Penugonda Seetharamaiah, vs Syed Chinna Dastagiri Saheb,
2022 Latest Caselaw 447 AP

           HON'BLE DR. JUSTICE K. MANMADHA RAO

    Review I.A.No.1 of 2012 (Review SAMP No.221 of 2012)
                           In/and
              SECOND APPEAL No.639 OF 2010

JUDGMENT:

I.A.No.1 of 2012 (Review SAMP No.221 of 2012) has been

filed by the applicant/appellant to review the judgment and

decree dated 07.07.2011 passed by the learned Single Judge of

the Common High Court of Judicature at Hyderabad.

2. Having heard the both counsels and looking to the

reasons stated in this application, there are reasonable reasons

in preferring the Review Petition.

3. The respondents no.1 and 2 herein i.e., the plaintiffs

have filed O.S.No.171 of 1999 on the file of Junior Civil Judge,

Giddalur, for partition of the plaint schedule property into 2

equal shares by meets and bounds according to the good and

bad qualities and to deliver the possession of one such share to

the plaintiffs to an extent of Ac 1.59 cents and for costs. The

said suit was dismissed on 18.06.2007 by the trial Court.

Against the same, the respondents/plaintiffs preferred the first

appeal A.S.No.198 of 2009 on the file of VI Additional District &

Sessions Judge (Fast Track Court), Markapur and the same was

allowed vide judgment and decree dated 01.04.2010. Aggrieved

by the same, the appellant/defendant preferred the present

Second Appeal No.639 of 2010 before the Common High Court

of Judicature at Hyderabad and the same was dismissed by the

learned Single Judge of this Court on 07.07.2011. Aggrieved by

which, the applicant/appellant has preferred the present review

petition I.A.No.1 of 2012.

4. Learned counsel for the appellant mainly contended

that this Court while dismissing the Second Appeal, answered

the first question against the appellant instead of

'respondents/plaintiffs' at the end of paragraph 22 of the

judgment. In the second question answered against the

appellant instead of 'respondent/plaintiff' at the end of

paragraph 23 of the judgment. He also contended that finally at

paragraph 24 of the judgment, at the last line also it was

answered as 'the presence of the said lady as a party as legal

representative was in no way helpful to the appellant instead of

'no way helpful to the respondents/plaintiffs'.

5. While going through examine the issue of scope in

Review, limited grounds on which, the judgment can be

reviewed, have been set out in Order XLVII Rule 7 of Code of

Civil Procedure, 1908 (for short "CPC"). Order XLVII Rule 7 of

CPC reads as under:

Order XLVII Rule 1 of Code of Civil Procedure 1908 "Application for review of judgment"

(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the

decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

6. It is also trite that the expression "any other sufficient

reasons", as employed in Order XLVII Rule 1 has to be

interpreted ejusdem generis to the expressions that precede it.

7. The Hon'ble Supreme Court in the case

of AribamTuleshwar Sharma v. AribamPishak Sharma1 has

noted that power of review is not to be exercised on grounds

that the decision is erroneous on merits. The relevant para of

the judgement is reproduced herein below:-

Moran Mar Basselios Catholicos v. Most Rev. Mar PouloseAnthanasius,: (1955) 1 SCR 520; Lily Thomas v. U.O.I.: (2000) 6 SCC 224; Ajit Kumar v. State of Orissa (1999) 9 SCC 596;

"The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

(1979) 4 SCC 389

8. In the case of Meera Bhanja v. Nirmala Kumari

Choudhury2, wherein, the Hon'ble Supreme Court in Para - 8

held as under :

"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of AribamTuleshwar Sharma v. AribamPishak Sharma, speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para

3) ―It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court (1995) 1 SCC 170 from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court."

9. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P.3, held as follows:

"There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous

1995 AIR 455

(SCR p. 186)

decision and a decision which could be characterised as vitiated by ‗error apparent'. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. ... where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.

10. The term 'mistake or error apparent' by its very

connotation signifies an error which is evident per se from the

record of the case and does not require detailed examination,

scrutiny and elucidation either of the facts or the legal position.

11. Moreover, the petitioner has made out grounds under

Order XLVII Rule 1, us to exercise our power of review.

12. In view of the foregoing reasons and judicial

precedents, there is a substance in the review petition and the

same is liable to be allowed.

13. Accordingly, Review I.A.No.1 of 2012 (Review SAMP

No.221 of 2012) is hereby allowed.

