Andhra Pradesh High Court - Amravati

Gowram Thippa Reddy, vs Vuchala Sudarshan Reddy on 6 May, 2022

Bench: C.Praveen Kumar, B Krishna Mohan

                                    1




       HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
                        AND
       HON'BLE SRI JUSTICE B. KRISHNA MOHAN

                    Review   I.A.
                               No.2 of 2021
                    Review   I.A.
                               No.3 of 2021
                    Review   I.A.
                               No.4 of 2021
                    Review   I.A.
                               No.5 of 2021
                              In
                     C.M.A. No. 71 of 2021

                    Review   I.A.
                               No.2 of 2021
                    Review   I.A.
                               No.3 of 2021
                    Review   I.A.
                               No.4 of 2021
                    Review   I.A.
                               No.5 of 2021
                              In
                     C.M.A. No. 73 of 2021

                    Review   I.A.
                               No.2 of 2021
                    Review   I.A.
                               No.3 of 2021
                    Review   I.A.
                               No.4 of 2021
                    Review   I.A.
                               No.5 of 2021
                              In
                     C.M.A. No. 86 of 2021

"BY ORDER OF THE COURT"

1)   Since,   all   these    Review     Applications   are   inter-

connected, they are disposed of by this Common Order.

2)   The present Review Applications are filed under Order

XLVII Rules 1 and 2 of Code of Civil Procedure, 1908, seeking

to review the Common Judgment, dated 21.09.2021, passed

in C.M.A. Nos. 86, 71 and 73 of 2021.

3)   I.A. No. 2 of 2021 is filed to set-aside the Judgment in

C.M.A. No. 86 of 2021; I.A. No. 3 of 2021 is filed to dispense

with filing of certified copy of the Judgment; I.A. No.4 of 2021

to suspend the Order and Decree passed by the IV Additional

District and Sessions Judge in I.A. No. 35 of 2021 in O.S. No.

9 of 2021 on 26.02.2021; and I.A. No. 5 of 2021 seeking Stay

of the Order passed in the C.M.A.
                                     2




4)   Being satisfied with the reasons stated in the affidavit

filed in support of I.A. No. 3 of 2021 filed for dispensing with

filing of certified copy of the Judgment under appeal, is

allowed. Since, main case itself is disposed of, it may not be

necessary for us to pass orders in I.A. No. 4 and 5 of 2021.


5)   The facts, in issue, are as under:


     (i) Originally, the Plaintiff filed O.S. No. 9 of 2021 before

        the     Court   of     IV       Additional   District    Judge,

        Anantapuramu, seeking declaration of right and title

        over the Plaint Schedule Property with consequential

        permanent injunction against Defendant No. 1 to 5,

        who are the Review Petitioners herein.


     (ii) The Plaint Schedule Property is a land admeasuring

        Ac. 1.53 cents in Sy. No. 3-B1 in Kakkalapalli

        Village, Anantapuram Rural Mandal and District.

        Along with the Suit, the Plaintiff filed I.A. No. 35 of

        2021 under Order XXXIX Rules 1 and 2 seeking

        temporary injunction against the Defendants and

        their   men     from    interfering      with   the     peaceful

        possession and enjoyment of the subject property.

        Initially, the trial Court grated ad-interim injunction

        till 17.02.2021. Subsequently, the Defendants filed

        counter stating that they have obtained permission

        for construction of nine [09] shops in subject
                             3




    property and accordingly started construction of the

    same. At that point of time, the Plaintiff filed I.A.

    No.63 of 2021 in I.A. No. 35 of 2021 seeking

    temporary injunction restraining the Defendants

    from making further constructions in the said

    property. The Plaintiff also filed I.A. No. 64 of 2021 in

    I.A. No. 35 of 2021 seeking injunction to restrain

    Defendant No. 3 from alienating Petition Schedule

    Property. Vide separate orders, dated 26.02.2021,

    the trial Court allowed all the applications filed by

    the Plaintiff, namely, restraining the Defendants

    from     proceeding   further   with   the   construction,

    restraining the Defendants from selling away the

    property and also an injunction.


