A party cannot appeal against a decree in their favor, even if there are adverse findings against them, as the decree is not based on those findings but is made in spite of them.

S.Sarwar Ali, J.

1. This second appeal is by the plaintiffs. They filed the suit for specific performance of contract and for-confirmation of possession and, in the alternative for recovery of possession. Various pleas were raised in the written statement filed by defendants 4 to 6. One of the issues framed in the suit on the basis of the pleas raised by the parties was issue No. 4, which was as follows:

"Is the survey entry with respect to the suit lands incorrect? Whether the lands of Khata No. 136 belonged to defendants Nos. 4 to 6 and Dipan Singh and was in their possession?"

2. The plaintiffs claimed title on the basis of a sale deed executed by defendants 1 to 3 (defendants first party) on the 21st April, 1962 for a sum of Rs. 250/-. . According to defendants second party, namely defendants 4 to 6, the land of Khata No. 136, which was the subject-matter of the suit, did not belong to the defendants first party and it belonged to them and was in their possession. According to them, the entry in the survey record-of-rights was incorrect.

3. The trial Court, on a consideration of the entire evidence in the case, came to the conclusion that the plaintiffs were in possession of the suit land from the days of execution of the sale deed in their favour by defendants 1 to 3. It was also of the view that the case of defendants 4 to 6 in this regard was not correct. Since, however, it came to the conclusion that the sale deed executed by defendants 1 to 3 in favour of the plaintiffs could not confer any title upon them, the plaintiffs were held not entitled to any of the reliefs claimed. Consequently, the suit of the plaintiffs was dismissed.

4. Although the ultimate decision in the suit was in favour of contesting defendants 4 to 6, who are respondents 1 to 3 in this Court, the finding recorded by the trial Court on the question of title and possession being against them, they preferred a title appeal in the Court below. The appellate Court in disposing of the appeal came to the conclusion that the plaintiffs were never in possession of the suit property since their vendors were not competent to make the transfer as they had no subsisting title or possession. On the other hand, it held that, the contesting defendants 4 to 6 had been able to establish their case and had also proved their possession in respect of the suit land. The appeal was, therefore, allowed and the judgment and decree of the learned Munsif finding possession with the plaintiffs-appellants was set aside. The dismissal of the suit was naturally maintained.

5. Mr. Lakshman Sharan Sinha appearing on behalf of the plaintiffs-appellants in this Court contends that the appeal in the Court below was not maintainable, as the decision in the suit being wholly in favour of the defendants 4 to 6, no appeal lay to the Court below. Mr. H.K. Banerjee, learned counsel appearing on behalf of respondents I to 3, on the other hand, contends that the appeal in the Court below was maintainable. He further contends that a second appeal does not lie to this Court.

6. Let me first deal with the technical point regarding the non-maintainability of the second appeal. This point, in my opinion, is covered by a Bench decision of this Court in Ram Ratan Pd. V/s. Banarsi Lal, AIR 1930 Pat 280. This decision, of course, pre-supposes that the appeal in the Court below was not maintainable. It is, therefore, necessary to consider the main question, namely, whether the contesting respondents were entitled to prefer an appeal in the Court below.

7. Learned counsel for the appellants relies on the decision reported in Tan-sukh Rai V/s. Gopal Mahto, AIR 1929 Pat 586, which decision itself relies on two Privy Council decisions mentioned in the case. He also relies on the decision in Markanda Mahapatra V/s. Varada Kameswau Rao, AIR 1949 Pat 197 and some other decisions which I need not mention here.

8. Mr. Banerjee for the respondents 1 to 3, on the other hand, places reliance on the cases