Rule 1 Cpc. Sri Yalamarthi ... vs V.Narayana Reddy
2023 Latest Caselaw 3195 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

                  REVIEW I.A.No.1 of 2020
                            in
                 APPEAL SUIT No.182 of 2005
                           And
                  REVIEW I.A.No.1 of 2020
                            in
                APPEAL SUIT No. 1192 of 2017


COMMMON ORDER:

      These two review petitions are filed under Order XLVII

Rule 1 CPC. Sri Yalamarthi Anjaneyulu is the review petitioner

in both the matters.

2.    Four plaintiffs joining together filed OS.No.533 of 1996 as

against four defendants. Defendants raised a counter claim.

After due trail by a judgment dated 22.02.2005, learned III

Additional Senior Civil Judge, Vijayawada decreed the reliefs in

favour of the plaintiffs and dismissed the reliefs claimed by the

defendants in their counter claim.

3.    As against that judgment, defendant Nos.1 to 3 preferred

two appeals. They preferred A.S.No.182 of 2005 questioning the

reliefs granted in favour of the plaintiffs by the trail Court. They

preferred A.S.No.1192 of 2017 questioning the dismissal of their

counter claim by the trial Court.
                                  2
                                                     Dr. VRKS, J
                                        A.S.No.182 of 2005 &1192 of 2017


4.    Both the first appeals were preferred before this Court

and a learned judge of this Court heard both the appeals

together and by a common judgment dated 03.03.2020

dismissed both the appeals and thereby the judgments and

decrees passed by the learned trial Court were confirmed.

5.    Defendant No.2 in O.S.No. 533 of 1996 is appellant No.2

in AS.No.182 of 2005 as well as in AS.No.1192 of 2017. He

preferred these two review petitions before this Court. The

plaintiffs   and   the   remaining   defendants    are   arrayed     as

respondents.

6. Learned counsel for review petitioner and learned counsel

for respondents/plaintiffs/respondents in first appeal submitted

their arguments and cited legal authorities.

The prayer in the review petitions is extracted here:

" It is prayed that this Hon'ble Court may be pleased to review the common Judgment & Decree passed by this Hon'ble Court in AS No.182/2005 and AS No.1192/2017, dated 3.3.2020, and pass such other order or orders as may deem fit and proper in the circumstances of the case."

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

During the course of hearing learned counsel on both

sides cited the following rulings about the manner in which

review jurisdiction could be exercised by this Court.

1. S.Madhusudhan Reddy V. V.Narayana Reddy1

2. Rejendra Kumar V. Rambhai2

3. Meerabhanja(SNT) V. Nirmala Kumari

Choudhury(SNT)3

Section 114 and Order XLVII of CPC provide a scheme for

hearing a review. It is appropriate to notice Order XLVII Rule 1

of CPC.

Order XLVII Rule 1 CPC :-

1.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 which 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

2022 (SC) 734

2007(15) SCC 513

1995 (1) SCC 170

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

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.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation: 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.

"Expounding the review jurisdiction in Section 114 CPC and Order XLVII Rule 1 CPC in the above three rulings, their Lordships of the Hon'ble Supreme Court of India laid down various principles which bind this Court. These principles are as mentioned below.

7. A review application will be maintainable if:

On discovery of new and important matters or evidence which, after exercise of due diligence, were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made.

On account of some mistake or error apparent on the face of the record.

For any other sufficient reason.

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

A review of an earlier order cannot be made unless the

Court is satisfied that the material error which is manifested on

the face of the record would result in miscarriage of justice or

undermine its soundness. Glaring omission or patent mistake

crept in the earlier order by judicial fallibility would require

exercise of review jurisdiction. If the stated error is not self-

evident and one that could be detected by process of reasoning

then it cannot be described as an error apparent on the face of

the record and in such circumstances, the review jurisdiction

shall not be exercised. A distinction shall always be maintained

between a mere erroneous decision and a decision which could

be characterised as vitiated by error apparent. A review is not

an appeal. A review is by no means an appeal in disguise

whereby an erroneous order is re-heard and corrected, but lies

only for patent error. The power of review can be exercised for

correction of a mistake but not to substitute a view. The mere

possibility of two views on the subject is not a ground for review.

