JUDGMENT
1. In this Second Appeal, the reversing decree of the lower appellate court in A.S.56 of 1987 is challenged.
2. The defendant in the suit O.S.159 of 1977 is the appellant herein. The respondent-plaintiff filed the suit on the file of the District Munsif, Cheepurupalli for recovery of an amount of Rs.8,762/- together with interest on the basis of the promissory note. The appellant herein did not dispute the execution of promissory note. However, he pleaded that the liability was already discharged. He took a further plea that he being a Small Farmer is entitled for the benefit under Act 7 of 1977.
3. The Trial Court framed two issues viz., (i) whether the discharge as pleaded by the appellant is true; and (ii) whether he is a Small Farmer and entitled for the protection under Act 7 of 1977. Since the plea of discharge was given up, the only issue before the Trial Court was the entitlement of the appellant under Act 7 of 1977. The Trial Court recorded a finding that the respondent held and possessed Ac.11-24 cents of land only and if the same is divided between the defendant and his two minor sons, they will get only Ac.3-70 cents each and the share being less than Ac.5-00, as provided for under Act 7 of 1977 the appellant was entitled for the benefit. Accordingly, the suit was dismissed.
4. The respondent-plaintiff preferred A.S.56 of 1987 in the Court of Additional District and Sessions Judge, Vizianagaram.
5. The lower appellate court, on appreciation of evidence on record came to the conclusion that the appellant herein held Ac.14-14 cents.
6. The lower appellate court took the view that since the suit amount was borrowed for the benefit of the joint family no notional partition among the appellant and his sons is to be undertaken. In that view of the matter it held that the appellant is not entitled for the benefit of the provisions of Act 7 of 1977.
7. Therefore, the suit was decreed. The decree of the lower appellate court is challenged in the present Second Appeal.
8. Mr.Kaveri Promod appearing for Shri Ravi Shankar, learned counsel for the appellant submits that the view taken by the lower appellate court cannot be sustained either on facts or in law and that the appellant was entitled for the benefit under Act 7 of 1977.
9. Shri K.V.Subrahmanya Narasu, learned counsel for the respondent-plaintiff on the other hand submitted that the lower appellate court recorded a finding of fact on the basis of evidence on record. It is his contention that it is not disputed that the amount was borrowed not for the individual benefit of the appellant but for the family comprising of himself and his sons and as such the decree of the lower appellate court cannot be found fault with.
10. This is an unfortunate case where the respondent, who had advanced the amount of about 3,000/- had to examine as many as 15 witnesses and file as many as 26 documents in his effort to recover that amount. Equally unfortunate is the attitude exhibited by the appellant who, having admitted the factum of borrowing the amount had resisted the suit by examining as many as 14 witnesses and filing 27 documents. The volume of record and the time over which the proceedings were spread over indicates as to how the precious time of the Court became casualty in the hands of persistent litigants. In a way this is a sad reflection on the system.
Coming to the merits of the matter, it is not disputed that the appellant had admitted the execution of the promissory note and borrowing of the amount. It was for this reason that no issue was framed by the Trial Court in this regard. He pleaded discharge of the liability and an issue was framed thereon. However, since it was not pressed before the Trial Court, no discussion was ensured on that. It was only on the question of the entitlement of the appellant for the benefit under Act 7 of 1977 that it had to be litigated for about 22 years.
11. The appellant did not dispute that the amount was borrowed by him for the benefit of the Joint Family comprising of himself and his two minor sons. The question of notional partition for the purpose of Act 7 of 77 would arise if only the amount is borrowed for the benefit and purpose of an individual and to ascertain as to whether in the notional partition the share of such borrower would be less than 5 acres of dry land or 2.5 acres of wet land. The trial Court recorded that the holding of the appellant is Ac.11-24 cents whereas the lower appellate Court found that it is Ac.14-14 cents. Even if the finding of the Trial Court is to be taken into account, it is double the holding as contemplated under Act 7 of 1977.
12. As long as it was not disputed that the borrowing was for the benefit of the family, the finding of the lower appellate court cannot be found fault with. Therefore, I do not see any reason to interfere with the finding of fact recorded by the lower Court on the basis of evidence on record. The Second Appeal is dismissed.
The learned counsel for the appellant, however, seeks the indulgence of the Court to grant instalments.
13. Though strictly speaking the appellant is not entitled for any indulgence having regard to the fact that he dragged the matter for about 24 years, with a view to give quietus to the entire issue he is granted 4 monthly instalments to pay the decretal amount. All the instalments shall be paid within the first week of every month commencing from March 2002.
14. Default in payment of any one of the instalments would entail in withdrawal of the facility of instalments accorded to the appellant.
CROSS OBJECTIONS
15. The respondent-plaintiff filed Cross Objections on the question of costs. I do not see any reason to grant any relief in this proceeding. The Second Appeal as well as the Cross Objections are dismissed subject to the facility of instalments accorded to the appellant. There shall be no order as to costs.