Bombay High Court
Sou. Jyoti W/O. Arunrao Bhongade ... vs Sumant S/O. Pandhari Chafle And ... on 29 October, 2021
Bench: S. M. Modak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CIVIL APPLICATION [MCA] NO.1039 OF 2016
IN
SECOND APPEAL NO.57 OF 2016 (D)
Appellants/Applicants : 1] Sou. Jyoti w/o Arunrao Bhongade,
(Original Defendant/ Aged about 45 years, Occupation : Agriculture,
Respondent No.5) R/o Kanholibara, Tahsil Hingna, District Nagpur.
(Original Defendant/ 2] Shri Kishor s/o Mannalal Sanchariya,
Respondent No.2) Aged about 54 years, Occupation : Agriculture,
R/o Anji (Mothi), Tahsil & District Wardha.
- Versus -
Respondents/ : 1] Sumant s/o Pandhari Chafle,
Non-Applicants Aged about 27 years, Occupation : Student,
(Original Plaintiff/ R/o Sukli (Ubar), Tahsil Arvi, District Wardha.
Appellant No.1)
(Original Plaintiff/ 2] Sou. Manisha w/o Naresh Nistane,
Appellant No.2) Aged about 36 years, Occupation : Household,
R/o Telipura, Wardha, Tahsil & District Wardha.
(Original Plaintiff/ 3] Sou. Bharti w/o Bhaskarrao Dadhe,
Appellant No.3) Aged about 34 years, Occupation : Household,
R/o Ganesh Nagar, Near Hanuman Mandir,
Wardha, Tahsil & District Wardha.
(Original Plaintiff/ 4] Ku. Bhakti d/o Pandharinath Chafle,
Appellant No.4) Aged about 28 years, Occupation : Student,
R/o Sukli (Ubhar), Tah. Arvi, District Nagpur.
(Original Defendant/ 5] Shri Pandhari s/o Yadavrao Chafle,
Respondent No.1) Aged about 58 years, Occupation : Agriculture,
R/o Pulai, Tahsil & District Wardha.
(Original Defendant/ 6] Sou. Jijabai w/o Pandhari Chafle,
Respondent No.3) Aged about 55 years, Occupation : Household,
R/o Sukli (Ubhar), Tahsil Arvi, District Wardha.
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(Original Defendant/ 7] Sau. Swati w/o Dhirajrao Kawale,
Respondent No.4) Aged about 32 years, Occupation : Service,
R/o D-34, Maroti Building, Shruti Complex,
Sector-2, Near Bhakti Vedant Hospital,
Meera Road, East Thane, Mumbai.
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Shri P.D. Randive, Advocate for the Applicants/Appellants.
Shri M.P. Dhruv, Advocate for Non-Applicant/Respondent Nos.1 to 4 & 6.
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CORAM : S.M. MODAK, J.
RESERVED ON : 11th OCTOBER, 2021.
PRONOUNCED ON : 29th OCTOBER, 2021.
J U D G M E N T :-
Heard learned Advocate Shri P.D. Randive for the
applicants/appellants and learned Advocate Shri M.P. Dhruv for
non-applicant/respondent Nos.1 to 4 & 6.
02] This is an application for review by the appellants in the second
appeal. Defendant No.2 is the original purchaser on the basis of one of the sale-
deeds executed by defendant No.1-Pandharinath. Whereas, defendant No.5 is a
subsequent purchaser. Plaintiff Nos.1 to 4 are the legal heirs of defendant No.1-
Pandharinath. During his life time, they have challenged various sale-deeds
executed by defendant No.1 and they have asked for partition of the suit land.
mca.1039.16.jud 3/13
03] Their suit was dismissed by the trial Court, whereas the first appellate
Court in an appeal filed by the plaintiffs reversed the judgment and decreed the
suit. Amongst the five defendants, only defendant Nos.2 & 5 have preferred
Second Appeal No.57/2016. This Court as per the judgment dated 25/08/2016
dismissed the second appeal without admitting and without framing substantial
questions of law.