An error of inadvertence may enable exercise of review

jurisdiction "Any other sufficient reason" appearing in Order

XLVII Rule 1 CPC must mean a reason sufficient on grounds at

least analogous to those specified in the rule. Error apparent on

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

the face of the proceedings is an error which is based on clear

ignorance or disregard of provisions of law. The review

jurisdiction may not be exercised on the ground that the

decision was erroneous on merits. That would be the province of

appeal jurisdiction. An order or decision cannot be corrected

merely because it is erroneous in law or on the ground that a

different view could have been taken by the Court.

8. In the first cited rulings, their Lordships also stated that it

is not open to the Court to re-appreciate the evidence and reach

to a different conclusion even if that is possible. The argument

was advanced about certain pieces of evidence to demonstrate

that in the light of such evidence the conclusions reached by the

Court cannot be supported, their lordships stated that such

submissions cannot be permitted to be advanced in a review

petition stating the rule of law, their lord ships said that to

permit the review petitioner to argue on a question of

appreciation of evidence would amount to converting a review

petition into an appeal in disguise.

9. In the second cited ruling explaining the principle of error

apparent on the face of the record, their lordships held that

where without any elaborate argument one could point to the

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

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. In the third stated ruling their lord ships found incorrect

exercise of review jurisdiction in the context of the fact that the

reviewing Court instead of considering the aspect whether the

judgment under review suffered from any error apparent on the

record, it went to re-appreciate the evidence and on such re-

appreciation of evidence, it re-determined the facts and reached

to different conclusions. That was found to be incorrect exercise

of review jurisdiction.

11. It is in the context of the above legal principles, the

grounds urged in the review are to be noticed here:

In both the review petitions, the grounds urged are same

and similar.

1. The Judgment & Decree of this Hon'ble Court in AS No.182/2005 and AS No.1192/2017 is contrary to law, weight of evidence and facts & probabilities of the case.

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

2. It is submitted that the error apparent on the record is that the evidence of DW2 has not at all been taken into consideration and no discussion.

3. It is submitted that the error apparent on the record is also that only a part of evidence of DW1 was taken into consideration but not the other part.

4. It is submitted that this Hon'ble Court committed an error apparent on the record by relying upon Ex.A8 Adangal which in fact shows that there were constructed houses to conclude that Smt.Namburi Lakshmamma was the owner of the land when A.P. Record of Rights Act, 1971 is applicable only to agriculture lands.

5. It is submitted that this Hon'ble Court also committed error apparent on record with regard to Ex.A10 ULC proceedings when they do not confer any title.

6. It is submitted that this Hon'ble Court erred in relying upon evidence of DW4 who is none other than the grandson of Smt.N.Lakshmamma and on the face of it, it shows that there is a collusion.

7. It is submitted that this Hon'ble Court erred in relying upon evidence of DW1 and giving a finding that DWI has been supporting the case of the plaintiff. But a reading of the affidavit filed in lieu of Chief Examination by the Defendant No.1/ DWI, it shows that DW1 specifically at Para No.3 stated that the said Namburi Lakshmamma never lived in the site nor made any construction.

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

8. It is submitted that the Plaintiff's case is that they have purchased the property from Smt.Namburi Lakshmamma under registered sale deeds. When such is the case the legal heirs of Namburi Lakshmamma ought to have been made parties since a decree in OS No.967/1990 wherein the 4th defendant herein who is the GPA holder of Smt.Namburi Lakshmamma and also grandson of Namburi Lakshmamma, had executed the documents and stood ex-parte supporting the claim of the defendants herein in OS No.967/1990.

9. It is submitted that at Para No.36 this Hon'ble Court came to a conclusion that since the 4th defendant was not put to cross examination and he is silent in his testimony with regard to the possession of the defendants 1 to 3, the case of the appellant is false. In fact the DW4's evidence shows that in chief examination itself admitted that the sale consideration has not been shown in Ex.Al to A4 which perse show that it is a sham transaction. In the course of evidence DW4 also stated that Lakshmamma acquired the property under a Will. When such is the case, the legal heirs of Lakshmamma would be the necessary parties since Lakshmamma had executed Ex.A1 to A4 through GPA holder DW4. The nature of prayer in the suit is claim for possession of property without seeking for declaration.

10. It is submitted that this Hon'ble Court committed an error apparent on the record by ignoring the fact that

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

without impleading Lakshmamma's legal heirs as parties to the suit, the suit is not maintainable.

