KONATHAM POTHURAJU Vs. KONATHAM APPAYYA

JUDGEMENT

(1.) THIS Court allowed SAMP No. 2333 of 2008 granting leave to raise additional substantial questions of law and the said substantial questions of law are as hereunder:

(2.) THE second appeal is filed against the judgment and decree made in A. S. No. 75 of 1980 on the file of the Additional District Judge, Krishna, at Machilipatnam wherein the dismissal of the suit O. S. No. 513 of 1976 on the file of the i Additional District Munsif at Machilipatnam, had been modified. In the second appeal the appellant/second plaintiff is no more likewise the respondent/ defendant is no more and the legal representatives are brought on record. This Court allowed the second appeal with costs setting aside the judgment and decree of the appellate Court to the extent indicated therein and it was also observed that the second plaintiff is entitled for a decree as prayed for in the plaint. Aggrieved by the same, the matter was carried in Civil Appeal No. 5227 of 1998 to the Supreme Court and the Apex Court while allowing the appeal set aside the judgment of this Court and restored the same to its original file for fresh consideration in accordance with law. Subsequent thereto in view of the application, SAMP No. 2333 of 2008 referred to supra, being allowed the aforesaid substantial questions of law have been formulated.

(3.) ON the contrary, Sri. G. Krishnamurthy, learned Counsel representing the present legal representative of the respondent, had taken this Court through the findings recorded by the appellate Court and would maintain that these findings are predominantly findings of fact and no substantial question of law as such is involved. The Counsel also pointed out to the remand order made by the Apex Court and further would contend that even if the substantial questions of law, now formulated by this Court at the request of the Counsel for the appellants, if carefully examined, they are only questions of fact and hence no substantial questions of law as such are involved in the second appeal. The learned Counsel also would maintain that the first plaintiff alone was examined and the second plaintiff had not entered into the witness box at all and hence, such plaintiff cannot maintain the appeal especially in the absence of the first plaintiff. The Counsel made elaborate submissions about non-joinder of parties, the concept of family arrangement and the scope and ambit of Section 100 of the Code of Civil Procedure and further placed reliance on several decisions to substantiate his submissions.