Ajay Mohan Goel, J (Oral): By way of this appeal, the appellant/defendant No. 1 has challenged the judgment and decree passed by the Court of learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in Civil Appeal No. 53-J/05/04, dated 22.08.2006, vide which learned appellate Court dismissed the appeal filed by the present appellant against the findings returned by the learned Civil Judge (Junior Division), Jawali in Civil Suit No. 202/03/95, dated 09.12.2003, vide which learned trial Court while dismissing the suit so filed by the plaintiffs decided Issue No. 4, i.e. “whether ‘Will’ dated 30.08.1995 was legally and validly executed by Rattni Devi against the defendants. 2. This appeal was admitted on 29.12.2008 on the following substantial questions of law: “1. Whether both the Courts below have committed grave error of law in holding the Will dated 18.08.1995 void which otherwise is fully proved to have been executed by the testatrix in accordance with the provisions of Indian Succession Act and also has been proved as required by Section 63 of the Indian Evidence Act? 2. Whether the learned Court below failed to appreciate true and correct principle of law enunciated in Section 63 of Indian Succession Act and Section 68 of Indian Evidence Act in order to give its judicious findings upon the validity of the Will dated 30.08.1995? 3. When this case was taken up for arguments, Mr. V.S. Rathore, learned counsel for respondents No. 1 and 2 submitted that before this Court enters upon adjudication on the substantial questions of law on which this appeal was admitted, this Court may first decide as to whether the appeal which was filed by the present appellant before the first appellate Court was in fact maintainable, as no decree was passed by the learned trial Court against the defendants and whether this appeal is also therefore maintainable? 4. In this background, at the time of hearing, the following substantial question of law was framed: “Whether in the advent of a Civil Suit having been dismissed and no decree having been passed either in favour of plaintiff or against the defendant, can the defendant file an appeal on findings returned by the learned trial Court on an issue against him? 5. 5. I have heard learned counsel for the parties on the said newly framed substantial question of law and have also gone through the records as well as the judgments passed by both the learned Courts below. 6. Records demonstrate that suit before the learned trial Court was filed by Piar Singh and Fauja Singh, sons of Tota Ram, who were plaintiffs therein for declaration to the effect that plaintiffs and proforma defendants were entitled to inherit the property of their mother deceased Ratni Devi vide registered Will dated 18.06.1993 qua the suit land and that subsequent Will executed by deceased Ratni Devi in favour of her grand son and defendant No. 1, dated 30.08.1995, was wrong, null and void and a result of fraud, undue influence and misrepresentation etc. Decree for permanent injunction restraining the defendants from getting the mutation attested and accepted on the basis of said Will in their favour and for restraining them from alienating and dispossessing the plaintiffs and proforma defendants from the suit land was also prayed for. 7. The suit so filed by the plaintiffs was inter alia contested by defendant No. 1 on the ground that Ratni Devi had executed a Will dated 30.08.1995 in his favour and the same was a valid Will. 8. On the basis of pleadings of the parties, learned trial Court framed the following issues: “1. Whether deceased Rattni Devi executed a legal & valid ‘Will’ dated 18.06.1993, as alleged? OPP. 2. If issue No. 1 is proved, whether the plaintiffs alongwith proforma defendant No.4 are entitled to inherit the suit land? OPP. 3. Whether the plaintiffs are entitled for a decree of injunction? OPP. 4. Whether ‘Will’ dated 30.08.1995 was legally and validly executed by Rattni Devi, if so, its effect? OPD. 5. Relief. 9. On the basis of evidence adduced by the respective parties in support of their respective claims, the following findings were returned by learned trial Court on the issues so framed: “Issue No. 1: No. Issue No. 2: No. Issue No. 3: No. Issue No. 4: No. Relief: The suit is dismissed as per operative part of the judgment. 10. Suit filed by the plaintiffs was dismissed by the learned trial Court and following decree was prepared by the learned trial Court: “the suit of the plaintiff is dismissed. 