11. It is submitted that at Para No.22 this Hon'ble Court has come to a conclusion that the Defendants 1 to 3 admitted the ownership of Smt.N.Lakshmamma, which in fact is contrary to the record for the reason that the Defendant No.2 has been claiming that it is a Poramboke land. Merely because DWI had made some admissions with regard to the title of the said Lakshmamma, the same cannot be made binding on DW2.

12. It is submitted that this Hon'ble Court did not at all consider the evidence of DW2 the 2nd appellant herein and DWI. When a part of evidence of DWI was considered to be true in relation to the title of the property, the Court committed error apparent on record by not taking into consideration the evidence of DWI and DW2 that they have been residing in the site since 1975 i.e., 15 years prior to the filing of the suit.

12. A reading of the above grounds urged would indicate that

the review petitioner contends incorrect appreciation of evidence

as an error apparent on the record. With great spirit, learned

counsel Sri C.Raghu appearing for the review petitioner

submitted elaborate arguments to persuade this Court that the

judgments under review suffer from errors apparent on the

record. Learned counsel argued that the manner in which the

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

Court directed itself in deciding the appeals itself is a matter for

review.

13. Learned counsel appearing for respondents/plaintiffs

E.V.V.S.Ravi Kumar submits that the lengthy argument

advanced for the review petitioner itself is indicative of the fact

that the alleged error is not apparent on the record and the

submissions of the review petitioner would necessarily drive the

Court to dive deep into the matter and re-appreciate the

material on record and that itself is a ground to reject the

review. Learned counsel further stated that in terms of Order

XLVII Rule 1 CPC only when an appeal is not preferred a review

is maintainable. But, in the case at hand an appeal was

preferred before the Hon'ble Supreme Court of India vide Diary

No. 19556 of 2021 and there were certain defects in those

papers and therefore by an Order dated 03.11.2022 eight weeks

time was granted to cure the defects. Be it noted that during the

course of hearing a memo dated 16.11.2022 filed by the

defendants in the suit before the executing Court indicating

these facts and also downloaded copies of order granted by the

Hon'ble Supreme Court of India to rectify the defects, are filed

and the correctness of contents of those papers and the factum

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

of preferring an appeal before the Hon'ble Supreme Court of

India are admitted by the revision petitioner. Learned counsel

for respondents also argued that the judgments under review

are not passed by the judge who is hearing this review and the

Hon'ble judge who passed the judgments under review demitted

the office and in such an event a review cannot be maintained

before another judge and the only recourse available is to prefer

an appeal. It is on these submissions, he argued for dismissal of

the review petitions.

14. To appreciate the grounds urged in the review the dispute

among the parties as raised before the Court below and as

appreciated by this Court while disposing of the appeals require

a brief mention here. The dispute is with reference to an extent

of 800 square yards of open site in R.S.No.97/3 along with

superstructure there on situated at Ayodhya Nagar, Vijayawada

and this was out of 1200 Square yards contained in A1,B1,C1

and D1 plots of 300 square yards each with boundaries

specifically given in the plant schedule.

In the suit the plaintiffs made the following prayers:

1. Directing the defendant Nos.1 to 3 to vacate and deliver vacant possession of an extent of 800 Square Yards of site

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

and super-structures if any in R.S.No.97/3 said to be in the possession of the defendants with unspecified boundaries as per the judgment and decree in O.S.No.967/90

2. For a declaration that the judgment and decree made in O.S.No.967/90 on the file of principal District Munsiff Court, Vijayawada dated 27.09.1996 is not binding on the plaintiffs

3. For a permanent injunction restraining the defendant Nos.1 to 3 their men, and agents from ever raising any structures in the plaint schedule property in any manner.

4. For the costs of the suit and

5. For grant of such other relief or reliefs as this Hon'ble court deems fit and proper in the circumstances of the case.

15. The gist of the claim of the plaintiffs was that under 4

registered sale leads of the year 1995, they purchased the

property from its original owner Smt. N.Lakshmamma through

her General Power of attorney holder. The defendants in the suit

in their written statement averred that the property is not

private property and it is Government poramboke and as it was

lying vacant, they occupied it somewhere around in the year

1975 and they have been in possession of it. They claimed that

they perfected their title by adverse possession. It is on that

premise, they raised their counterclaim seeking for declaration

of their right, title and interest as they perfected their title by

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

adverse possession and they also sought for consequential

permanent injunction against the plaintiffs from interfering with

their possession and enjoyment. One of the contentions raised

in the written statement is about O.S.No.967 of 1990 which was

a suit filed for permanent injunction by the defendants as

against GPA holder of Smt.N.Lakshmamma.

