HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.672 of 1999 DATED: 19-08-2011 BETWEEN: Volipi Eswarappa …Appellant and Volipi Ramana Respondents HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.672 of 1999 JUDGMENT: This second appeal is filed against the decree and judgment dated 23.03.1999 passed by the Senior Civil Judge, Piler, Chittoor District in A.S.No.102 of 1996 reversing the decree and order dated 06.06.1994 passed by the District Munsif, Vayalpad in I.A.No.142 of 1993 in O.S.No.131 of 1981. 2. I have heard the learned counsel appearing for the parties. For the sake of convenience, the parties will be referred as plaintiffs and defendants. 3. After passing of a preliminary decree in O.S.No.131 of 1981, the defendants in the suit filed a final decree petition in I.A.No.142 of 1993 under Order 20 Rule 18 C.P.C. and sought for appointment of a commissioner to divide item No.1 of the plaint schedule proprieties. It was contended by the defendants that as the plaintiffs did not co-operate with them for division of property after passing of preliminary decree, they filed the final decree petition to divide item No.1 of the plaint schedule properties, to carve out 0.45 ½ cents of land and put them in possession of the same. The said petition was dismissed by the learned District Munsif on the sole ground that as per the preliminary decree, the plaintiffs are entitled for Ac.1.39 ½ cents of land and the defendants are entitled for the remaining 0.46 ½ cents of the land, the Commissioner carving out 0.45 ½ cents of the land and allotting the same to the defendants is not in accordance with the terms of the preliminary decree and therefore, the final decree cannot be passed in terms of report of the Commissioner. 4. Feeling aggrieved, the defendants filed A.S.No.102 of 1996, which was heard and disposed of by the Senior Civil Judge, Pileru. The learned Senior Civil Judge rightly held that when the defendants are entitled for 0.46 ½ cents in item No.1 as per the terms of the preliminary decree, there is nothing wrong in passing final decree in respect of 0.45 ½ cents only. Holding as such the learned appellate Court reversed the order passed by the trial Court. According to me also, as the defendants did not claim more land than to which they are entitled under the preliminary decree and the difference being only one cent and the defendants claiming lesser extent to which they are entitled under the preliminary decree, the learned District Munsif ought not to have dismissed the final decree application filed by the defendants. 5. The second appeal has been admitted on formulating the following substantial question of law for consideration: Whether in the absence of a specific declaration in the preliminary decree that the respondents 1 to 4 are entitled to an extent of Ac.0.46 ½ cents in Item No.1 of plaint schedule the judgment of the lower appellate Court sustainable in law? 6. The learned counsel appearing for the appellants/plaintiffs would submit that since there is no ascertainment of shares properly in the final decree, the matter may be remitted back to the trial Court for fresh disposal. I absolutely see no merit in the contention urged by the learned counsel. Further the Court passing the final decree cannot amend or can go behind the preliminary decree on a matter determined by the preliminary decree. In this case, therefore, the submission for remand made by the learned counsel appearing for the appellants/defendants cannot be accepted. Moreover, no substantial question of law is involved for consideration in the second appeal. The judgment and decree rendered by the learned Senior Civil Judge, which is the first appellate Court in deciding a fact cannot be interfered with while considering the second appeal when the said decision on fact is in conformity with the evidence on record and not being perverse. Absolutely there is no merit in the second appeal and the same is liable to be dismissed. 7. The second appeal is therefore, dismissed. There shall be no order as to costs. _______________ R. KANTH RAO,J Date: 19-08-2011 kvrm HON’BLE SRI JUSTICE R.KANTHA RAO SECOND APPEAL No.672 of 1999 Date: 19-08-2011