(iii) Aggrieved by the same, the Defendants filed C.M.A.

    No. 71 of 2021 against the Order passed in I.A.

    No.63 of 2021; C.M.A. No. 86 of 2021 against the

    Order passed in I.A. No. 35 of 2021; while Defendant

    No. 3 alone preferred C.M.A. No. 73 of 2021 against

    the Order passed in I.A. No. 64 of 2021. All these

    three    C.M.As   are   heard    and    by   a   Common

    Judgment, dated 21.09.2021, this Court dismissed

    the Appeals filed by the Defendants. Challenging the

    same, the present Review Applications came to be

    filed.
                                4




6)   Before dealing with the contentions raised in the

Review, it is to be noted that, in the Appeals filed, the case of

the Plaintiff is that, subject property initially belongs to the

joint family of one Narayana Reddy and his brothers. One

Pedda Musali Reddy, who is the brother of Narayana Reddy,

sold his share to one G. Nallamma by way of registered Sale

Deed,   dated   19.03.1948     [Ex.P1].   After   the   death   of

G.Nallamma, her son, namely, G. Chinna Konda Reddy [died]

and, as such, his legal heirs divided the said land into plots

and sold plot Nos. 1 to 9 admeasuring Ac. 0.15 cents in favor

of the Plaintiff by way of 10 separate registered Sale Deeds,

dated 24.06.2016 [Ex.P4]. It is said that, since the date of

purchase, the Plaintiff became the owner of the property and

constructed a shed bearing H. No. 1-14-1, obtained electrical

connection [Ex.P6] and also paid House Tax [Ex.P5].


7)   While the case of the Defendant Nos. 1 to 3 is that, the

said Narayana Reddy, who is the original assignee, and after

his demise, his four [04] brothers inherited the said property.

One of the brother, is the father of Defendant No. 1 and 2. It

is the case of the Defendants that, two brothers of Narayana

Reddy, namely, G. Narayana Reddy and Pedda Musali Reddy,

did not get any share out of it and hence Pedda Musali Reddy

has no right to sell 1/6th share of the property to

G.Nallamma. It is the case that, Defendant No. 1 and 2

executed Gift Deed, dated 05.02.2021 [Ex.R9); Gift Deed,
                                5




dated 17.01.2013 [Ex.R11); Gift Deed, dated 03.02.2010

[Ex.R13) in favor of Defendant No. 3 and subsequently

Rectification Deeds of the said Gift Deeds were executed with

regard to change in survey number from Sy. No. 3B to 3B1.


8)   Having regard to the evidence placed, considering the

arguments advanced, the trial Court rejected the plea of the

Defendants, which was upheld in Appeal. Thereafter, as

observed earlier, these Reviews came to be filed.


9)   Sri. O. Manohar Reddy, learned Counsel appearing for

the Petitioners, mainly submits that Order impugned came to

be passed without giving any finding with regard to

conditions envisaged under Order XXXIX Rules 1 and 2

C.P.C. It is further urged that, a 'right of appeal' is provided

under Order XLIII Rule 1 read with Section 104 C.P.C.,

against the order impugned in the Appeals and such being

so, the Appellate Court has to consider the appeal in terms of

Section 102 C.P.C. In other words, his argument appears to

be that the Appellate Court failed to frame the issue for

arriving at a conclusion and also failed to consider the

documentary evidence filed by the parties, which, according

to him, is sufficient to show that there was an error apparent

on the face of the record. He further submits that, in an

application filed for injunction, the burden lies on the

Plaintiff to show that he is in possession of the property as on
                                 6




the date of filing of the suit/application which aspect was not

considered or dealt with by the Appellate Court. He further

submits that, very fact that the Plaintiff filed an application

restraining the Defendants from making any construction, is

sufficient to show that the Plaintiff is not in possession of the

property, which aspect was also not considered by the

Appellate Court. Since, the order does not answer any of the

arguments advanced, he would submit that there is an error

apparent on the face of record and is liable to be reviewed.