16. On the above pleadings, learned trial Court settled the

following issues for trial:

Issues:-

1. Whether the plaintiffs are entitled for a declaration that the judgment and decree in O.S.No.967 of 90 are not binding on them?

2. Whether the plaintiffs are entitled for recovery of possession?

3. Whether the plaintiffs are entitled for permanent injunction as prayed for?

4. To what relief?

Additional Issues:-

1.Whether the claim of the defendants (plaintiff in counter claim) is barred by limitation?

2. Whether the defendant (Plaintiff in the counter claim) perfected their title by way of adverse possession?

3.Whether the defendants (plaintiff in the counter claim) entitled for injunction as prayed for?

4.To what relief?

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

At the trial there is oral evidence of PWs.1,2and3 for

plaintiffs and there is the oral evidence of DWs.1 to 4 for

defendants/counter claimants and for plaintiffs Exs.A1 to A14

and for defendants Exs.B1 to B4 were marked. After hearing

arguments on both sides and after considering the material on

record, the learned trial Court decreed the suit of the plaintiffs

and dismissed the counter-claim raised by the defendants.

17. In the two appeals preferred by the losing parties, Hon'ble

Sri Justice M.Venkata Ramana, Hon'ble judge of this court on

hearing the submissions of learned counsel on both sides and

on considering the material on record recorded the following

points for determination:

1. What is the effect of a decree for perpetual injunction granted in favour of the defendant Nos. 1 to 3 in O.S.No.967 of 1990 vis-a- vis the claim of the plaintiffs, of right, title and interest to the suit plot alleged to have been acquired under Ex.A1 to Ex.A4?

2. Whether the defendant Nos.1 to 3 perfected their right and title to the suit plot by adverse possession and against the interest of the plaintiff Nos.1 to 4 and their predecessor-in-title in respect of the same?

3. Whether relief of possession without praying for declaration of right and title, sought by the plaintiffs against the defendant Nos.1 to 3 is proper and if such relief be granted?

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

4. Whether the relief of permanent injunction sought by the plaintiffs and the defendant Nos.1 to 3 against each other in respect of the suit plot, be granted?

5. Whether the defendant Nos.1 to 3 are entitled for declaration of right to the suit plot, in the circumstances stated in the counter-claim?

6. To what relief?

18. The learned judge considered the evidence in detail and

noted the precedent and by giving elaborate reasons reached to

conclusions and found that the trial Court's findings on fact and

law were correct. The learned judge answered all the points

against the appellants/defendants and dismissed both the

appeals. It is those judgments that are sought to be reviewed

and the grounds urged in the review have already been noted in

the earlier paragraphs. Before proceeding further, one should

notice Order XLI Rule 31 CPC which reads as below.

Order XLI Rule 31 CPC:-

"The judgment of the Appellate Court shall be in writing and shall state-

a. the points for determination;

b. the decision thereon;

c. the reasons for the decision; and d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled,

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."

The law as expounded and settled is that when the

appellate Court agrees with the view of the trial Court on the

evidence, it is not its duty to restate the effect of the evidence or

to restate the reasons given by the trial Court. Expression of

general agreement with reasons given by the Court, the decision

of which is under appeal, would ordinarily be suffice. It is not

necessary that the judgement in the appeal to record all the

facts in great detail nor is it necessary that it should deal

mechanically with all the points. It is sufficient if it shows that

the Court has brought its independent judgement to bear on the

decision(vide Girja Nandini V. Bijendra Narain Choudhury4).

19. In the light of the above principles, the grounds urged in

the review shall be now considered. As could be seen from the

record, in the disputed property there are structures. That is a

fact admitted on both sides. That is a fact recorded by the trial

Court as well as this Court. Defendants in the suit through their

pleadings claimed that it was a Government poramboke and

they occupied it. However, at the trial they changed their

AIR 1967 (sc) 1124

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

version and they admitted that the original ownership was

vested with lakshmamma's husband and others and thereafter

Lakshmamma became the owner and through her register

General Power of Attorney she sold the properties to the

plaintiffs. These factual findings are undisputed. It is in that

context, the grounds urged are raised. Ex.A8 is Adangal. Ex.A10

is proceedings issued by Urban Land Ceilings Authority.