04] This is the grievance of the applicants that no substantial questions of
law were framed. One more ground taken is "this Court has not properly
considered the observations of the Hon'ble Supreme Court in the case of
Bhanwar Singh vs. Puran and Ors. - AIR 2008 SC 1490". To support this
contention, the observations made by the Hon'ble Supreme Court in subsequent
judgment in the case of Uttam vs. Saubhag Singh and others - 2016 DGLS (SC)
146 is relied upon. The observations in the case of Uttam (supra) were very
much there when this Court decided the second appeal. The learned Advocate
for respondent Nos.1 to 4 & 6 opposed the application on the ground that there is
no error apparent on the face of record and dismissal of the second appeal
without framing substantial questions of law is justified. Further more, it is
submitted that the substantial questions of law need to be formulated, if this
Court might have reversed the decision of the first appellate Court.
05] So, the following points arise for my determination:
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S.N. POINTS FINDINGS
(i) Whether not framing of substantial questions In the affirmative
of law amounts to an error apparent on the
face of record?
(ii) Whether there can be said to be error apparent In the negative
on the face of record for the reason that the
observations in the case of Bhanwar Singh
(supra) were not considered properly?
(iii) What order? As per final order
As to Point No.1 :
06] For appreciating the grievance, it will be necessary to consider the
facts only for the limited purpose. Yadavrao Chafle was the common ancestor. He
expired in the year 1968 leaving behind some properties. He is survived by two
sons and wife. Defendant No.1-Pandhari is one of the sons, whereas,
Purushottam is the another son, to which we are not concerned in the
proceedings. Jijabai-defendant No.3 is the wife. Plaintiff Nos.1 to 4 are the
daughters of defendant No.1-Pandhari. Swati-defendant No.3 is the another
daughter. There was a partition in between two brothers i.e. defendant No.1-
Pandhari and his brother Purushottam in the year 1970. Defendant No.1-
Pandhari got some of the properties. He sold the land vide three different sale-
deeds. Defendant No.2 is the purchaser, whereas defendant No.2 in turn sold the
suit property to defendant No.5.
mca.1039.16.jud 5/13
07] It is the bone of contention of the plaintiffs before the trial Court that
the property devolved on Pandhari does not belong to him as exclusive property,
but the plaintiffs were having right in it. So, the issue before the trial Court was,
whether the property acquired on partition is a separate property or joint family
property. The trial Court gave a finding that the suit property is an ancestral
property, however, the suit came to be dismissed as other points could not be
proved by the plaintiffs. The first appellate Court gave a finding in favour of the
plaintiffs and confirmed the findings about nature of property as ancestral
property. Accordingly, the suit came to be decreed. This judgment was
challenged by defendant Nos.2 & 5 by way of second appeal.
SECOND APPEAL
08] I have perused the record of the second appeal in order to ascertain at
what stage the second appeal is dismissed. This Court has issued a notice to the
respondents vide order dated 24/02/2016. Respondent Nos.1 to 6 were served
and service of notice to respondent No.7 was awaited. When the matter came
before the Court on 25th August, 2016, the only appellants through their
Advocate were present. None of the respondents have appeared. In order to
ascertain, is there any error apparent on the face of record?, I have perused the
judgment in the light of grounds of the review taken before me. This Court has
given following reasons:
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i. The judgment in the case of Bhanwar Singh is referred in paragraph
No.3.
ii. In paragraph 4, this Court observed that plaintiff No.1 (the son of
defendant No.1) was born in the year 1986-87 and alienation dated
04/01/2007 is challenged. This Court concluded that the suit property
became separate property in the hands of defendant No.1, cannot be
accepted.
iii. The facts in the case of Bhanwar Singh are considered in paragraph 5.
iv. In paragraph 6, this Court concluded that after the birth of plaintiff
No.1 in the year 1986-87, the property in the hands of Pandhari
became joint family property and, hence, alienation without legal
necessity was held not permissible.
09] For the above reason, this Court opined that no substantial questions
of law had arisen. Both the learned Advocates have relied upon the various
judgments on the point of scope of review under Section 114 read with Order 47
Rule 1 of the Code of Civil Procedure.
