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Goli Ammiraju Alias Ammanna Vs. Goli Kondalrayudu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 376 of 1949
Judge
Reported inAIR1951Mad877; (1951)1MLJ682
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 to 153
AppellantGoli Ammiraju Alias Ammanna
RespondentGoli Kondalrayudu and ors.
Appellant AdvocateG. Balaparameshwari Rao, Adv.
Respondent AdvocateC. Rama Rao, Adv.
DispositionAppeal dismissed
Excerpt:
- - 1. this is a rather interesting petn. failed to exercise a jurisdiction lawfully vested in it, by correcting a bona fide error of the comr. ) had undoubtedly the power to rectify any bona fide error not affecting the vested interests of others, like limitation, adverse possession, etc.orderpanchapakesa ayyar, j.1. this is a rather interesting petn. the petnr. was decreed a one-fourth share of vast joint family properties in o. s. no. 292 of 1923, & a comr. who was appointed for that purpose, went & divided the items belonging to the joint family into four shares & delivered to the petnr. his one-fourth share, & to the resps. their one-fourth share & to certain other persons, against whom i. a. no. 2091 of 1947 was dismissed, the remaining two one-fourth shares. the decree in the suit was taken in appeal & second appeal, & got finally settled, but the petnr. to his horror in 1944, nearly 20 years after the decree & delivery of his one-fourth share to him, found that two small items of land, namely, s. no. 181/1, measuring 82 cents, & s. no. 84/3, measuring 31 cents, had.....
Judgment:
ORDER

Panchapakesa Ayyar, J.

1. This is a rather interesting petn. The petnr. was decreed a one-fourth share of vast joint family properties in O. S. No. 292 of 1923, & a Comr. who was appointed for that purpose, went & divided the items belonging to the joint family into four shares & delivered to the petnr. his one-fourth share, & to the resps. their one-fourth share & to certain other persons, against whom I. A. No. 2091 of 1947 was dismissed, the remaining two one-fourth shares. The decree in the suit was taken in appeal & second appeal, & got finally settled, but the petnr. to his horror in 1944, nearly 20 years after the decree & delivery of his one-fourth share to him, found that two small items of land, namely, S. No. 181/1, measuring 82 cents, & S. No. 84/3, measuring 31 cents, had been omitted by the comr. to be divided in spite of their having been included among the properties in the plaint schedule & not disputed by the other parties as not belonging to the family or held by the judgment as not belonging to the family. So, he put in I. A. No. 2091 of 1947 against 16 resps., representing the other three one-fourth shares, Under Section 151 to Section 153, C. P. C., praying the Ct. to appoint a comr. either to divide the omitted two items into four shares & deliver to him his one-fourth share, or to re-value the shares in the B schedule properties of the plaint in O. S. No. 292 of 1923 & work out again the equities & pay him compensation from the other sharers regarding his one fourth share in those two items omitted to be given to him. The Dist. Munsif of Peddapuram, in whose Ct. the I. A. was filed, held that ho had no power to do either of the things prayed for in the I. A. & that, if he chose to do so, the petnr. might move the H. Ct. which had finally settled the matter of partition in the second appeal. Of course, he found that these two items of land were not actually divided by the comr. & the one-fourth share in them given to the petnr. Bub he was of opinion that during the course of 22 years, from 1923 to 1945, it was not probable that the petnr., who was an agriculturist, & the other sharers, who were also agriculturists, wouldnot have discovered the alleged mistake with reasonable diligence, if there was a mistake. He, therefore, rather curiously, held that their negligence would not save limitation for the purpose of the I. A. though no question of limitation would arise in the case of a bona fide error which the comr. & the Ct. & the parties discovered only after the petnr. discovered it, provided there was no damage to the vested rights of any person, party or not party to the suit. Jn the lower Ct. the petnr. as stated above, gave up the resps. representing the other two one-fourth shares leaving only the present resps. having a one-fourth share. As the lower Ct. dismissed the I. A., this petn. has been brought to revise this order on the ground that the lower Ct. failed to exercise a jurisdiction lawfully vested in it, by correcting a bona fide error of the Comr. & the Ct. & the parties in not dividing the above two plots of 82 & 31 cents.

2. One curious thing in this case is that neither the counsel for the petnr. nor the counsel for the resps. was able to tell me as to who was in possession of those two items of land from 1923 to 1945 & as to who is in possession of them now. I agree with Mr. Balaparameswari Rao, for the petnr., that, a bona fide error of the parties, comr. & Ct. in failing to divide two undoubted items of family properties, can be rectified by a Ct. & the decree amended, even after appeal & second appeal, without any danger of limitation provided the vested interests of other persons whether parties to the suit or not, are not affect ed. The mere fact that there has been a first appeal & a second appeal will not stratify the error & make it unrectifiable, without limitation operating in law. Nor will it take away the jurisdiction of the trial Ct. to rectify the error where it is rectifiable within the period of limitation. When a matter is finally settled in first appeal & second appeal, the appellate Cts. become functus officio, & the trial Ct. is the residuary legatee for all future I. As. & other matters of litigation . connected with the suit, provided such matters do not seek to modify the decrees in appeal. So, the trial Ct. (lower Ct.) had undoubtedly the power to rectify any bona fide error not affecting the vested interests of others, like limitation, adverse possession, etc. But, in the present case, it is clear to me, as to the lower Ct. that neither the petnr. nor the resps. are in possession of any portion of the two items from 1923 onwards. The learned counsel for both sides also say that these parties are not in possession. The other resps., owning the ether two one fourth shares & given up in the lower Ct., may or may not have possession of these items or any portion thereof. I do not want to give a finding about the title to these items on possession of them, since more than 22 years have elapsed & the normal period of limitation is only 12 years, & nobody knows who are the person or persons in actual possessionof these items & what their rights & contentions are, & it will be ludicrous to adjudicate on their rights without bringing them on record & hearing them. I am of opinion that a petn. Under Sections 151 to 153, C. P. C. would not lie, in the circumstances of the case, either to rectify an alleged error, or for readjusting the equities, which latter relief was wisely given up by Mr. Balaparameswari Rao as too stale to be pursued further.

3. In the end, therefore, I am of opinion that the only course which the petnr. can be allowed to take is to file a separate suit, if he is so advised, in respect of his alleged one-fourth share in these two items against any persons in possession of these items now, or claiming them, & to abide by the result of such a suit. Sections 151 to 153, C. P. C. are certainly not intended for such enquiries into titles of parties to properties.

4. In the end, therefore, the civil revn. petn. deserves to be & is hereby dismissed, but, in the peculiar circumstances of the case, without costs.


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