10. Suit filed by the plaintiffs was dismissed by the learned trial Court and following decree was prepared by the learned trial Court: “the suit of the plaintiff is dismissed. The plaintiff, defendants No. 2 to 4 are entitled for the property of Rattni Devi in equal share being her Class-I heirs and the Wills dated 18.6.03 and 30.8.95 have no effect on the rights of the plaintiff, defendants No. 2,3 & 4. However, the defendant No. 1 during the life time of his father has no right on the property of Rattni Devi in any manner, or on the basis of Will dated 30.8.95. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs.” 11. Thus, learned trial Court dismissed the suit so filed by the plaintiffs and did not pass any decree in favour of the plaintiffs or against defendant No. 1. 12. Feeling aggrieved by the findings returned by the learned trial Court on Issue No. 4, which was ‘whether ‘Will’ dated 30.08.1995 was legally and validly executed by Rattni Devi’ and which was decided by learned trial Court against the defendants, defendant No. 1 filed an appeal before the 1st appellate Court. The appeal so filed by defendant No. 1 was adjudicated by learned 1st appellate Court on merit and it reiterated the findings so returned on the said issue by the learned trial Court. 13. Feeling aggrieved by the judgment so passed by the learned 1st appellate Court, defendant No. 1 has filed the present appeal. 14. Mr. V.S. Rathore, learned counsel appearing for the respondents has argued that in view of the fact that the Civil Suit filed by the plaintiffs was dismissed and no decree was passed against defendant No. 1, i.e. the present appellant, the appeal which was filed by him before the learned first appellate Court against findings returned by the learned trial Court on Issue No. 4, was not maintainable. In support of his contention, Mr. Rathore has relied upon the judgment of this Court passed in Sher Chand and another Vs. Pritam Chand 1997 (1) Sim. L.C.300 as well as judgment of the Hon’ble Supreme Court in Krishanananda Vs. Kattu Siva Ashram and others (2007) 10 Supreme Court Cases 185. 15. According to Mr. In support of his contention, Mr. Rathore has relied upon the judgment of this Court passed in Sher Chand and another Vs. Pritam Chand 1997 (1) Sim. L.C.300 as well as judgment of the Hon’ble Supreme Court in Krishanananda Vs. Kattu Siva Ashram and others (2007) 10 Supreme Court Cases 185. 15. According to Mr. Rathore, until and unless there was a decree either passed in favour of the plaintiffs and/or against the defendants, no appeal was maintainable on behalf of the defendant, as in the absence of there being any decree either in favour of the plaintiffs or against the defendant, any findings which were returned while adjudicating issues by the learned trial Court were not binding upon the party against whom a decree has not been passed. Mr. Rathore further submitted that an appeal is not filed against the findings returned by the learned Court but it is filed against the decree passed by the learned Court. 16. A perusal of the judgment passed by this Court in Sher Chand’s case (supra) demonstrates that a similar issue was raised in the said appeal also and therein this Court has held that an appeal is not maintainable by a party on a finding which is returned against it in a suit in which otherwise no decree has been passed against it, unless the same operates as res judicata. This Court in para 6 of the said judgment has held: “6. In Madras Corporation Vs. P.R. Ramachandriah, AIR 1977 Mad. 25 , a Division Bench of the said Court held that when a party is not aggrieved by a decree, it was not competent to appeal against the decree on the ground that an issue is found against him. Similarly, in K.L. Bapuji V. State, AIR 1977 AP 427 , a Division Bench of Andhra Pradesh High Court has also taken the similar view 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 findings recorded on the controversy between the defendants themselves would not be res judicata. No appeal in the aforesaid circumstances, when the entire decree is in favour of the defendants, would lie against the findings at the instance of the defendants aggrieved by it. No appeal in the aforesaid circumstances, when the entire decree is in favour of the defendants, would lie against the findings at the instance of the defendants aggrieved by it. To the similar effect is a Full Bench judgment of Patna High Court reported in Arjun Singh Vs. T.D. Ghosh, AIR 1974 Pat. 1 , where amongst other things, it was observed that appeal would only be maintainable if the findings on the issues decided against the party appealing would operate as res judicata. Since the findings recorded against the appellants on issues in the suit out of which this appeal has arisen do operate as res judicata, therefore, this judgment squarely covers the case of the plaintiff regarding the maintainability of the appeal. No decision to the contrary has been brought to the notice of this Court by the learned Counsel for the appellants. 