(1) SASI (dead) through L.Rs Vs. Aravindakshan Nair and others -2017(5)
Mh.L.J. 550.
mca.1039.16.jud 7/13
(2) Chairman and Managing Director, Central Bank of India and Ors. Vs.
Central Bank of India SC/ST Employees Welfare Association and Ors. - AIR
2016 SC 326.
(3) Park View Cooperative Housing Society Limited Vs. Union of India - 2014
BCI 489.
(4) Haryana State Industrial Development Corporation Ltd. Vs. Mawasi and
Ors. Etc. - AIR 2012 SC 3874.
(5) Inderchand Jain (D) through L.Rs. Vs. Motilal (D) through L.Rs. - 2009
DGLS (SC) 1067.
The above judgments are relied upon by learned Advocate Shri Randive for the
applicants, whereas learned Advocate Shri Dhruv for the non-applicants relied
upon the following judgments:
(1) Chandrabhaga Ananda Kudle and another Vs. Proposed Sanjay Sahakari
Grah Nirman Sanstha Maryadit, Sangli and others - 2019(6) Mh.L.J. 184.
(2) Jijabai Namdev Satardekar and others Vs. Luis Sales De Andrade E Souza -
2019(4) Mh.L.J. 906.
(3) Esther W/o Ashok Yeshu Sankwalkar Vs. Manuel Filandro De Carvalho -
2017 (3) Mh.L.J. 127.
(4) Saraswatibai Mahadeorao Pawade and others Vs. Harishchandra
Mahadeorao Pawade and others - 2017 (3) Mh.L.J. 133.
(5) Asharfi Devi (D) thr. L.Rs. Vs. State of U.P. and others - 2020 (1) Mh.L.J.
133.
(6) Water and Land Management Institute, Kanchanwadi, Aurangabad Vs.
Sudhakar Namdeo Gaikwad and others - 2020 (2) Mh.L.J. 244.
mca.1039.16.jud 8/13
(7) Apparaju Malhar Rao vs. Tula Venkataiah @ Venkat Rao - 2018(2) Mh.L.J.
14.
10] If we peruse the judgments relied upon by both the sides. The
following principles emerge:-
(a) Error has to be self-evident and is not be found out by process of
reasoning.
(b) If the decision by the writ Court was rendered on the basis of wrong
authority, error is self-evident. If the decision of the first appellate
Court is reversed by not framing the substantial questions of law, it
certainly amounts to error apparent on the face of record.
(c) An error which has to be established by long drawn process of
reasoning can hardly be said to be an error apparent on the face of the
record.
(d) The error should be apparent and if continued would lead to
continuous failure of justice. When, no new or important evidence was
brought, in spite of due diligence, then it does not amount to error
apparent on the face of the record.
(e) There is a difference in between review jurisdiction and appellate
jurisdiction.
mca.1039.16.jud 9/13
(f) The review would not mean an appeal in disguise for correcting an
erroneous decision.
(g) The review does not lie if it was filed on the basis of old and overruled
arguments.
(h) Review application should be placed before the same judge.
Not framing substantial questions of law:
11] Learned Advocate Shri Dhruv is right in his submission that while
dismissing the second appeal, this Court has not reversed the decision of the first
appellate Court. These were the facts in case of Park View Cooperative Housing
Society, as referred above. It was held in that case, the judgment of the first
appellate Court cannot be reversed without framing substantial questions of law.
It is also true that in case of Apparaju Malhar Rao vs. Tula Venkataiah @ Venkat
Rao - 2018(2) Mh.L.J. 14, the Hon'ble Supreme Court has set aside the judgment
passed by the High Court. By the impugned judgment delivered in the second
appeal, the High Court set aside the judgment passed by the first appellate Court.
In that case, though the submission were recorded, but substantial questions of
law were not formulated.
mca.1039.16.jud 10/13
12] In order to ascertain, whether the mandatory requirement of
formulating of substantial questions of law has been followed or not, I have
perused the judgment of the trial Court and the first appellate Court. The
following facts emerge:-
(a) Defendant No.1-Pandhari/vendor has not contested the suit. It was
contested by purchasers. The trial Court concluded that the suit
property is an ancestral property.
