Judgment Heard. 2. This Second Appeal has been admitted on the following substantial question:- “Whether, Issue No.4 which casts burden on the Appellants to prove that said structure has been constructed in the Appellants property, was not at all required to be framed, in as much as it was the Plaintiff who had to prove that structure has been constructed in their property, as it is Plaintiff who has to prove his own case? 3. The appellants are the defendants and the respondents are the plaintiffs who had filed the Special Civil Suit No. 111/80/A praying therein to direct the defendants to demolish the illegal construction and to restrain them by perpetual injunction from constructing or carrying on with the construction of any further work in the suit property and from entering upon or using the said shed for any purpose whatsoever. The learned Civil Judge Senior Division, Margao (Trial Judge), by Judgment and Decree dated 24/11/1999, dismissed the said suit. 4. The plaintiffs had filed the said suit on the ground that the defendants had encroached upon the property of the plaintiffs by constructing the hut of palm leaves at northern corner of the suit property in August, 1979 without obtaining consent of the plaintiff. The defendants in their written statement had averred that they had not encroached into the plaintiff's property. The defendants had specifically pleaded that the said structure lies in their own property. 5. Altogether six issues were framed by the learned Trial Judge and issue no.4 read as under :- “Issue No.4:-Whether the defendants prove that the land on which the said structure was made belongs to them?” 6. The learned Trial Judge had answered the said issue no.4 in the negative. 7. Aggrieved by the said finding of the Trial Judge on issue no.4, the defendants filed Regular Civil Appeal No.6 of 2000 before the learned First Additional District Judge, South Goa, Margao (First Appellate Court). In the said appeal, the First Appellate Court framed the point for determination which is as follows : “Point No.1 : Whether the appellants proved that suit structure is constructed in his land? By Judgment and Order dated 19/04/2003, the learned First Appellate Court has answered the said point in the negative and consequently has dismissed the appeal. 8. Aggrieved by the dismissal of the First Appeal, the defendants have approached this Court with the present Second Appeal. By Judgment and Order dated 19/04/2003, the learned First Appellate Court has answered the said point in the negative and consequently has dismissed the appeal. 8. Aggrieved by the dismissal of the First Appeal, the defendants have approached this Court with the present Second Appeal. 9. The learned advocate Shri D. J. Pangam, argued on behalf of the defendants whereas learned advocate Shri S. S. Kakodkar, argued on behalf of the plaintiffs. 10. Shri D. J. Pangam, learned counsel for the defendants, argued that in the said suit which was filed by the plaintiff for demolition of the structure on the ground that the defendants had constructed the same in the property belonging to the plaintiff, the issue no.4 as framed was not at all required. He submits that in the present appeal, the defendants would not press for reversal of the said finding on the issue no. 4 but what they want is that the said finding should not operate as res judicata. Learned counsel for the defendants has relied upon “Smt. Ganga Bai V/s. Vijay Kumar and others” [(1974) 2SCC 393] 11. Per contra, Shri S. S. Kakodkar, learned counsel for the plaintiffs, invited my attention to the Plaint wherein it is pleaded that the defendants, who have no right to the suit property, have constructed a hut with thatched palm roof in the northern corner of the suit property without obtaining permission from the plaintiffs. He then pointed out to paragraph 9 of the Written Statement wherein the defendants have specifically pleaded that the said hut has been constructed within the property of the defendants and that the plaintiffs have nothing to do with the same. According to Shri Kakodkar, based on the said pleadings of the parties, the issue no.4 was framed. He argued that the defendants never claimed before the Trial Judge that the said issue no. 4 did not arise in the suit. The learned counsel further pointed out that the R.C.A. No. 6 of 2000 was filed by the defendants specifically challenging the finding of the Trial Judge on issue no.4 and nothing else. He argued that in the said First Appeal also the learned advocate for the defendants did not contend that the said issue no.4 did not arise at all in the suit. He argued that in the said First Appeal also the learned advocate for the defendants did not contend that the said issue no.4 did not arise at all in the suit. He pointed out that for the first time in this Second Appeal the defendants have contended that the said issue no.4 framed by the Trial Judge was not at all required to be framed. According to Shri Kakodkar, if certain point was not raised before the First Appellate Court, then there is no chance for raising it in the second appeal. He therefore urged that the appeal is liable to be dismissed. 12. Perused the entire material on record. 13. The prayers in the present Second Appeal are as follows:- (A) This Hon'ble Court be pleased to call for the records and proceedings from the Court of Ist Additional District Judge, South Goa, at Margao in Regular Civil Appeal No. 6/2000 and after perusing the same, to quash and set aside the impugned Judgment and Decree dated 19/04/2003, to the extent Issue No. 4 is answered in negative; (B) This Hon'ble Court be pleased to answer Issue No. 4 in affirmative; (C) For such other and further reliefs that this Hon'ble Court deem fit and proper; (D) For costs. 