SA/121/2011 of Shaik Pentu Saheb Vs Pathan Hussaini on 30 December 2011

JUDGMENT:

The second appeal is by defendants 5 and 9 in O.S.No.200 of1996 and the appellants in A.S.No.36 of 2001.

This appeal is directed against the judgment and decree dated04.06.2007 in A.S.No.36 of 2001on the file of the Court of the SeniorCivil Judge, Bapatla, whereby the appeal was dismissed and thejudgment and decree of I Additional Junior Civil Judge, Bapatla, dated02.02.2001 allowing O.S.No.200 of 1996 and decreeing partition of thesuit schedule properties was confirmed.

The suit was filed for partition of the suit schedule property into64 equal shares and for awarding 7/64[th] share to the plaintiff. Theplaintiff and defendants 2 to 4 are the daughters of the first defendant.Defendants 5 and 6 are the sons; defendants 7 and 8 are stated to bepurchasers from defendants 5 and 6 of a part of the suit scheduleproperty under a registered sale deed dated 20.09.1996; and 9[th]defendant, who got himself impleaded into the suit, claimed to havepurchased Ac.0.08 cents (out of the total extent of Ac.0.28 ½ cents ofthe suit schedule property) from the father and paternal uncle of theplaintiff and to have been in continuous possession of the said extentof land, after constructing a house therein.

The trial Court found rightly that there was no evidencewhatsoever in support of 9[th] defendant’s claim that he is the owner ofthe extent of Ac.0.08 cents claimed to have been purchased from thefather and paternal uncle of the first respondent/plaintiff under anagreement of sale. The trial Court also found that the testimony ofD.W.8, a Junior Assistant of Bapatla Municipality through whomExs.X.1 to X.3 (entries in the property tax assessment registers of the year 1960-61; 1993-94 and 1998-99) were marked and the evidence ofthese documents does not even approximately constitute proof ofacquisition of title by the 9[th] defendant of Acs.0.08 cents, by adversepossession. Accordingly the suit was decreed.

The lower appellate Court concurred with the findings of the trialCourt and held that there was no proof to support the 9[th] defendant’sclaim of having purchased Ac.0.08 cents warranting exclusion of thisextent from the suit schedule property.

Learned counsel for the appellants strenuously urged that thejudgment of the lower appellate Court is vitiated by a substantial errorsince the Court below failed to independently analyse the evidence onrecord i.e., oral testimony marshalled on behalf of the defendantsincluding defendants 5, 6 and 9; of D.W.8, the Bapatla MunicipalEmployee and Exs.X.1 to X.3. It is also asserted on behalf of theappellants herein that the material evidence, namely, the testimony ofD.Ws.3 to 8 read with Exs.X.1 to X.5 were not analysed and discussedin the appellate judgment and therefore, this error warrants admissionof the second appeal for adjudication.

From the facts and circumstances of the case, it is apparent that9[th] defendant in O.S.No.200 of 1996 – 2[nd] appellant herein did notclaim at any point to being the owner ofthe suit schedule propertyalong with the plaintiff and other defendants in the suit. He need havein fact not impleaded himself as a defendant. He invited himself to thelis and got himself impleaded in the year 2000 and sought exclusion ofan extent of Ac.0.08 cents from the process of partition, asserting thathe had purchased the property under an agreement of sale executedby the father of the plaintiff and his brother (paternal uncle of theplaintiff). The instrument, on the basis of which alienation in favour of9[th] defendant of the extent of Ac.0.08 cents was made, has not seen

the light of the day and was not marked in evidence. There is also noassertion as to whether it is a registered instrument. With regard to hisambiguous alternative claim of being in continuous possession of theproperty and the incoherent plea of adverse possession also there isno evidence to substantiate his plea of continuous and adversepossession for the statutory period in respect of any part of the totalextent of Ac.0.08 cents claimed by 9[th] defendant. None of the oraltestimonies on record including the testimony of D.W.8 nor Exs.X.1 toX.3 support this claim of adverse possession of 9[th] defendant in themanner required by law.

In the above circumstances, the second appeal is required to beadmitted only to consider whether the lower appellate Court did notproceed to draft the judgment with the technical exactitude required bylaw. Substantial errors of law required to be considered by this Court ina second appeal, under Section 100 of the Code of Civil Proceduremust have real consequences in terms of material benefits in alitigation. The second appeal cannot be a rubric for mere correctionsof errors in judgment writing.

For the aforesaid reasons, this Court finds no substantial erroreither in the application of law, analysis of evidence or exercise ofdiscretion by the Courts below in recording concurrent findings infavour of the plaintiff, warranting consideration in this second appeal.

The second appeal is accordingly dismissed at the stage ofadmission. There shall be no order as to costs.

______________________________

JUSTICE GODA RAGHURAMDate: 30.12.2011va