(b) Whereas, the first appellate Court also confirmed the findings of the
trial Court that the suit property is an ancestral property.
13] It will be material to consider the reasoning given by the first appellate
Court, while confirming those findings. In paragraph 12, the appellate Court
observed that "defendants have not filed cross appeal, hence, the findings of the
learned trial Court attains finality. So, one thing is clear that the suit property is
ancestral property". It is important to note that the said appeal was filed by the
plaintiffs and present applicants were the respondents therein. There was no
need to file a cross appeal, because there is no decree against the present
applicants. In fact the suit was dismissed. As per the provisions of Order 41 Rule
22 of the Code of Civil Procedure, the respondents are having two options, first
one, to support the findings which are in their favour and second one, to
mca.1039.16.jud 11/13
challenge the findings which ought to have been in their favour. So, there was no
need to file a cross appeal. On this background, I have perused the memo of
second appeal and the proposed substantial questions of law. One of the
proposed question is -
"Whether after the death of Yadavrao, property inherited by Pandhari
becomes his individual property or ancestral property?" (Question B).
14] From the above, it is clear that the appellants were desirous of
challenging those findings. On this background, when the judgment passed by
this Court is perused, second appeal was dismissed mainly for the reason that
after the birth of plaintiff No.1, the property becomes ancestral property in the
hands of defendant No.1 and as such he cannot alienate it solely. This Court feels
that if substantial questions of law could have been framed, parties could have
afforded on opportunity to address the Court at length in order to show
perversity if any.
15] It is no doubt true that the second appeal was not disposed of without
issuing notice to the respondents. It is also true that while issuing notice, no
substantial questions of law were framed, but plain notice was issued. It is no
doubt true that on 25/08/2016, the respondents have not appeared. However, it
is no doubt true that the first stage of admission has crossed. The Hon'ble
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supreme Court in the case of Ashok Rangnath Magar vs. Shrikant Govindrao
Sangvikar - (2015) 16 SCC 763, in paragraph 18 has laid down the stages of the
second appeal and its co-relation with formulation of substantial questions of law.
16] So, this Court feels that there was need to frame substantial questions
of law. The purpose of formulating such substantial question is well known. It
gives a notice to the parties on which substantial question, the Court is going to
hear the matter.
17] While arriving at a conclusion, except the reasons as reproduced
above, this Court does not find any other discussions/consideration on the
evidence adduced before the trial Court. So, this can certainly be said to be an
error apparent on the face of the record. For coming to this conclusion, this
Court has not undertaken long drawn process of reasoning. Hence, Point No.1 is
answered in the affirmative.
As to Point No.2 :
18] This Court does not feel that there is an error apparent on the face of
record while considering the ratio laid down in the case of Bhanwar Singh.
There is a difference in between the appellate jurisdiction and review jurisdiction.
This has rightly been held in the case of Saraswatibai Mahadeorao Pawade &
mca.1039.16.jud 13/13
others vs. Harishchandra Mahadeorao Pawade & others , reported in 2017(3)
Mh.L.J. 133. The review jurisdiction should not be resorted in disguise for
correcting an erroneous decision.
19] In view of that, I am not inclined to accept that ground. Hence, the
decision in the case of Uttam and other decisions on the point of interpretation of
provisions of Section 7 and Section 8 of the Hindu Succession Act relied upon by
both the sides are not considered. Hence, Point No.2 is answered in the negative.
In the result, the following order is passed:
ORDER
i. The review application is allowed.
ii. The judgment dated 25/08/2016 passed in Second Appeal
No.57/2016 is reviewed and the second appeal is restored to file.
iii. The second appeal be fixed for admission on 27/11/2021.
iv. Respondent Nos.1 to 4 and 6 be supplied with memo of appeal and
other documents. They are at liberty to remain present on that date
and oppose the admission.
(S.M. MODAK, J.)
*sandesh