10)   On the other hand, Sri. P. Veera Reddy, learned Senior

Counsel appearing for Respondent herein would submit that,

it is not the duty of the appellate court to restate the effect of

the evidence or reiterate the reasons given by the trial Court

when it has agreed with the view of the trial Court.

Expression of general agreement with reasons given by the

Court decision of which is under appeal would ordinarily

suffice. He also submits that, even when the first appellate

court affirms the judgment of the trial court, it is required to

comply with the requirement of Order XLI Rule 31 and non-

observance of this requirement leads to infirmity in the

judgment of the first appellate court. But, when the appellate

court is agreeing with the views expressed by the trial Court,

it need not restate or reaffirm the findings given. In support

of the same, he relies upon Girja Nandini And Ors V.

Bijendra Narain Choudhury1 and Malluru Mallappa (D)

Thr. Lrs V. Kuruvathappa2 in support of his plea.

11) Coming to the power of review, he would submit that,

when there is no error apparent on the face of the record, the

question of reviewing the said order would not arise. He

further submits that, any order passed by this Court now

would amount to giving a new judgment, which is

impermissible under law. He further submits that, mere error

if any, is not a ground to review the order.

12) Coming to the merits of the case, the learned Senior

Counsel would submit that the trial Court has elaborately

dealt with the issues framed therein and basing on the

evidence available on record came to a conclusion that the

Plaintiff is in possession of the property, which warrants no

interference in a review.

13) The point that arises for consideration is, which of the

parties are in possession of the property as on the date of filing

of the Suit?

14) It is a well settled principle of law that, in a Suit for

injunction, the burden is on the person who approaches the

Court to prove that he is in possession of the property as on

the date of filing of the Suit.

1967 AIR 1124

(2020) 4 Supreme Court 313

15) While considering an application for injunction, it is

settled law that the Courts would pass an order thereupon

having regard to prima facie case; balance of convenience; and

irreparable injury. A finding on "prima facie case" would be a

finding of fact. However, while arriving at such a finding of

fact, the court not only must arrive at a conclusion that a

case for trial has been made out but also other factors

requisite for grant of injunction exist. [M. Gurudas and

Others V. Rasaranjan and Others3].

16) The Hon'ble Supreme Court in the above judgments

also held that, while considering the question of granting an

order of injunction one way or the other, evidently, the court,

apart from finding out a prima facie case, would consider the

question in regard to the 'balance of convenience' of the

parties as also 'irreparable injury' which might be suffered by

the plaintiffs if the prayer for injunction is to be refused. The

Court went on to hold that the contentions of the plaintiffs

must be bona fide.

17) Before dealing with the point as to which of the parties

is in possession of the property, it is to be decided as to

whether Order under challenge warrants review and scope of

the High Court in reviewing the Order.

(2006) 8 SCC 367

18) In order to appreciate the same, it would be appropriate

for us to extract relevant paragraphs of the Judgment under

review, as the argument of the learned Counsel for the

Review Petitioner is that there is absolutely no discussion or

reference to any of the documents marked, more so, when it

is a statutory appeal.

"5. In view of the above said rival contentions and averments, the Court below framed an issue to the effect that whether the respondent herein is entitled for grant of temporary injunction pending the suit as prayed for?

6. Both the parties have marked their documents under Exs.P1 to P8 and Exs.R1 to R18 in order to show their respective titles and possession over the petition schedule property.

7. After discussing the case on merits, the Court below came to a conclusion as follows:

Therefore, viewed from any angle, respondents failed to prove their valid title and possession as contended by them. On the other hand Ex.R6 also shows the possession of petitioner as he obtained electricity connection on 21.11.2017 itself, which was got disconnected by R3 on 13th August, 2019, without his knowledge. Therefore, a criminal case was got registered by the petitioner against R3, but its result is not available. Since at present by obtaining one year license under Ex.R18, which is not proper license as it is necessary to get permission of AHUDA for making construction in an extent of more than 300 square meters, R3 trespassed into petition schedule property and also got the electricity connection of petitioner disconnected unauthorisedly and started raising constructions in spite of granting interim injunction by this court.

