Case Note & Summary
The appellant-plaintiff filed a second appeal against the judgment and order of the Additional District Judge, Panaji dated 30/08/2002, which partly allowed the appeal from the trial court. The dispute concerned property bearing survey nos. 1/8, 1/9 and 2/14. The lower appellate court had declared that defendant no.1 and other heirs of Krishna Vishnu Hoble were co-owners of the property 'Thorle Bagaita' bearing Land Registration No. 4276. The appellant did not challenge the finding that defendant no.1 had a 1/6th share in the suit property, but objected to the recording of Land Registration No. 4276 in the decree, arguing that this number did not correspond to the suit survey numbers. The High Court framed two substantial questions of law: whether the First Appellate Court erred in recording Land Registration No. 4276 in the decree, and whether the decree should be modified. The appellant's counsel submitted that the Land Registration Number was not in issue and should not have been included. The respondent's counsel argued that the appellant had not denied the averment in the written statement that the property was registered under Land Registration No. 4276. The High Court noted that the suit was only in respect of survey nos. 1/8, 1/9 and 2/14, and the Land Registration Number was not a subject matter of the suit. Therefore, the observation in para 17 of the lower appellate court's judgment was unnecessary and should not form part of the decree. The High Court allowed the appeal in part, modifying the decree by deleting the reference to Land Registration No. 4276, while confirming the rest of the judgment.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The appellant had no grievance with the operative part of the judgment but objected to the observation in para 17 that the suit property is part of Land Registration No. 4276, which did not correspond to the suit survey numbers. The High Court held that the Land Registration Number was not in issue and should not have been recorded in the decree, and modified the decree accordingly. (Paras 3-5)
Issue of Consideration
Whether the First Appellate Court erred in recording Land Registration No. 4276 in the decree when the suit properties bear survey nos. 1/8, 1/9 and 2/14 only.
Final Decision
The appeal is partly allowed. The judgment and decree of the lower appellate court is modified by deleting the reference to Land Registration No. 4276. The rest of the judgment is confirmed. No order as to costs.
Law Points
- Admission of fact not denied in pleadings
- Scope of second appeal under Section 100 CPC
- Modification of decree to correct clerical error
Case Details
2006 LawText (BOM) (11) 97
Second Appeal No. 7 of 2003
Shri S.D. Lotlikar, Sr. Advocate with Mr. R. Menezes, Advocate for the Appellant; Mr. M.B. D'Costa, Sr. Advocate with Mr. J.A. Lobo, Advocate for Respondent No.1
Shri Deu Krishna Mandrekar
Shri Vishnu Krishna Hoble and Shri Arjun Dharma Kalangutkar (deceased)
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Nature of Litigation
Second appeal against judgment and order of Additional District Judge in a property dispute.
Remedy Sought
Appellant sought modification of the decree to delete reference to Land Registration No. 4276.
Filing Reason
Appellant objected to the observation in para 17 of the lower appellate court's judgment that the suit property is part of Land Registration No. 4276, which did not correspond to the suit survey numbers.
Previous Decisions
Trial court decree was partly set aside by the Additional District Judge, Panaji on 30/08/2002, declaring defendant no.1 and other heirs as co-owners of property bearing Land Registration No. 4276.
Issues
Whether the First Appellate Court erred in recording Land Registration No. 4276 in the decree when the suit properties bear survey nos. 1/8, 1/9 and 2/14 only.
Whether the decree should be modified by deleting the reference to Land Registration No. 4276.
Submissions/Arguments
Appellant's counsel submitted that the Land Registration Number was not in issue and should not have been recorded in the decree.
Respondent's counsel argued that the appellant had not denied the averment in the written statement that the property was registered under Land Registration No. 4276.
Ratio Decidendi
In a second appeal under Section 100 CPC, the court can modify the decree to correct an error where the lower appellate court recorded a Land Registration Number that was not in issue and did not correspond to the suit survey numbers, as such observation was unnecessary and should not form part of the decree.
Judgment Excerpts
Heard the learned Counsel for both the parties. Perused the record.
Therefore, it is clear that the appellant has come with the case that there is no grievance to the findings recorded by the Courts below that defendant no.1 and other heirs of Krishna Vishnu Hoble have 1/6th share in the suit property but have objection to record the Land Registration No. 4276 on the ground that the said Land Registration Number does not correspond with the suit properties which are of survey no. 1/8, 1/9 and 2/14 only.
Procedural History
The appellant-plaintiff filed a suit in the trial court which was decreed. The defendant no.1 appealed to the Additional District Judge, Panaji, who partly allowed the appeal on 30/08/2002, declaring defendant no.1 and other heirs as co-owners of property bearing Land Registration No. 4276. The appellant then filed the present second appeal in the High Court of Bombay at Goa.
Acts & Sections
- Code of Civil Procedure, 1908: Section 100
