Sajay Kumar Mondal vs Suleman Mondal & Ors
2021 Latest Caselaw 6584 Cal

               IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION



Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                             C.O. 2253 of 2017

                           SAJAY KUMAR MONDAL
                                   VS.
                          SULEMAN MONDAL & ORS.


For the petitioner:           Mr. Partha Pratim Roy,
                              Mr. Malay Bhattacharyya.


For the opposite party:       None.


Heard on:                     20.12.2021



Judgement on:                 23.12.2021



Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied by the Order No. 165 dated 16/05/2017

passed by the learned Civil Judge (Senior Division) at Bongaon District, 24

Parganas (North) in Title Suit No. 160 of 2000, wherein the learned Trial Court

was pleased to reject the prayer made by the defendant nos. 15 and 16 under

order XLVII, Rule 1 of Civil Procedure Code for reviewing the preliminary

judgment and decree passed in Title Suit No. 160 of 2000/ Title Suit No. 901 of

2015.

2. The brief background of the present case is that the suit plot no. 1489

measuring 92 Satak originally belonged to Sultan Mondal and Mahabub

Mondal and their names were duly published in the R.S.Record of Rights and

both Sultan Mondal and Mahabub Mondal have moiety share in the said plot.

Mahabub Mondal subsequently died leaving behind defendant nos. 1 to 6 and

another son Habibur Mondal died leaving behind defendant nos. 7 to 14.

Thereafter the defendant nos. 15, 16 and 17 became owner of 9.9 decimal of

land and 5 decimal of land by gradual purchase from the original plaintiff

Sultan Mondal and after such sale of 14.90 decimal of land plaintiffs have 46

decimal of land minus 14.90 decimal of land which is equivalent to 31.10

decimal of land in the suit property.

3. On the other hand the defendant nos. 1 to 6 and Habibur Mondal

transferred 1.65 decimal of land in favour of the defendant nos. 15-17 and

therefore, after such sale the defendant nos. 1-14 who are the heirs of

Mahabub Mondal have 46 decimal of land minus 1.65 decimal of land which is

equivalent to 44.35 decimal of land in the suit property. The defendant no. 15

has 9.90 decimal of land by way of purchase and the defendant no. 16 has

3.35 decimal of land in the suit plot. After contested hearing the learned Trial

Court was pleased to pass a preliminary decree on 20th August, 2004 wherein

the learned Trial Court declared that the plaintiffs have jointly 31.10 decimal of

land. The defendant nos. 1 to 14 have 44.35 decimal of land, the defendant no.

15 has 9.90 decimal of land, the defendant nos. 16 and 19 jointly have 3.30

decimal of land and defendant no. 18 has 3.35 decimal of land in the suit plot.

4. The specific case of defendant no. 15/petitioner herein is that the

parties to the suit are residing separately by way of amicable partition but

learned Trial Court passed the aforesaid preliminary decree based on the fact

that the entire area of the suit property is 31.1 decimals of land. He further

contended that it appears that a portion of land in the suit property has

already been acquired by the State Government for the purpose of construction

of metal road and to that extent compensation was also received by the father

of the plaintiffs and, therefore, physically the plot of land is much less than the

plot as mentioned in the schedule to the plaint. Considering the above aspect

the petitioner filed application under Order 47 Rule 1 of the CPC with a prayer

to review the preliminary judgment and decree and also filed an application

under Order 6 Rule 17 of the CPC for incorporation of fact that a portion of the

suit plot has been acquired by the Government. The learned Trial Court has

rejected both the applications and being aggrieved by that rejection order the

present revisional application has been preferred for setting aside the

impugned order.

5. It is also submitted that after passing the aforesaid preliminary decree

the plaintiff prayed for appointment of investigation commissioner for making

amicable partition of the suit property by metes and bounds in terms of the

extent of ownership as declared in the preliminary decree. It further appears

that learned Investigation Commissioner has submitted his report on

05/09/2015 wherein he has allotted 39.45 Satak of land to defendant nos. 1 to

14 out of their 44.35 Satak of land and the rest of 4.9 decimal of land of

defendant nos. 1-14 has been left for common passage which also includes the

portion occupied for constructing metal Road and he has marked the same as

'A' and 'A1'. Similarly, he has allotted 9.90 Satak of land in favour of the

defendant no. 15 which is marked 'B' and 3.30 Satak of land in favour of the

defendant nos. 16 and 19 which is marked as 'C' and 3.35 Satak of land in

favour of defendant no. 18 which is marked as 'D' and learned Commissioner

also allotted 28 Satak of land to plaintiffs out of plaintiffs' total declared land of

31.10 Satak and the rest of 3.10 Satak has been shown by the Commissioner

towards common passage which includes land comprised of construction of

metal Road and finally he has mentioned that for the purpose of common

passage and metal Road he has excluded 8 Satak of land from the share of

plaintiff and defendant nos. 1 to 14. It is submitted that said report has not yet

been accepted by the Trial Court and it is pending for passing final decree.

6. Be that as it may, the fact remains that the defendants/petitioners

herein have not preferred any appeal against the preliminary decree passed by

the Trial Court and instead of that they have filed review application in respect

of which the impugned order was passed. Needless to mention that the scope of

review is limited under Order 47 Rule 1 and it can only be allowed with the

discovery of new and important matter of evidence or mistake or error apparent

on the face of the record or for any other sufficient reason or for all. Now if a

party is aggrieved by any judgment that it has not been decided as per law,

such argument may be agitated in appeal before the superior Court but not in

a review petition. The review cannot be an appeal in disguise and a review

petition cannot be entertained to reconsider a case. If a case decided after full

consideration of the documents and evidence available on record the review

cannot be permitted to engage the Court again to decide the controversy

already decided. A review cannot be equated with the original hearing or with

an appeal. The finality of the judgment delivered by the Court will not be

reconsidered by way of review unless a glaring omission or patent mistake or

error has been pointed out in the judgment already delivered.

7. Here in the present case I find nothing to interfere with the observation

made by the Trial Court that defendant/appellant failed to file any document in

support of their contention that 8.50 decimal of land has been acquired by the

concerned authority from the predecessor of the plaintiffs and the defendant

nos. 1 to 14 nor any new relevant evidence has been shown to have discovered,

which can alter the preliminary decree passed by the Trial Court.

8. On perusal of the judgment passed by way of preliminary decree I do not

find any error apparent on the face of the judgment which can lead me to

conclude that failure of justice has occurred and as such I am of the view that

in the absence of any such error, finality attached to the judgment cannot be

disturbed.

9. In this context it is also to be mentioned that "mere erroneous decision"

and "error apparent on the face of the record" are not same thing. Error

apparent on the face of the record is an error which can be seen by a mere

perusal of the record without reference to any other matter. Here in the

present case the petitioner/defendant has miserably failed to point out what

patent error has been committed by Trial Court in declaring the extent of share

of the parties in the suit property by way of passing preliminary decree and as

such I find nothing to interfere with the ultimate finding of the learned Trial

Court passed vide Order No. 165 dated 16/05/2017.

C.O. 2253/2017 is thus dismissed without any order as to costs.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)