Appeal may lie against a finding provided that it would 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.”

IN THE HIGH COURT OF BOMBAY AT GOA
SECOND APPEAL NO. 64 OF 2003

Rama Shanu Dessai, Major,
VERSUS

Shri Joaquim Vicente )
Coutinho 
CORAM
: U. V. BAKRE, J.

PRONOUNCED ON: 2nd March, 2012
Citation;2012(7)ALL M R329



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.
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 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)
14.
For costs.
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. 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. 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. 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
11
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.
U.V. BAKRE,J.

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