Learned counsel for review petitioner argued that an adangal as

per AP Record of Rights Act, 1971 is only for Agricultural lands

and when there were structures in the lands it was incorrect on

part of this Court in considering Ex.A8-Adangal. Ex.A10 does

not confer any title but that was erroneously considered. Both

the contentions are incorrect. At Para No.20 of the judgement

under review, Exs.A8 and A10 were considered only to show

and conclude that by virtue of those documents, it was

established that the property in dispute is a private property

and not Government land or Government poramboke. Thus,

these two documents are used or appreciated only to find out

the correctness or otherwise of the contention raised in the

written statement/counterclaim that it was Government land.

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

The appeal judgement has not declared title of the plaintiffs in

the suit based on either Exs.A8 or A10.

20. It is contended that the evidence of DW.4 should not be

relied upon as he was grandson of Smt.N.Lakshmamaa and was

in clear collusion with plaintiffs. This argument invites

appreciation of evidence which is impermissible in a review.

However, it may be noted here that the said DW.4 is none other

than the grandson of Smt.N.Lakshmamma and he was the

defendant No.4 in the suit. His evidence was considered by the

trial Court as well as this Court in the appeal only to show that

by his evidence Exs.A1 to A4 registered sale leads and their

execution and passing of consideration etc., were proved.

21. It is argued for the revision petitioner that the evidence of

DW.1 was considered in part and evidence of DW.2 was not at

all considered. This again is asking for re-appreciation of the

evidence. This court has gone through the evidence of DWs.1

and 2. Defendant No.1 as DW.1 and defendant No.2 as DW.2.

Their evidence in chief is similar on all important facts. Since

the appeal was heard and considered and it was in broad

agreement with the judgement of the trial Court and since the

evidence of DWs.1 and 2 is in effect repetitive, there was no

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

need for the judge hearing appeal to elaborate the repetitive

evidence of witnesses. The judgement in the appeal indicates a

thorough consideration of the entire oral and documentary

evidence. Therefore, reference to some witnesses by itself can

never be stated to be an error apparent on the record. At any

rate nothing could be going further even if DW.2 evidence is

considered in its entirety as that could not have altered the

conclusions reached at in the appeal. Therefore, even on merits

the review petitioner failed to disclose any error apparent on the

record and failed to show any other sufficient reason to review

the judgments impugned here.

22. On two other grounds, these review applications shall be

dismissed.

1.As indicated in the earlier paragraphs, an appeal was

preferred before the Hon'ble Supreme Court of India by the

losing defendants in the suit and in that way in terms of order

XLVII Rule 1(1) CPC, this review cannot be maintained.

2.Order XLVII Rule 1(1)(a): Honorable justice M.Venkata

Ramana heard and disposed of A.S.No.182 of 2005 and

A.S.No.1192 of 2017. The hon'ble judge demitted the office.

Thereafter, these review petitions are filed. The normal

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

principle is that a judge who has rendered the judgement need

to consider the efficacy of review. When a learned single judge of

this Court subsequent to rendering the appeal judgments

demitted the office, whether another single judge could hear the

review was a question that was answered in the negative by the

Hon'ble Supreme Court of India in Devaraju Pillai V. Sellayya

Pillai5

For the above reasons, this Court finds that under

misplaced conceptions, these review petitions are filed and there

are no merits in them.

In the result, both review petition No.1 of 2020 in

A.S.No.182 of 2005 and review petition No.1 of 2020 in

A.S.No.1192 of 2017 are rejected in terms of Order XLVII Rule

4(1) CPC by confirming the Common Judgment dated

03.03.2020 of this Court. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 16.06.2023 DVS

(1987)1 SCC 61

Dr. VRKS, J A.S.No.182 of 2005 &1192 of 2017

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

REVIEW I.A.No.1 of 2020 in APPEAL SUIT No.182 of 2005 And REVIEW I.A.No.1 of 2020 in APPEAL SUIT No. 1192 of 2017

Date: 16.06.2023

DVS