14. Now, this Court is inclined to interfere with the

judgment and decree dated 07.07.2011 passed by the learned

Single Judge of the Common High Court of Judicature at

Hyderabad and found that where some mistake or error

apparent on the face of the record.

15. This Second Appeal raises few substantial questions

of law.

The facts that have given rise to the filing of the Second

Appeal are as under: Respondents 1 and 2 (for short 'the

respondents') filed O.S.No.171 of 1999 in the Court of Junior

Civil Judge, Giddalur, for the relief of partition and separate

possession of an extent of Acs.3.18 cents of land in survey

No.1168 of Komarole Village or Prakasam District. They pleaded

that the land was purchased from Penugonda Chinna Ramanna

and his wife Lakshamma, through a sale deed dated

16.08.1986, marked as Ex.A.1. Penugonda Ramanna was

impleaded as defendant No.1 and his son, the appellant herein,

as defendant No.2. During the pendency of the suit, Ramanna

died and his legal representatives, respondents 4 and 5 were

brought on record.

16. The respondents pleaded that when they were in

possession and enjoyment of the property purchased under

Ex.A.1, the appellant and his father, Ramanna, filed O.S.No.56

of 1992 in the Court of Junior Civil Judge, Giddalur, for

perpetual injunction, in respect of Ac.1.59 cents of the said land

and that they opposed the suit by pleading purchase under

Ex.A.1. It was also pleaded that though, it emerged that Chinna

Ramanna, who figured as vendor in Ex.A.1, was different from

Ramanna, the first plaintiff in that suit, who is the husband of

Lakshamma, and the said suit was decreed, it was held that

Lakshamma, being the co-owner of Acs.3.18 cents, is entitled to

half share, that Ex.A.1 is valid to the extent of the share of

Lakshamma, and that it shall be open to them to seek the relief

of partition. Accordingly, they prayed for a decree for partition,

claiming half share in Acs.3.18 cents of land.

17. The suit was opposed by the appellant. He pleaded

that the so-called sale through Ex.A.1 is fictitious and once, it

was found that one of the vendors therein was a non-existent

person, the transaction, as a whole, is null and void. He has

also pleaded that it was not at all competent for the Court,

which decided O.S.No.56 of 1992 in favour of a defendant, in a

suit for injunction to determine the title, that too, when the

vendors of the property, were not parties to the suit.

18. Learned counsel for the appellant, submits that

Ex.A.1 is void ab initio, since it was found that one of the

vendors therein was a fictitious person. He contends that

O.S.No.56 of 1992, filed by the appellant and his father, against

the respondents, was the one for injunction simplicitor, in

respect of Ac.1.59 cents of land and there was neither any

occasion, nor basis for the Court, which decided that suit to

declare the title of the respondents over a property, which, in

fact, was not the subject-matter of that suit at all. Learned

counsel further submits that the application of principle of res

judicata to the facts of the present case, by the lower Appellate

Court, is contrary to law.

19. Learned counsel for the respondents, on the other

hand, submit that a clear finding was recorded in O.S.No.56 of

1992, recognizing and upholding the title of the respondents

over half of the suit schedule property, and being a party to the

said suit, the appellant cannot object to the consequences

flowing there from. They contend that the finding recorded by

the Court, in that suit, become final, and the same operates as

res judicata in the present suit. Learned counsel further submit

that one of the vendors, Lakshamma, though party to the

present suit, may be as L.R. of the deceased-1 st defendant, did

not dispute the execution of Ex.A.1.

20. The suit filed by the respondents was the one for

partition and separate possession of the suit schedule property.

Taking into account, the purport of the pleadings, the trial

Court framed the following issues for its consideration:

i) "Whether the plaintiffs are entitled for partition and

for delivery of possession as prayed for?

ii) Whether the suit is barred by limitation? iii) Whether

the plaintiffs are not co-owners and thereby the

Court fee is incorrect?"

Two additional issues were also framed. They are:

i) "Whether the Will dated 20.03.1999 is true, void and

binding on plaintiff?

ii) Whether D.3 to D.5 are not necessary parties to the

suit?"

21. On behalf of respondents, PWs.1 to 4 were examined

and Exs.A.1 to A.3 were filed. On behalf of the appellant, DWs.1

to 6 were examined and Exs.B.1 to B.5 were filed. The suit was

dismissed. In A.S.No.198 of 2009, the lower Appellate Court

framed only point for its consideration, viz. , "Whether the

appellants have established substantial grounds to set aside the

decree and judgment and to decree the suit or not?"

