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2014 Supreme(AP) 331

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD
L. NARASIMHA REDDY, J.
Muppalla Veeraiah
Versus
Chaganti Jaya Lakshmi
Review SAMP No. 639 of 2014 in Second Appeal No. 1255 of 2010
Decided on: 07-03-2014

Advocates:
Advocate Appeared
For the Petitioner:M. Pitchaiah, Advocate.
For the Respondent:N. Subba Rao, Advocate.

Headnote:

Civil suit - Indian Evidence Act - Sections 68 and 69 - Sake of convenience - Suit schedule property- Application is filed with a prayer to review judgment rendered by this Court in for sake of convenience parties are referred to as arrayed in suit facts that gave rise to filing application - Defendant opposed suit by filing written statement did not dispute relationship pleaded by plaintiff - According to her executed a will in favor and latter in turn executed a deed of gift in her favor - Through its judgment trial Court dismissed suit - Aggrieved by that plaintiff filed an appeal in court of Additional District Judge Guntur and same was dismissed - Counsel for plaintiff submits that trial Court lower Appellate Court and this Court did not take into account important legal aspect whether a Will can be said to have proved unless an attester thereof is examined as provided suit could have been dismissed - If only was proved in accordance with law - He submits that neither an attester was examined nor a person, who is acquainted with the writing or signature of attesters deposed before trial Court - Counsel further submits that unlike other documents document which is required to be attested in law can be acted upon if only attesters are examined and failure to examine attesters would virtually cripple operation of a document of that category - He contends that since a serious error of law has crept into adjudication undertaken at various levels order passed by this Court deserves to be reviewed – Held, Examined by defendant is said to be an attester of deed of rectification in respect of a Gift deed - When no attesters of were examined there is no way that defendant could have resisted partition of property - Counsel for defendant has placed reliance upon judgment of Supreme Court in support of his contention that review can be maintained only when error apparent on face of record and not a mere error in judgment is shown - While dismissing Appeal this court did not at all take into account purport of Act and authoritative precedents which interpreted said provisions - This Court is of view that a valid case is made out for reviewing judgment rendered by this Court - Judgment and decree passed by Court of Additional District Judge Guntur in and that of Additional Junior Civil Judge Guntur in are set aside - A preliminary decree is passed in directing that suit schedule property shall be divided into two equal parts and one part shall be allotted to plaintiff and another part to defendant -Appeal allowed (Paras 21 and 24)

Judgment

L. Narasimha Reddy, J.

This application is filed with a prayer to review the judgment dated 29.10.2011, rendered by this Court in S.A.No.1255 of 2010. The Second Appeal, in turn, arose out of the judgment in O.S.No.486 of 2005, which was filed by the petitioner herein.

2. For the sake of convenience, the parties are referred to as arrayed in the suit. The facts that gave rise to the filing the application are that:

One Smt Pakiramma had two daughters, by name, Ademma and Drowpadamma. The plaintiff is the daughter of one Ademma and the defendant is the daughter of Drowpadamma. Pakiramma died way back on 27.06.1956. The plaintiff filed O.S.No.486 of 2005 in the Court of the II Additional Junior Civil Judge, Guntur for partition of the suit schedule property, originally owned by Pakiramma being Ac.1-00 cents of land in D.No.192/A situated at Gorlavaripalem Village, Pedapakala Mandal, Guntur District. He pleaded that on the death of Pakiramma, the property has devolved equally upon her daughters Ademma and Drowpadamma, and being the children of those two women, the plaintiff and defendant are entitled to equal shares.

3. The defendant opposed the suit by filing written statement. She did not dispute the relationship pleaded by the plaintiff. According to her, Pakiramma executed a Will dated 18.02.1956 in favour of Drowpadamma, and the latter, in turn, executed a deed of gift on 04.09.1985 in her favour.

4. Through its judgment dated 27.02.2009, the trial Court dismissed the suit. Aggrieved by that, the plaintiff filed an appeal in A.S. No.229 of 2009 in the Court of the III Additional District Judge, Guntur and the same was dismissed on 11.03.2010. The plaintiff carried the matter to this Court by filing Second Appeal No.1255 of 2010 and the same was dismissed on 29.10.2011.

5. Sri M. Pitchaiah, learned counsel for the plaintiff submits that the trial Court, lower Appellate Court and this Court did not take into account, the important legal aspect, viz., whether a Will can be said to have proved unless an attestor thereof is examined as provided for under Sections 68 and 69 of the Indian Evidence Act (for short “the Act”). He contends that once the relationship is not disputed and the only defence pleaded by the defendant is Ex.B3- Will, the suit could have been dismissed, if only Ex.B3 was proved in accordance with law. He submits that neither an attestor was examined nor a person, who is acquainted with the writing or signature of the attestors, deposed before the trial Court. Learned counsel further submits that unlike other documents, the document, which is required to be attested in law, can be acted upon, if only the attestors are examined, and failure to examine such attestors, would virtually cripple the operation of a document of that category. He contends that since a serious error of law has crept into the adjudication undertaken at various levels, the order passed by this Court deserves to be reviewed.

6. Sri N.Subba Rao, learned counsel for the defendant, on the other hand, submits that the review is not at all maintainable, and for all practical purposes, the plaintiff has presented the present review petition almost as a further appeal. He submits that Ex.B3 was executed more than half a century ago, and none of the attestors are alive. He submits that the trial Court and the lower appellate Court were convinced that Ex.B3 was proved to the satisfaction of the Court, and that this Court dismissed the Second Appeal on finding that no substantial question of law arises for consideration. He contends that there are no merits in the review petition and the same deserves to be dismissed.

7. This Court is conscious of the fact that the review cannot be a forum, akin to a further appeal, and it is only on a limited and specific grounds recognized in law, that a review can be entertained. The fact that a second view is possible on the same set of facts does not provide a justification for entertaining a review. It























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