Therefore, with the discussion made above, this petition is allowed. Ad-interim Injunction granted in favour of the petitioner on 02.02.2021 restraining R1 to R3 from interfering with petitioner's peaceful possession and enjoyment of petition schedule property pending disposal of the suit is hereby made absolute.

8. On perusal of the record and the order under challenge, it is evident that the suit is pending for declaration of title and grant of permanent injunction and both the parties are claiming title and possession over the said property which is to be gone into in the main suit itself. At this juncture we do not propose to go into the said controversy as it may affect the merits of the main case. But having satisfied with the order passed by the Court below granting temporary injunction pending the suit on the touch stone of prima facie case, balance of convenience and irreparable loss in favour of the respondent herein we do not propose to interfere with the same in any manner. However, the trial Court is cautioned to proceed with the suit on merits as per law uninfluenced by any of it's observations and findings given in the order under challenge in the present appeal.

9. Accordingly, the Civil Miscellaneous Appeal No.86 of 2021 is dismissed. No costs."

19) Coming to the power of review, the Hon'ble Supreme

Court in Ram Sahu (dead) through LRs and others V.

Vinod Kumar Rawat and others4, reviewed the entire case

law on the subject and held in paragraph No.34 as under:

"34. To appreciate the scope of review, it would be proper for this Court to discuss the object and ambit of Section 114 CPC as the same is a substantive provision for review when a person considering himself aggrieved either by a decree or by an order of Court from which appeal is allowed but no appeal is preferred or where there is no provision for appeal against an order and decree, may apply for review of the decree or order as the case may be in the Court, which may order or pass the decree. From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review."

2020 SCC Online SC 896

20) In Haridas Das V. Usha Rani Banik5, the Hon‟ble

Supreme Court in paragraph No. 13 held as under:-

"13. In order to appreciate the scope of a review, Section 114 CPC has to be read, but this section does not even adumbrate the ambit of interference expected of the court since it merely states that it "may make such order thereon as it thinks fit". The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason". The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict. This is amply evident from the Explanation to Rule 1 of Order 47 which states that the fact that the decision on a question of law on which the judgment of the court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the court should exercise the power to review its order with the greatest circumspection. This Court in Thungabhadra Industries Ltd. v. Govt. of A.P. [(1964) 5 SCR 174 : AIR 1964 SC 1372] held as follows: (SCR p. 186)'

"[T]here is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous 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."

(2006) 4 SCC 78

21) The Hon'ble Supreme Court in Gopal Singh V. State

Cadre Forest Officers Association6 held that, after rejecting

the original application filed by the appellant, there was no

justification for the Tribunal to review its order and allowed

the revision of the appellant. Some of the observations made

in are extracted below:

"40. The learned counsel for the State also pointed out that there was no necessity whatsoever on the part of the Tribunal to review its own judgment. Even after the microscopic examination of the judgment of the Tribunal we could not find a single reason in the whole judgment as to how the review was justified and for what reasons. No apparent error on the face of the record was pointed, nor was it discussed. Thereby the Tribunal sat as an appellate authority over its own judgment. This was completely impermissible and we agree with the High Court (Sinha, J.) that the Tribunal has travelled out of its jurisdiction to write a second order in the name of reviewing its own judgment. In fact the learned counsel for the appellant did not address us on this very vital aspect."

The principles which can be culled out from the abovenoted judgments are:

i. The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC.

ii. The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise.

iii. The expression "any other sufficient reason"

appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds.

iv. An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the face of record justifying exercise of power under Section 22(3)(f).

v. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.




    (2007) 9 scc 369





            vi.     A decision/order cannot be reviewed under Section
                    22(3)(f)    on     the    basis     of  subsequent

decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.

vii. While considering an application for review, the tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.

viii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party 33 seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier."

