SECOND APPEAL STAMP 22380 OF 2018

16th April 2019

Petitioner Counsel: Shri M. V. Amale
Respondent Counsel:

Cases Cited :

JUDGEMENT

1. The defendant in Regular Civil Suit 208 of 2001, who has suffered a decree of partition, is in appeal under section 100 of the Civil Procedure Code (Code).

2. Regular Civil Suit 208 of 2001 is brought by one Smt. Rangu Madavi claiming partition and separate possession of agricultural land left behind by deceased Shri Goma.

3. The plaintiff Smt. Rangu contends that Goma died intestate leaving behind Smt. Rangu and the defendant Smt. Gangu, his daughters, as the legal heirs.

4. The suit is resisted by the defendant Smt. Gangu who denies that the plaintiff Smt. Rangu is her sister.

5. The trial Court decreed the suit and the First Appeal is dismissed.

6. Both the Courts have concurrently recorded a finding of fact that plaintiff Smt. Rangu is the daughter of deceased Goma.

7. The plaintiff examined herself and one Lataru the nephew of Goma i.e. the son of Goma's brother. The evidence of Lataru has gone unchallenged since the defendant did not cross examine him.

8. The findings of fact which recorded by the Courts concurrently is on the basis of evidence on record.

9. It is urged by the learned counsel Shri M.V. Amale that the appellate Court erred in not allowing the application under Order 41 Rule 27 the Code preferred by the defendant. It is further contended that the first appellate Court erred in rejecting the application under order 6 Rule 17 of the Code for amending the memo of appeal.

10. The consideration of the first appellate Court of the two applications is found in paragraph 10 of the judgment. The only reason stated in the application under Order 41 Rule 27 of the Code preferred by the legal heir of original defendant is that the learned counsel for the defendant did not cross-examine PW 2 – Lataru. Interestingly, it is stated in the application that the defendant and the legal heir Hari did realize the omission of the learned counsel to cross-examine Lataru at the stage of the arguments. Regular Civil Appeal 236 of 2003 was pending for more than 14 years when the application under Order 41 Rule 27 was moved. Considering the reason stated in the application for adducing additional evidence, no fault can be found with the view taken by the first appellate Court that the provisions of Order 41 Rule 27 of the Code did not come into play.

11. This Court is not inclined to disturb findings of fact which are concurrently recorded by the Courts below. No question of law much less substantial question of law is involved in the appeal, which is dismissed with no order as to cost.