22. The finding in O.S.No.56 of 1992 in favour of the

respondents, as to their right, under Ex.A.1, would operate as

res judicata, and that the suit is filed within limitation, and

passed a preliminary decree.

23. After hearing learned counsel for the appellant and

learned counsel for the respondents, this Court finds that the

following substantial questions of law arise for consideration:

a) What is the legal impact of an observation, pertaining to the title, in favour of the defendant, in a suit for injunction, in respect of an item of property, which is not the subject-matter of that suit; and whether it would operate as res judicata in a subsequent suit for partition?

b) Whether a sale deed executed by two individuals can be sustained to the extent half of the property conveyed under it.

c) Whether a person who becomes party to a suit in his capacity as legal representative of a deceased party can take a plea which is available to him in his individual capacity?

24. The sole appellant herein, is the son of Penugonda

Ramanna and Lakshamma. His parents purchased an extent of

about Acs.5.00 of land. The respondents pleaded that through

Ex.A.1, the parents of the appellant, sold an extent of Acs.3.19

cents of land, in the year 1986, and that they are in possession

and enjoyment of the same. The appellant and his father filed

O.S.No.56 of 1992 for the relief of perpetual injunction, against

the respondents, in respect of Ac.1.59 cents of land in the same

survey number. It was pleaded that the suit schedule property

therein was gifted in favour of the respondents by his father.

The defence of the respondents was that they purchased

Acs.3.19 cents of land through Ex.A.1. 13. In the course of trial

of that suit, it emerged that one of the vendors in Ex.A.1 was

Penugonda Chinna Ramanna and the other was Lakshamma.

The only question before the trial Court was as to whether the

plaintiffs before it, were in possession and enjoyment of the suit

schedule property. A finding was recorded that they are in

possession and the suit was decreed. The matter ought to have

ended there.

25. The Court, however, proceeded to discuss, the plea of

purchase of land in Ex.A.1 by the respondents. The discrepancy

as to the names, i.e. the husband of Lakshmamma is Ramanna

and not Chinna Ramanna, was pointed out. The trial Court

recorded a finding to the effect that the person, by name,

Chinna Ramanna, who figured as one of the vendors in the

document, is not the 1st plaintiff in that suit i.e. father of the

appellant herein. That finding was sufficient for the Court to not

to proceed further on that aspect, even if the validity of the sale

through Ex.A.1 was at issue. However, it recorded certain

curious and strange findings, viz.,

"1. First plaintiff and Penugonda Lakshmamma are only can be treated as either joint owner or as co owners. Therefore, neither of them have any right to dispose of more than the interest what they had in the property.

2. Since the first plaintiff has interest only to the extent of Ac.1.59 cents as joint owner he can not transfer more than the said extent. Therefore, the transfer by way of Gift Deed under Ex.A.2 for more than the extent of Ac.1.59 cents is void to the extent of the more extent.

3. Therefore, the defendants cannot acquire any right for more than Ac.1.59 cents which one of their vendor has.

4. Therefore, it appears that the first plaintiff being the husband of Penugonda Lakshamma has been in possession of the entire extent of Acs.3.18 cents.

5. I am of the considered opinion that the first plaintiff being the male member of the family as co-owner or joint owner has been in exclusive and peaceful possession of the property in excess of his legitimate share.

6. If at all the defendants had any grievance as to the good and bad quality of the land claimed by the defendants on south, they are at liberty to seek the allotment of shares considering good and bad qualities by way of filing a suit for partition."

26. It is these findings that constitute the cause of action

for the respondents to file the suit for partition and those very

findings held by the lower Appellate Court, in the instant case,

to be operating as res judicata.

27. The Code of Civil Procedure, 1908 provides for

framing of issues with the object of identifying the exact area of

controversy. The pleadings are taken into account and

sometimes, preliminary arguments are heard, while framing the

issues. The parties are supposed to lead evidence and advance

arguments with reference to the issues so framed. The trial

Court cannot travel beyond the scope of the suit as reflected in

the issues. Further, even if an occasion arises to identify a

particular area of controversy, which does not find place in the

pleadings, the question of court fee, would come in the way of

the trial Court, in dealing with such questions. If at any stage of

the proceedings, the parties or the Court feel that some more

facts or further prayer is necessary, attempt can certainly be

made to amend the pleadings, and to take other consequential

steps.

