ORDER : RAKESH MOHAN PANDEY, J. 1) This appeal was admitted on 22.12.2005 and the following substantial question of law was framed:- “Whether the learned lower appellate Court was justified in holding that Dukhi Ram is the legitimate son of Samay Lal by drawing presumption under Section 112 of the Evidence Act particularly in the light of the established fact that the mother of Dukhi Ram did not remain unmarried at the time of giving birth to Dukhi Ram?” 2) Later on, an additional substantial question of law was formulated on 30.09.2024 as under:- “Whether the first appeal preferred by the defendants under Section 96 of the CPC before the learned Court below was maintainable particularly when no judgment and decree was passed against them?” 3) The appellant/plaintiff filed a civil suit for declaration of title and permanent injunction over the suit property described in Schedule - A to E of the plaint inter-alia on the ground that he is the sole legal heir of Late Samelal. The total area of suit land is 10.14 acres. It is further pleaded that late Dukhiram was born 300 days after the death of his father, namely, Late Samelal, therefore, legally, he was not the biological son of Late Samelal and he has no right over the suit property. 4) In the written statement, the defendants pleaded that at the time of the death of Late Samelal, the mother of Late Dukhi Bai, namely, Smt. Dulari Bai was pregnant and the late Dukhiram was in her womb. 5) The learned trial Court framed issues and held that the plaintiff is not the sole successor and owner of the suit property. Late Dukhiram/original defendant No.1 is not a biological son of Late Samelal, and the suit was also found barred by the limitation. Other issues were not found proved, and thus, the suit was dismissed. 6) The defendants who are legal heirs of the late Dukhiram filed a civil appeal according to the provisions of Section 96 of the CPC before the learned First Additional District Judge (FTC) Kabirdham, which was registered as Appeal No. 14A/2004. 7) The defendants raised grounds that Samelal died on 27.03.1956 and at that time late Dukhiram was in the womb of Dularibai therefore, Late Samelal was his biological father. 7) The defendants raised grounds that Samelal died on 27.03.1956 and at that time late Dukhiram was in the womb of Dularibai therefore, Late Samelal was his biological father. 8) It is also stated in the memo of appeal that witnesses, namely, Radhabai (DW/2), Gulababai (DW/3), Milapabai (DW/4) and Dularibai (DW/5), have admitted the fact that at the time of the death of Late Samelal, Dukhiram was in the womb of Dularibai. Learned First Appellate Court after taking into consideration the oral and documentary evidence held that Late Dukhiram was the biological son of Late Samelal, and therefore, he has right over the suit property. 9) Mr. B. P. Sharma, learned counsel appearing for the appellant/plaintiff would submit that late Samelal died on 27.03.1956, whereas the date of birth of Late Dukhiram is 09.01.1957. He would further submit that Late Dukhiram was born 293 days after the death of Late Samelal and according to the provisions of Section 112 of the Evidence Act, he cannot be held as biological son of Late Samelal. He would also submit that the defendants failed to prove the fact that Late Dukhiram was born within 280 days from the date of death of Late Samelal and thus, the learned first appellate Court committed an error of law in deciding this issue. 10) Mr. Sharma would argue that the suit was filed by the plaintiff and the same was dismissed by the learned trial Court. He would further argue that no counter claim was filed by the defendants, in spite of this fact, the defendants filed the first appeal according to the provisions of Section 96 of the CPC before the learned First Appellate Court whereas there was no judgment and decree against the defendants, therefore, the appeal preferred by the defendants was not maintainable at all and the judgment and decree passed by the learned first appellate Court is a nullity. In support thereof, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Hardevinder Singh v. Paramjit Singh and others, (2013) 9 SCC 261 and Banarsi and others v. Ram Phal, (2003) 9 SCC 606 . 11) On the other hand, Mr. Dharmesh Srivastava, the learned counsel appearing for respondents No.1 to 6 would oppose. 11) On the other hand, Mr. Dharmesh Srivastava, the learned counsel appearing for respondents No.1 to 6 would oppose. He would submit that there was a finding against the original defendant - No.1 Dukhiram with regard to his status; therefore, the appeal was maintainable. He would further submit that the learned trial Court has held that Late Dukhiram was not a biological son of Late Samelal and the finding was contrary to the evidence led by the defendants’ witnesses, therefore, the appeal preferred by the defendants was maintainable. He would also submit that there may be a margin of 10-15 days in the birth of a child and 280 days cannot be said as a straight jacket formula to assess the legitimacy. He would state that the appeal deserves to be dismissed. 12) Mr. Pranjal Shukla, learned counsel appearing for the State would support the judgment and decree passed by the learned Courts below. 13) I have heard learned counsel for the parties and perused the documents placed on the record with utmost circumspection. 14) This Court proceeds to decide the issue which was formulated later on i.e. on 30.09.2024. 15) The civil suit was filed by the plaintiff claiming therein the following relief(s):- 16) The plaintiff- Bodhi Ram exhibited documents and examined witnesses. The defendants also filed written statements, exhibited documents, and examined witnesses. The learned trial Court framed various issues and ultimately dismissed the suit filed by the plaintiff. There was a finding recorded against the original defendant No.1, namely, Late Dukhiram to the effect that he was not a biological son of Late Samelal, whereas other issues were decided against the plaintiff. The first appeal was preferred by the legal representatives of Late Dukhiram before the learned first appellate Court. 