22) This Court in Ku. A. Prabhavathi, W.G. V. The State

of A.P. Revenue Department [I.A.No.6 of 2018 in

W.P.No.16450 of 2004] [decided on 08.11.2019]], after

referring to judgments in T.D. Dayal V. Madupu

Harinarayana7 and Mohammadiya Educational Society

v. Union of India, held as under:

"Review, literally and judicially, means re- examination or reconsideration. The basic philosophy inherent in it is the universal acceptance of human fallibility. Yet, in the realm of law, Courts lean strongly in favour of the finality of a decision legally and properly made. Exceptions have been carved out to correct accidental mistakes or to prevent miscarriage of justice or to avoid abuse of process. So, the power of review would be exercised only to remove the error and not to disturb the finality. There are definitive limits to exercise the power of review. The same can be exercised on the discovery of a 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 can also be exercised where some mistake or error apparent on the face of the record is found. But, it may not be exercised on the ground that a decision was erroneous on merits. That would be the province of a Court of Appeal. A

(2013) 6 ALT 681 (DB)

power of review is not to be confused with the appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. The review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility".

23) The Division Bench after considering all the earlier

precedents on the subject, summarised the same as follows:

1) A review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility".

2) When a new or important matter or evidence is discovered which was not within the knowledge of the person seeking review at the time of hearing the case earlier or which could not be produced by him when the order was made.

3) The normal principle is that a judgment pronounced by the Court is final, and departure from the principle is justified only when circumstances, of a substantial and compelling character, make it necessary to do so.

4) Review is not a rehearing of an original matter. The power of review cannot be confused with the appellate power which enables the appellate Court to correct all errors committed by a subordinate Court.

5) A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

6) An error which is not self-evident, and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying exercise of the power of review.

7) There is a clear distinction between an "erroneous decision" and "an error apparent on the face of the record". While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. So, the earlier order cannot be reviewed unless the Court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

8) If the judgment is vitiated by an error apparent on the face of the record, in the sense that it is evident on a mere look at the record without a long-

drawn process of reasoning, a review application is maintainable. If there is a serious irregularity in the proceeding, such as violation of the principles of natural justice, a review application can be entertained."

24) In Aribam Tuleshwar Sharma V. Aribam Pishak

Sharma8, the Hon'ble Supreme Court held that, there are

definite limits to the exercise of power of review. In the said

case, an application under Order 47 Rule 1 read with Section

151 of the Code was filed which was allowed and the order

passed by the Judicial Commissioner was set aside and the

writ petition was dismissed. On an appeal to the Hon'ble

Supreme Court held as under:

"It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court 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 powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."

25) The Hon'ble Supreme Court in Meera Bhanja V.

Nirmala Kumari Choudhury9, while following the judgment

of Aribam Tuleshwar Sharma [cited 8th supra], reiterated

AIR 1979 SC 1047

(1995) 1 SCC 170

that an error apparent on the face of the record for acquiring

jurisdiction to review must be such an error which may strike

one on a mere looking at the record and would not require

any longdrawn process of reasoning.

26) It is also pertinent to mention the observations made by

the Hon'ble Supreme Court in Parsion Devi V. Sumitri

Devi10. While referring to the judgments of Meera Bhanja

[cited 9th supra] and Aribam Tuleshwar Sharma [cited 8th

supra], held as under:

"9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not selfevident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition, it must be remembered has a limited purpose and cannot be allowed to be 'an appeal in disguise'

27) In the case of Inderchand Jain V. Motilal11, the

Hon'ble Supreme Court in paragraphs 9 and 10 observed and

held as under:

"9. The power of review can also be exercised by the court in the event discovery of new and important matter or evidence takes place which despite exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the order was made. An application for review would also lie if the order has been passed on account of some mistake. Furthermore, an application for review shall also lie for any other sufficient reason.

