PADMATI SANGAMMA Vs. MANAMMA

JUDGEMENT

(1.) The C.M.A. is preferred against the order made by the Subordinate Judge in O.P.No. 135 of 1991 dt. 21-2-1994 dismissing the application filed under Order 33 Rule 1 seeking permission to sue as an indigent person. The brief facts of the case are as follows: The petitioners/plaintiffs have filed a suit for declaration that the petitioner No. 1 is owner of the C-schedule property and for recovery of possession in Survey 127/A to an extent of 3.34 guntas and in Survey No. 181/A to an extent of Acs. 16.12 guntas. The cause of action arose to file the suit on 8-6-1991 when taking advantage of the illness of petitioner No. 1 the defendants effected mutations in their names and illegally obtained possession with regard to the C-schedule property though the property is originally in the name of petitioner No. 1. The learned Judge has conducted regular enquiry under Order 33 Rule 1 of CPC into the means of the petitioner so as to decide the controversy in question. Originally the suit was instituted by the petitioner Nos. 1 and 2 on 28-1-1992. The petitioner No. 1 died and the second petitioner who is minor who was represented by his next friend viz., Eshwaraiah who was examined as P.W.I who deposed that the petitioner No. 2 had no means to pay the Court fee and he did not acquire any property subsequent to the petition. During the cross-examination he stated that he did not know what were the lands in possession of petitioner No. 1 and he did not know how much land was possessed by petitioner No. 1. He further stated that he does not know whether petitioner No. 1 was in possession of land in Survey No. 181 to an extent of Acs. 6-00. On the other hand, respondent No. 3 was examined as R.W.I who deposed that petitioner No. 1 was his mother-in-law and sha died about 11'/2 years ago and the petitioner No. 2 was the son of respondent No. 1 and petitioner No. 1 left behind her Acs. 11.18 guntas in Survey No. 181 of Edulapalli village and he further stated that petitioner No. 1 has received compensation with regard to the acquisition of her land by the Government in Ex.B-1 to Ex.B-4 which are certified copies of Pahanis for the years 1988-89, 1989-90, 1990-91 and 1991-92 respectively. He further stated that petitioner No. 1 was in a capacity to pay Court fee and petitioner No. 2 was also in a position to pay Court fee.

(2.) The learned Judge considering the evidence of R.W.I without considering the evidence of P.W.I relied upon the Pahanies Ex.B-1 to Ex.B-4 to the effect that they pertain to Survey No. 181/A and those lands stand in the name of late petitioner No. 1 and by virtue of that the learned judge treated petitioner No. 1 as pattedar of those lands and curiously observed that it is not explained how petitioner No. 1 was (not) in position to pay the Court fee since these lands stand on her name. The other ground on which the learned Judge observed that first respondent the daughter of petitioner No. 1 is in separate possession and enjoyment of B-schedule property and petitioner No. 2 herein who is a minor and who is natural son of first respondent, when first respondent is having sufficient property it is also not explained how the petitioner No. 2 is not in a position to pay Court fee.

(3.) The controversy relates to C-schedule property in Survey No. 181/A. The learned judge while rejecting the application of the petitioner dismissed it on an erroneous assumption of law that since Pahanis for the years 1988 to 1992 vide Ex.B-1 to Ex.B-4 stand in the name of petitioner No. 1 by virtue of which the petitioner No. 1 is in possession to pay the Court fee without noticing the relevant provisions contemplated under Order 33 Rule 1 Explanation I(a) of CPC and also without examining the legal requirement as to whether by mere standing the Pahanies that by itself declares that the petitioner No. 1 is in a position to pay the Court fee without appreciating or understanding that by itself cannot be the criteria so as to disentitle the petitioner to sue as an indigent person. The second ground assigned by the learned Judge by observing that the natural mother is possessed of means and her income can be considered to determine pauperism of the second petitioner.