17) It is well well-settled principle of law that an appeal can be preferred from the original decree or from every decree passed in the appeal. The person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. It is also well settled that both Sections 96 and 100 of the CPC provide for an appeal against a decree and not against a judgment. 18) In the matter of Banarsi (supra), the Hon’ble Supreme Court in para 8 held as under:- “8. It is also well settled that both Sections 96 and 100 of the CPC provide for an appeal against a decree and not against a judgment. 18) In the matter of Banarsi (supra), the Hon’ble Supreme Court in para 8 held as under:- “8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person musts be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand v. Gopal Lal reported in AIR 1967 SC 1470 ) Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (1970) 3 SCC 573 ; and Ganga Bai v. Vijay Kumar (1974) 2 SCC 393 ). No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.” 19) In the matter of Hardevinder Singh (supra), the Hon’ble Supreme Court while dealing with Sections 96 and 100 of the CPC in para-17 and 22 to 25 held as under:- “17. Presently, it is apt to note that Sections 96 and 100 of the Code make provisions for preferring an appeal from any original appeal or from a decree in an appeal respectively. The aforesaid provisions do not enumerate the categories of persons who can file an appeal. If a judgment and decree prejudicially affects a person, needless to emphasize, he can prefer an appeal. In this context, a passage from Smt. Jatan Kanwar Golcha v. M/s. Golcha Properties Private Ltd. [ (1970) 3 SCC 573 ] is worth noting: - “It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate Court and such leave should be granted if he would be prejudicially affected by the judgment.” 22. At this juncture, we may usefully reproduce a passage from Banarsi and others (supra) wherein it has been stated thus: - “Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand v. Gopal Lal[7], Jatan Kumar Golcha v. Golcha Properties (P) Ltd. (supra) and Ganga Bai v. Vijay Kumar (supra).) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.” 23. Though the High Court has referred to the said pronouncement, yet it has not applied the ratio correctly to the facts. This Court has clearly stated that if a person is prejudicially or adversely affected by the decree, he can maintain an appeal. In the present case, as we find, the plaintiff claiming to be a co-sharer filed the suit and challenged the will. The defendant No. 5, the brother of the plaintiff, supported his case. In an appeal at the instance of the defendant Nos. 1 to 4, the judgment and decree was overturned. The plaintiff entered into a settlement with the contesting defendants who had preferred the appeal. Such a decree, we are disposed to think, prejudicially affects the defendant No. 5 and, therefore, he could have preferred an appeal. It is worthy to note that the grievance pertained to the nature and character of the property and the trial court had decreed the suit. He stood benefited by such a decree. The same having been unsettled, the benefit accrued in his favour became extinct. It needs no special emphasis to state that he had suffered a legal injury by virtue of the over turning of the decree. His legal right has been affected. 24. He stood benefited by such a decree. The same having been unsettled, the benefit accrued in his favour became extinct. It needs no special emphasis to state that he had suffered a legal injury by virtue of the over turning of the decree. His legal right has been affected. 24. In this context, we may refer to a recent pronouncement in Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra & ors.[ (2013) 4 SCC 465 ] wherein this Court has held thus: - “A “legal right”, means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized. (Vide: Shanti Kumar R. Chanji v. Home Insurance Co. of New York, AIR 1974 SC 1719 ; and State of Rajasthan & Ors. v. Union of India & ors., AIR 1977 SC 1361 ).” 25. Though the said judgment was delivered in a different context, yet it is applicable to the obtaining factual matrix regard being had to the conception of legal injury. Thus, indubitably, the present appellant was a person aggrieved and was prejudicially affected by the decree and, hence, the appeal could not have been thrown overboard treating as not maintainable.” 20) In the present case, the civil suit filed by the plaintiff was dismissed. There was no decree against the original defendant or defendants; therefore, the appeal preferred by the original defendant or defendants was not maintainable at all. 21) Taking into consideration the judgments cited above, in the opinion of this Court, the appeal preferred by the defendant/s was not maintainable; thus, the substantial question of law formulated on 30.09.2024 is decided in favour of the plaintiff and against defendants No.1 to 6. 22) Section 112 of the Indian Evidence Act, 1872 reads as under:- “112. Birth during marriage, conclusive proof of legitimacy. 22) Section 112 of the Indian Evidence Act, 1872 reads as under:- “112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.” 23) From a bare perusal of the death certificate (Ex.P/10) of Late Samelal, it is apparent that he died on 27.03.1956, whereas, the date of birth of late Dukhiram is 13.01.1957 (Ex.D/1). Admittedly, late Dukhiram was born 292 days after the date of death of Late Samelal, therefore, it cannot be presumed that he was the biological son of Late Samelal and thus the defendants failed to prove this fact. Legal presumption cannot be rebutted by adducing oral evidence therefore the evidence of defendants’ witnesses will not come to rescue the burden of defendants. Therefore, the substantial question of law framed on 22.12.2005 is also decided against the defendants and in favour of the plaintiff. Accordingly, this appeal succeeds. The plaintiff is declared the exclusive owner of the suit property. 24) In the conclusion, this appeal is allowed. No order as to cost. 25) A decree be drawn accordingly.