28. When such are the basic tenets of trial of a civil suit,

it is not at all competent for a Court to travel beyond the scope

of the pleadings as reflected in the issues. There may be rare

instances of the parties, proceeding in the course of trial, with

reference to a controversy, which is not reflected in the issues,

seeking adjudication on an interrelated area of dispute. The

Court can deal with it provided that the controversy is not

outside the scope of the suit, nor it involves the questions of

jurisdiction, limitation and Court fee, and the parties lead

evidence and advance arguments with specific reference to it

and without any restrictions.

29. In case it becomes necessary to pronounce upon the

title, in respect of the property, as regards which, the relief of

injunction claimed, it has to be left open to the parties, to seek

such relief declaration of title, in a properly constituted

proceedings. Further, the possibility to express the view on title

does not exist, in respect of the plea raised by the defendant

that too, while passing a decree against him. Still less is the

possibility to express any view vis-à-vis the property, which is

not the subject-matter of the suit. These principles are so well-

settled that hardly the assistance of any precedent is needed to

support or sustain them.

30. The observations made by the trial Court in

O.S.No.56 of 1992, which are extracted above, it becomes clear

that they are totally outside the scope of the suit and there did

not exist any occasion, or justification or possibility for the

Court to express.

31. Res judicata is one of the effective defences for the

defendant in a suit. The purport thereof is that, the issue, which

arises in a particular suit, has fallen for consideration, as

between the same parties, in an earlier round of litigation, and

that the adjudication thereon, which became final, would

preclude a plaintiff in the subsequent suit, to raise that very

issue. It is one of the facets of principle of 'estoppel'. The

fundamental requirement for application of principle of res

judicata is that a clear and definite issue, which can be

discerned from the subsequent proceedings was in issue in the

earlier set of proceedings between the same parties. The safest

way to call out the purport of such issue is to make reference to

the issues that are framed in both the suits. If slight

discrepancy exists, the principle of "constructive" res judicata

can also be pressed into service.

32. Any observations made in the course of judgment, do

not have any binding nature and they are called as 'obiter dicta'.

It is only ratio decidendi that can constitute the basis for the

plea of res judicata and not obiter. In the instant case, one of

the issues is as to whether the respondents derived title of the

suit schedule property under Ex.A.1. No such issue has arisen,

much less was framed in O.S.No.56 of 1992. It was totally

impermissible for the Court to pronounce upon title, in that

suit. Further, the person from whom title was claimed was not a

party. This issue is answered in favour of the appellant.

33. The appellant claimed title to the property under

Ex.A.1, said to have been executed by Lakshmamma and her

husband. A finding was recorded in O.S.No.56 of 1992 to the

effect that Chinna Ramanna who is one of the co-executants of

the sale is not the husband of Lakshmamma. There, it was a

case of impersonation. In such cases, the question of sustaining

part of the document to the extent of a part of it, by invoking

Section 32 of the Specific Relief Act does not arise. The reason is

that impersonation is nothing but a category of fraud and it is

too well settled that fraud would vitiate everything. Secondly,

Lakshmanna was not a party to that suit. This issue is

answered in favour of the appellant.

34. It has already been mentioned that Ex.A.1 cannot be

sustained. It is argued on behalf of the appellant that though

Lakshmamma figured as a party to the present suit, she did not

assail the sale deed Ex.A.1. Two reasons operate against the

appellant. The first is that the appellant did not choose to

implead Lakshmamma in O.S.No.56 of 1992 and any

observations or findings in that suit do not bind her. The second

is that though she figured as party to O.S.No.171 of 1999, it was

as one of the legal representatives of her husband Ramanna.

Not only she can desist from revealing her stand vis-à-vis

Ex.A.1, but also she is not entitled to plead any defence which is

available to her in her individual capacity.

35. Accordingly, the Second Appeal is allowed. No order

as to costs.

Miscellaneous petitions, if any, pending in this Appeal

shall stand closed.

_______________________________ Dr. K. MANMADHA RAO, J.

Date: 31 -01-2022.

Gvl

HON'BLE DR. JUSTICE K. MANMADHA RAO

Review I.A.No.1 of 2012 (Review SAMP No.221 of 2012) In/and SECOND APPEAL No.639 OF 2010

Date. 31 -01-2022

Gvl