14. In terms of Section 96(1) of the Code of Civil Procedure (CPC), an appeal lies from original decree. Section 100 of CPC provides for second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1) of CPC provides for appeals against orders of the type mentioned therein and says that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie from no other orders. Clause (i) of Section 104(1) of CPC provides for an appeal against any orders made under rules from which an appeal is expressly allowed by rules. Order 43, Rule 1 of CPC, which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof. Section 105(1) of CPC lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction. Section 105(1) of CPC lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction. Thus, no appeal lies from a mere finding since the CPC does not provide for such appeal. The Special Suit No. 111/80/A was dismissed by the trial judge. Hence, the defendants, not being aggrieved by the decree, did not file the First Appeal against the decree. In view of the above, the learned First Appellate Court ought not to have entertained the R.C.A. No. 6 of 2000 which was admittedly filed against the finding of the Trial Judge on issue no.4. Since the said R.C.A. No. 6 of 2000 was not maintainable, the present Second Appeal is also not maintainable. 15. In the case of “Smt. Ganga Bai”(supra), the Hon'ble Supreme Court, in paragraph 25 thereof, has observed as follows:- “The position here is similar to that in the Calcutta case. The trial court decreed the mortgagee's suit only as against defendant 1, the father, and directed the sale of his one-half interest in the mortgaged property on the ground that part of the consideration for the mortgage was not supported by legal necessity, the remaining part of the consideration was tainted with immorality and therefore the mortgage was not binding on the interest of the sons, Defendants No.2 and No. 3. Whether the partition between the father and sons was sham or real had no impact on the judgment of the trial court and made no material difference to the decree passed by it. The finding recorded by the trial court that the partition was a colourable transaction was unnecessary for the decision of the suit because even if the court were to find that the partition was genuine, the mortgage would only have bound the interest of the father as the debt was not of a character which, under the Hindu law, would bind the interest of the sons. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. There is no substance in the submission made on behalf of the sons that if the partition was held to be genuine, the property would have been wholly freed from the mortgage encumbrance. The validity or the binding nature of an alienation cannot depend on a partition effected after the alienation; or else, a sale or a mortgage effected by the Karta of a joint Hindu family can easily be avoided by effecting a partition amongst the members of the joint family. As the matter relating to the partition was not directly and substantially in issue in the suit, the finding that the partition was sham cannot operate as res judicata. Therefore, the appeal filed by defendants No.2 and No.3 against that finding was not maintainable, even on the assumption that the High Court of Calcutta is right in its view that though under the Code there could be no appeal against a finding, yet "on grounds of justice" an appeal may lie against a finding provided that it would operate as res judicata so as to preclude a party aggrieved by the finding from agitating the question covered by the .finding in any other proceeding. It is not necessary here to determine whether the view of the Calcutta High Court is correct.” 16. Thus, the Hon'ble Apex Court has not held in the case supra that an appeal lies against a mere finding. If the said point “whether the defendants have constructed the said hut within their own property” was proved by the defendants, then, on this ground also the trial judge would have dismissed the plaintiffs' suit. Hence, it cannot be said that the said issue no. 4 was not at all required. If the said point was not directly and substantially in issue at all, then the finding on said issue no. 4 as framed in the suit would not operate as res judicata and in that event, the appellants had no reason to file the First Appeal. At least, in this second appeal, the appellants could have prayed for leave to withdraw the first appeal, if it was permissible to do so. 17. There are concurrent findings of the Courts below on the said issue no.4. The learned Advocate Shri D. J. Pangam has fairly admitted that the defendants have no case for reversal of the said finding. 17. There are concurrent findings of the Courts below on the said issue no.4. The learned Advocate Shri D. J. Pangam has fairly admitted that the defendants have no case for reversal of the said finding. The learned counsel argued that in the interest of justice the defendants want a positive finding on the substantial question that has been framed in this appeal so that the finding on issue no.4 does not operate as res judicata. As has been rightly argued by Shri. S. S. Kakodkar, learned counsel for the plaintiff, since the point that the issue no.4 as framed in the suit was not at all required was neither raised before the Trial Court nor was raised before the First Appellate Court, there is no chance for the defendants to raise the same in this Second Appeal. 18. In view of the discussion supra, I am satisfied that no substantial question of law and in particular the question on which the present appeal has been admitted, arises in the present appeal. 19. Hence, the Second Appeal is dismissed, however, with no order as to costs.