Bombay High Court
Harishchandra Vishram Kumbhar vs District Collector Ratnagiri on 9 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:33476
69-RPS-6-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO.6 OF 2024
IN
SECOND APPEAL NO.416 OF 2024
Harishchandra Vishram Kumbhar ...Petitioner
Versus
The Government of Maharashtra,
Thr. District Collector Ratnagiri And Ors. ...Respondents
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Adv. Harsh Nishar, Amey Deshpande for the Petitioner.
Adv. Sumit Kothari for Respondent No. 3.
Adv. A. R. Patil, AGP for the State.
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Coram : Sharmila U. Deshmukh, J.
Date : August 9, 2024.
P. C. :
1. Heard.
2. By this Review Petition, review is sought of the judgment dated
9th February, 2024 dismissing the Second Appeal. The Second Appeal
was preferred by the Appellant challenging the judgment of dismissal
dated 17th August, 2017 passed in Regular Civil Appeal No.28 of 2016
thereby confirming the judgment of the Trial Court dated 10 th
November, 2016 passed in Regular Civil Suit No. 48 of 2011.
3. The challenge in Regular Civil Suit No. 48 of 2011 was to the
action initiated by the Tahsildar for demolition of the suit property
and for injunction in which counter claim was filed by the Respondent
Nos. 3 to 5 seeking removal of construction. The Trial Court dismissed
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the suit and decreed the counter claim.
4. Learned Counsel appearing for the Review Petitioner would
submit that the record of the permission granted by the
Grampanchayat is in the custody of the Gram Panchayat. He would
submit that the permission was granted for construction as per the
permission granted by the Gram Panchayat and though the resolution
was produced on record and was exhibited, the same has not been
considered while passing the judgment and it was held that resolution
was not produced which is error apparent on face of record. He would
submit that a case of review is made out under Order 47 Rule 1 of
CPC, as there is discovery of new and important matter which after
exercise of due diligence was not within the knowledge when the
impugned judgment was passed.
5. I have considered the submissions and perused the judgment
under review alongwith the judgment of the Trial Court and the
Appellate Court.
6. Firstly, it needs to be noted that Order 47 Rule 1 of CPC
provides for review where from discovery of new matter or evidence
which after exercise of due diligence was not within the knowledge of
the person aggrieved or could not be produced by him at the time
when the decree was passed or on account of error apparent or for
any other sufficient cause. The submissions of learned counsel for
Review Petitioner are two fold firstly, that resolution though
produced was not considered leading to error apparent on face of
record and secondly, that there is discovery of new and important
evidence. As to what is the new and important matter has not been
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canvassed which has been discovered subsequently is not brought to
the notice of the Court. Perusal of the ground (i) of Review Petitioner
would indicate that review is sought on the first submission of
resolution and not considered by holding that the resolution is not
produced.
7. Regular Civil Suit No. 48 of 2011 was filed by the Review
Petitioner challenging the notice issued by the Respondent Nos. 1 and
2-Statutory Authorities in respect of structure measuring 21ft. in
length and 20ft. in width, situated at Gat No. 57 at village Narvan,
District Ratnagiri of which the Respondent Nos. 3 to 5 were the
owners. The Review Petitioner's case was that the permission was
given for the construction by the owners as well as by the
Grampanchayat. During the hearing, the Appellate Court considered
the evidence of PW-2 admitting that no permission was obtained
before raising the construction on the suit property and that there is
no document to show that the Grampanchayat had given permission
to the wooden kiosk.
8. In paragraph 9 of the judgment under review, this Court
considered the findings of the Appellate Court on the evidence of PW-
2 that the Plaintiff had not obtained any permission before raising the
construction of the suit property. This Court held that admittedly in
the Trial Court proceedings, there is no written permission placed on
record and the documentary evidence produced by the Plaintiff are
the applications for permission and not written permission.
9. In paragraph 10 of the judgment, this Court noted the findings
of the Appellate Court that the original proceeding book of the
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Grampanchayat was perused by the Appellate Court and it was held
that there are interpolations in the original proceeding book. As no
perversity of findings was demonstrated, the Second Appeal was
dismissed.
10. Now the contention of the Review Petitioner is that the
resolution passed by the Grampanchayat though exhibited but was
not duly considered. I have gone through the grounds of the Second
Appeal set out as substantial questions of law. The contention raised
by the Review Petitioner that the resolution was not considered or
that the record was in custody of the Grampanchayat does not find
mention in the grounds. Apart from the same, the judgment under
review clearly holds that no perversity of findings of the Appellate
Court was demonstrated.
11. In view of the submission raised by the Review Petitioner,
though not required to do so in exercise of review jurisdiction, I have
perused the judgment of the Appellate Court. In paragraph 45, the
Appellate Court has discussed the resolution which is exhibited as
Exhibit-98. The Appellate Court considered the admissions of PW-2,
the then Village Sarpanch in context of the resolution passed and also
perused the oral proceeding book which was on record and came to a
finding that the resolution is inserted later on and there is fabrication
of record. The Appellate Court held that no copy of the alleged
construction permission was produced on record by the Plaintiff and
the suit property is not constructed by obtaining permission of
Grampanchayat. The review on the ground of error apparent is for the
reason that the resolution though exhibited but was not considered
and held to have not been produced is therefore liable to be rejected.
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12. In view of the above, no case for review is made out. The
present Petition is clearly an attempt to re-argue the matter which
already stands concluded by the judgment dated 9 th February, 2024 by
change of Advocate. It is well settled that review is not an appeal in
disguise and therefore, I do not find any merit in the Review Petition.
13. Petition stands dismissed.
[Sharmila U. Deshmukh, J.]
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Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 21/08/2024 16:37:19