(1997) 8 SCC 715

(2009) 14 SCC 663

10. It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not invoked for reviewing any order."

28) From the Judgments of the Hon'ble Apex Court and this

Court, referred to above, it is very clear that, mere error on

merits may not be a ground to review the order and that error

must be apparent on the face of the record. Further, an error

which is not self-evident and has to be detected by a process

of reasoning, can hardly be said to be an error apparent on

the face of the record justifying the court to exercise its power

of review under Order 47 Rule 1 CPC. The Hon'ble Apex

Court also held that, the error must be such that which may

strike one on a mere looking at the record and would not

require any long drawn process of reasoning. The Hon'ble

Apex Court in Inderchand Jain [cited 11th supra] has also

held that, an application for review shall also lie for any other

sufficient reason.

29) Keeping in view the guidelines laid down by the Hon'ble

Supreme Court, we shall now proceed to deal with the case

on hand.

30) As stated earlier, the first and foremost objection raised

by Sri. P. Veera Reddy, learned Senior Counsel for the

Respondent is that, even if the Court has not framed any

issue and even if the evidence is not recorded/re-appreciated,

still it is not a ground to review the order, when the findings

of the trial Court are confirmed. In support of his contention,

he relied upon a judgment reported in Girja Nandini And

Ors [cited 1st above], wherein, in paragraph No. 13, the

Hon'ble Supreme Court, held as under:

"13. The Trial Court, as we have already observed, on a consideration of the entire evidence and the subsequent conduct of the parties came to the conclusion that there was no severance of Bijendra Narain from his uncle Bidya Narain and with that view the High Court agreed. It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice".

31) He also relied on the judgment of the Hon'ble Supreme

Court in Malluru Mallappa (D) Thr. Lrs V. Kuruvathappa

[cited 2nd above], wherein it was observed reads as under:

"18. It is clear from the above provisions and the decisions of this Court that the judgment of the first appellate court has to set out points for determination, record the decision thereon and give its own reasons. Even when the first appellate court affirms the judgment of the trial court, it is required to comply (2015) 11 SCC 269 with the requirement of Order XLI Rule 31 and non-observance of this requirement leads to infirmity in the judgment of the first appellate court. No doubt, when the appellate court agrees with the views of the trial court on evidence, it need not restate effect of evidence or reiterate reasons given by trial court. Expression of a general agreement with the reasons given by the trial court would ordinarily suffice."

32) Having regard to the contents of the Order under

review, is it safe to say that the same is in compliance with

the law laid down in Malluru Mallappa (Dead) through

Legal Representatives V. Kuruvathappa And Others12.

33) It is no doubt true that, in view of the said judgment,

when the appellate court agrees with the views of the trial

court on evidence, it need not restate effect of evidence or

reiterate reasons given by trial court. But, accepting the

findings without reference to any evidence/documentary may

not be in tune with the law laid down by the Hon'ble Apex

Court in Malluru Mallappa [cited 12th supra]. It was a case

where the trial Court after appreciating the evidence on

record held that the Suit is barred by time and that the

Plaintiff was not ready and willing to perform his part of the

contract and accordingly dismissed the suit. The High Court

without discussing anything in the appeal before it, more so,

when questions of law and fact are involved, confirmed the

finding of the trial Court by a cryptic order. It was held that

the High Court failed to follow the provisions of Order XLI

Rule 31 of the CPC while deciding the appeal and,

accordingly, allowed the appeal, set aside the judgment and

remanded the matter back.

(2020) 4 Supreme Court Cases 313

34) But, here is a case where the situation, in our view is

different. Hence, the argument of the learned Counsel for the

Petitioner that the Judgment under review has to be reviewed

cannot be brushed aside and the same ahs to be accepted.

35) Though, the power of the High Court in a review is very

narrow and restricted, knowing the limitations, we shall now

deal with the case on hand.