17. Hon’ble Supreme Court in Krishnananda’s case (supra) has held that appeal filed at the instance of appellant was not maintainable against certain findings which might be relevant for the purpose of determination of an issue by and between the appellant and the original plaintiff when no decree against the appellant was passed. 18. The Hon’ble Supreme Court in Ramesh Chandra Vs. Shiv Charan Dass and others 1990 (Supp) Supreme Court Cases 633 has held that one of the tests to ascertain if a finding operates as res judicata as if the party aggrieved could challenge it. Since the dismissal of appeal or the appellate decree was not against defendants 2 and 3 they could not challenge it by way of appeal. 19. A Full Bench of Patna High Court in Arjun Singh and others Vs. Tara Das Ghosh and others AIR 1974 Patna 1 has held that it is well settled that a party against whom a finding has been recorded has got a right of appeal, even though the ultimate decision may be in his favour if the finding can operate as res judicata in a subsequent suit or proceeding; if, however, it cannot operate as res judicata then such a party has no right of appeal. 20. Therefore, it is evident from the case law cited above that in the absence of there being a decree against a party, it cannot file an appeal, even if an issue has been decided by the Court while adjudicating the case against it. 20. Therefore, it is evident from the case law cited above that in the absence of there being a decree against a party, it cannot file an appeal, even if an issue has been decided by the Court while adjudicating the case against it. This is for the reason that in the absence of that finding resulting in decree against the party concerned, the same does not operate as res judicata vis-à-vis party against whom the said finding has been returned. 21. Confronted with this situation, Mr. Chauhan, learned counsel for the appellant submits that though it is a matter of record that no decree has been passed by the learned trial Court either in favour of the plaintiffs or against the present appellant, but still on record there are findings returned against the present appellant as far as Issue No. 4 is concerned and same stand incorporated in the decree also. 22. In my considered view, the findings so returned by the learned trial Court while deciding Issue No. 4 are nothing but finding which have been returned as the same were relevant for determination of issues intra the plaintiffs and the defendants and in view of the fact that neither any decree has been passed in favour of the plaintiffs nor any judgment has been passed against defendant No. 1, the findings so returned do not operate as res judicata as far as said issue is concerned qua the present appellant, even though the same find mention in the decree, which in my considered view was avoidable, as in the absence of a decree against defendant, he has no right to file an appeal. 23. Therefore, it is clarified that findings returned against the present appellant by the learned trial Court while deciding Issue No. 4 which find mention in decree also shall not act as res judicata against the appellant. 24. Accordingly, I hold that the appeal which was filed by the present appellant against the judgment and decree passed by the learned trial Court was in fact not maintainable and neither is this appeal and substantial questions of law earlier framed on 29.12.2008 therefore do not call for any adjudication. Newly framed substantial question of law is answered accordingly. 25. Accordingly, I hold that the appeal which was filed by the present appellant against the judgment and decree passed by the learned trial Court was in fact not maintainable and neither is this appeal and substantial questions of law earlier framed on 29.12.2008 therefore do not call for any adjudication. Newly framed substantial question of law is answered accordingly. 25. This appeal is thus dismissed as judgment and decree passed by the learned first appellate Court in Civil Appeal No. 53-J/05/04, dated 22.08.2006 against which the present appeal has been preferred are non est as in fact appeal filed before the first appellate Court was not maintainable. However, it is clarified that the findings returned against the present appellant by the learned trial Court while deciding Issue No. 4, which also find mention in the decree so passed by the learned trial Court shall not operate as res judicata. Miscellaneous applications, if any, stand disposed of. No order as to costs.