Chattisgarh High Court
Mohd. Samim Khan vs Nashima Bibi (Dead) on 14 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
REVP No. 147 of 2022
1. Mohd. Samim Khan S/o Late Abdul Majid Aged About 27 Years R/o Village
Ramanujganj, Tahsil- Pal, District : Surguja (Ambikapur), Chhattisgarh
2. Mohd. Salim Khan S/o Late Abdul Majid Aged About 25 Years Occupation-
Business, R/o Village- Ramanujganj, Tahsil- Pal, District : Surguja (Ambikapur),
Chhattisgarh
3. Mohd. Rustam Khan S/o Late Abdul Majid Aged About 35 Years Occupation-
Private Service, R/o Village- Ramanujganj, Tahsil- Pal, District : Surguja
(Ambikapur), Chhattisgarh
4. Nurjama D/o Late Abdul Majid Aged About 28 Years Occupation- Business, R/o
Village- Ramanujganj, Tahsil- Pal, District : Surguja (Ambikapur), Chhattisgarh
---- Petitioners
Versus
1. Nashima Bibi (Dead) Through Lrs.
1 - (a) Mohd. Illiyas S/o Late Ibrahim Khan Aged About 55 Years R/o Village
Japla Hussainabad Lambi Gali Talab, Police Station And Post- Hussainabad,
District : Palamu, Jharkhand
1 - (b) Munna Khan S/o Late Ibrahim Khan Aged About 40 Years R/o Village
Japla Hussainabad Lambi Gali Talab, Police Station And Post- Hussainabad,
District : Palamu, Jharkhand
1 - (c) Mohd. Reyaj Khan S/o Late Ibrahim Khan Aged About 33 Years R/o
Village Japla Hussainabad Lambi Gali Talab, Police Station And Post-
Hussainabad, District : Palamu, Jharkhand
1 - (d) Hasina Begum D/o Late Ibrahim Khan Aged About 33 Years W/o Mirza
Abdul Washid Beg R/o Village Japla Hussainabad Lambi Gali Talab, Police
Station And Post- Hussainabad, District : Palamu, Jharkhand
1 - (e) Shamida Khatun D/o Late Ibrahim Khan Aged About 50 Years W/o
Mohd. Azam Khan, R/o Village Japla Hussainabad Lambi Gali Talab, Police
Station And Post- Hussainabad, District : Palamu, Jharkhand
1 - (f) Shahida Bano D/o Late Ibrahim Khan Aged About 35 Years W/o Shajad
Khurram Khan, R/o Village Japla Hussainabad Lambi Gali Talab, Police Station
and Post- Hussainabad, District : Palamu, Jharkhand
2. Sakila Begam W/o Late Sarvar Khan Aged About 30 Years Occuaption
Household, R/o Village Churesa Police Station Tilok,, District : Rohtas, Bihar
3. Parvin Bano W/o Jamil Khan Aged About 23 Years Occupation Household, R/o
Village Kudu, District- Lohardaga, Bihar..............(LRs of Defendant No.2)
4. The State of M.P. (Now C.G.) through Collector Surguja, (C.G.), Note - Akbiri
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Bibi Rasul Jama And Abdul Rahman have died therefor the Applicants not
made party to Akbiri Bibi Rasul Jama and Abdul Rahman in this Petition. ----
Respondents
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For Appellant : Shri A. N. Pandey, Advocate
For Respondent : Shri Avinash Singh, Govt. Advocate
Hon'ble Shri Justice Goutam Bhaduri
Order on Board
14.10.2022
1. This petition has been filed to review the Judgment and decree dated
20.01.2015 passed by this Court in S.A.No.369 of 2002 (Mohd. Illiyas
and others Versus Akbari Bibi and others).
2. Mr. A.N. Pandey, learned counsel for the petitioners would submit that
the share of the property which shall be followed is not under challenge,
but the property from which they are to take part in is required to be
reviewed. Therefore this requires reconsideration.
3. This Court at para 15 of the order dated 20.01.2015 held as follows:
"15. The parties to the suit are Sunni Muslims as
such governed by Hanafi School of Law and Succession.
The plaintiff being daughter having two brothers, according
to the law of succession, brother being residuary son takes
double the share than daughters. Therefore, so far for the
purpose of division of property, law as postulates son takes
double the daughter and in this case there being two sons
and a daughter, division of property according to the
succession of Hanafi-Law each son will take double the
daughter. Accordingly, the daughter will get 1/5th while
each son will get 2/5th each. Accordingly, the plaintiff's right
to her share left by the father is 1/5th and two sons will get
4/5th. Accordingly, the decree is modified to the extent that
the plaintiff will get 1/5th in the suit property and two sons
will get 4/5th"
4. The Supreme Court relying on various case laws in Shri Ram Sahu
(dead) through LRs versus Vinod Kumar Rawat (decided on
03.11.2020 in Civil Appeal No.3601 of 2020) held that the power of
review cannot be exercised as an inherent power nor an appellate power
can be exercised in the guise of power of review. The court further laid
down that the judgment should be open to review inter aliia if there is a
mistake apparent on the fact of the record. 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 fact of the record justifying the court
to exercise its power of review under Order 47 Rule 1 CPC. However,
the Court held that in exercise of the jurisdiction under Order 47 Rule 1
CPC, it is not permissible for an erroneous decision to be 'reheard and
corrected'. It is further held that there is a clear distinction between an
erroneous decision and an error apparent on the face of record. While
the former can be corrected by the higher forum, the the latter can be
corrected by exercise of the review jurisdiction.
5. In view of the above legal position and after the going through the order
dated 20.01.2015, I do not find any reason to review the same.
Accordingly, the petition is dismissed. The petitioner shall be at liberty to
avail other remedy if so available under the law.
Sd/-
(Goutam Bhaduri)
Judge
Rao