36) In order to appreciate the rival contentions, it will be

appropriate for us to refer to paragraph nos. 21, 22 and 33

of the Order of the trial Court, which read as under:

"21. Therefore, a careful perusal of the dispute reveal that, both parties are claiming their title and possession from same ancestors i.e., G. Narayana Reddy in whose favor an extent of Ac.10.17 cents was assigned on 11.10.1926. It is also not in dispute that, said Narayana Reddy got six brothers. R1 to R3 have failed to explain, who Akkula Reddy is and how he succeeded to Ac.3.39 cents from original assignee, i.e., G. Narayana Reddy. It is not in dispute that Pedda Musali Reddy is one of brothers of Narayana Reddy, who is original assignee of Ac.10-17 cents in Sy. No. 3 of Kakkalapalli. But as there are disputes between both sides regarding ownership of petition schedule property, they got registered criminal cases against each other. However, mere registering of criminal cases do not give any valid title to either of them. One has to succeed the civil dispute basing on his documentary evidence also to dispose off this interlocutory application.

22. Given this background, when we look at available documentary evidence on record, petitioners have filed certified copy of sale deed executed by G. Pedda Musali Reddy in favor of G. Nallamma on 03.08.1943 vide Doc. No. 1937/1943. But, petitioners have not filed any Adangal, Pattadar Passbook and title deed to show that the land was in possession and enjoyment of either himself or his predecessors in interest. Similarly R1 to R3 also have not filed document to show that the ancestors of R3 were in possession and enjoyment of the property. Further no adangals or RSR is filed to show possession and enjoyment of land after the demise of original

assignee i.e., Narayana Reddy by either side to come to proper conclusion about the division of property among the brothers of Narayana Reddy. None of the parties to the dispute filed encumbrance certificate also.

33. Therefore, viewed from any angle, respondents failed to prove their valid title and possession as contended by them. On the other hand Ex.R6 also shows the possession of petitioner as he obtained electricity connection on 21.11.2017 itself, which was got disconnected by R3 on 13th August, 2019, without his knowledge. Therefore, a criminal case was got registered by the petitioner against R3, but its result is not available. Since at present by obtaining one year license under Ex.R18, which is not proper license as it is necessary to get permission of AHUDA for making construction in an extent of more than 300 sq. meters, R3 trespassed into petition schedule property and also got the electricity connection of petitioner disconnected unauthorisedly and started raising constructions inspite of granting interim injunction by this Court".

37) Further, the findings in paragraph No. 33 of the Order

of the trial Court would show that, it was R3 i.e., the 3rd

Appellant herein, who is in possession of the property and

started raising constructions. For that reason, the Plaintiff

filed an application restraining the defendants from raising

further construction, which clearly indicate that the

defendants is not in possession of the property. Having

regard to the findings in para 21 and 33 of the trial Court

order, a doubt arises as to who is in possession of the

property. There is no clear finding that the Plaintiff is in

possession of the property. If really Plaintiff was in

possession, there was no necessity to file an I.A. to restrain

the Defendants from raising further constructions. Non-

consideration of the application made along with the suit and

the findings referred to above, go to the root of the matter and

as such it can be said that there is an error apparent on

record. The ration laid down in Aribam Tuleshwar Sharma

[cited 8th supra], that error referred should strike one on a

mere looking at the judgment in Appeal and no long drawn

process of reasoning is required to notice the same squarely

applies to the case on hand.

38) Further, the observations made in paragraph no. 23

and 24 may also throw a doubt as to whether the Plaintiff

was in possession of the property, at the time of filing the

Suit, which are as under:

"23. On the other hand though the respondents contended that, the right and title of Pedda Hanumantha Reddy, who is father of respondents No. 1 and 2 was confirmed in O.S. 206/1997 which is marked as Exd.R8, the same is not evident from Ex.R8. In fact, R1 and R2 are parties to O.S. 206/1997. And in said suit, it was observed that R1 and R2 herein are not necessary parties to said suit filed for partition and also observed that R1 and R2 are entitled for exemplary costs. A passing observation was made in said suit that the father of R1 and R2 mortgaged 1/6th share i.e., Ac.1.75 cents on 27.11.1935 in suit Sy. No. 3 of Kakkalapalli village under Ex.B2 therein, but the same is not available before this Court. What happened to said mortgaged property i.e., whether the property was redeemed or not is also not available right now to come to proper conclusion. Further in said suit other defendants remained exparte and R1 and R2 herein took a plea that said suit is a collusive suit. There is no record to show the boundaries of that mortgaged property right now and so also when it was redeemed and by whom. It is not in dispute that, father of R1 and R2 is one of the brothers of Narayana Reddy, who is original assignee and so also Pedda Musali Reddy from whom petitioner is claiming his right and title.

