Court office raises an interesting, but by no means an easy problem. The decree of the lower Court shows that the plaintiff s suit was dismissed with costs. However, some of its crucial findings were against the defendant. The question is whether the defendant can file an appeal against that decree and judgment, convassing the correctness of those findings.

( 2 ) THE first defendant is the brother s son of the plaintiff. The suit relates to a building and was filed for recovery of its possession, with mesne profits. The case of the plaintiff was that it was originally purchased in the joint names of himself and his brother Jainarayan, though the consideration proceeded entirely from himself. Therefore, he was the sole owner of the house. Under the pretext of living in a portion of the house with the permission of the plaintiff", the first defendant got into exclusive possessession of the property and subsequently leased it out to the second defendant. The suit thus came to be filed for possession and mesne profits.

( 3 ) ON the other hand, the first defendant contended that he was the adopted son of jainarayan, though he was the natural son of Ramnarayan, another brother of the plaintiff, who was mainly responsible for earning a large fortune and purchasing the suit property. Since the property was purchased by Jainarayan, who was living with the plaintiff, it was the joint family property of the two brothers end the first defendant was entitled to a half share in the property, as the adopted son of jainarayan, while the plaintiff Was entitled to the other half share. On these contentions the lower Court inter alia framed the three following issues: " (1) Whether the plaintiff is entitled to recover possession of the suit property ? (2) Whether the plaintiff is the exclusive and absolute owner of the suit property and whether the plaintiff-first defendant took possession of the same from the plaintiff on false representation ? (3) Whether the suit property constitutes the joint family property of the first defendant and whether the proper remedy is to file a suit for general partition of the family properties ?"

( 4 ) ON the third issue, the Court found that Jainarayan himself had gone in adoption into another family, with the result that he could not be a member of the family of the plaintiffor of the first defendant. It, therefore, took the view that no question of filing a suit for general partition Would arise and found issue No. 3 for the plaintiff. However, on issue No. 2, the Court came to the conclusion that the purchase on the suit house " was a mere case of joint acquisition by the two brothers, Laxminarayan and Jainarayan. " The consequence was that it was found that the plaintiff was not the exclusive owner of the property and that it was owned jointly by him and his deceased brother, Jainarayan. While disbelieving the case that the property was handed over to the first defendant under false representation, the lower court found on issue No. 1.

( 5 ) THE suit property belonged to Jainarayan and Laxminarayan (Plaintiff ). It was jointly acquired by them. The result being that the plaintiff is entitled to half of it and Jainarayan was entitled to its other half. Jainarayan is not alive now. His half share in the suit property devolved on the plaintiff-his brother, and the defendant his brother s son. Hence plaintiff is entitled to 3/4th share in it. In other words the plaintiff and defendant are co-owners of the suit property and one co-owner is not entitled to recover the possession of the entire property by evicting the other co-owner. Hence plaintiff is not entitled to recover possession of the suit property. I find issue No. 1 against the plaintiff. " while recording these findings, the lower Court also incidentally referred to the claim of the first defendant that certain other properties besides the house, which is the subject-matter of the suit, are joint family properties in wh

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