24. To prove his possession after his purchase, petitioner also marked electricity receipt in his name under Ex.P6 and also photo. Ex.P7 showing a shed along with Electricity Meter Service No. 7111201165438. Ex.P5 is original house tax receipt in the name of petitioner issued by Kakkalapalli

Panchayat Secretary. On the other hand respondent filed Ex.R6 showing that Electricity connection in the name of petitioner/plaintiff was got disconnected at the request of third respondent on 13th August, 2019. R3 also marked Ex.R5 showing that, house bearing No. 1-14-1 of Kakkalapalli Grama Panchayat does not belong to petitioner and said door number with assessment No. 3337 was given to one G.Ravindra, S/o. Late G. Chennaiah and said house is situated in Sy. No. 3/1 in an extent of 3.34 cents of land".

39) A reading of paragraph No. 23 would show that, O.S.

No. 206/1997 came to be filed for partition and though R1

and R2 were parties to the said Suit, it was made clear that,

they were not necessary parties to the said Suit and that a

passing observation was made that father of R1 and R2

mortgaged 1/6th share, but no material to that effect was

placed before the Court. Further, the observations/findings of

the trial Court would show that, there is no material as to

whether the property was redeemed.

40) Similarly, a reading of paragraph no. 24 of the trial

Court judgment would show that, both the parties filed

documents in the form of Ex.P5 and Ex.P7 vis-à-vis Ex.R6,

R3 and R5 to establish possession. Strangely, no finding is

given by the trial Court on these documents. Order under

review is also silent on these aspects. Hence, there is no

concrete evidence on record to show that the plaintiff was in

possession of the property as on the date of filing of the Suit.

If really the Plaintiff was in possession of the property, as

contended by the Respondent herein, there was no need for

the Plaintiff to file a I.A., along with suit, to prohibit the

Defendants from proceeding further with the construction or

an I.A. restraining the Defendants from alienating the

property. These two applications are sufficient, in our view, to

show that the Plaintiff is not in possession of the property on

the date of filing the suit.

41) It is no doubt true that, it may not be permissible for us

to have a relook into the evidence in a review, but only one

document, which we intend to refer to is Ex.R15 - report

given by the Tahsildar.

42) A reading of Ex.R15 - report, dated 08.11.2019, would

show that the Appellant No. 3 herein is in possession of the

property. The report also shows that there is a borewell and

electrical connection and, as such, the name of the 3rd

Appellant came to be incorporated in webland adangal. This

Order is said to have been challenged before the Joint

Collector, but the same was rejected. The order or rejection

by the Revisional Authority is as under:

"After prima facie examination of the records made available to this authority and written arguments, the request of the revision petitioner to grant interim suspension of the orders passed in proceedings in Rc. No. B/971/2019 dated 08.11.2019 of the Tahsildar, Ananthapuram in which mutations have been carried out in favor of Smt. G. Usha Rani W/o.Krishna Reddy [respondent] in respect of S.No.3-B1 extent 1.75 acres of Kakkalapalli Village of Ananthapuram Mandal is hereby rejected".

43) Therefore, Ex.R15 clearly indicate that by the date of

filing of the Suit itself, the Defendants are in possession of

the property.

44) From the above, it is clear that the findings of the trial

Court would show that even the trial Court failed to say

beyond doubt as to who is in possession of the property. On

the other hand, the I.A's filed by the Plaintiff along with Suit

would indicate that the Defendants are in possession of the

property.

45) Having regard to the above, we hold that there is an

error apparent on the face of the record and sufficient reason

is made out to allow the Review Applications.