Karnataka High Court
Late Tukaram Sidharam Kathave vs Alisab S/O Davalsab Shaik Since ... on 8 February, 2022
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
(THROUGH VIDEO CONFERENCING AT DHARWAD BENCH)
DATED THIS THE 8TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
REVIEW PETITION NO.200016/2020
IN
(RSA NO.1077/2006)
BETWEEN:
LATE TUKARAM SIDHARAM KATHAVE
SINCE DECEASED BY HIS LRS
1. SMT. MANGLA W/O. LATE TUKARAM,
AGE: 60 YEARS, OCC: HOUSEHOLD,
2. SANJEEV S/O. LATE TUKARAM,
AGE: 40 YEARS, OCC: AGRICULTURE,
3. SMT. MADHURI D/O. LATE TUKARAM,
AGE: 37 YEARS, OCC: HOUSEHOLD,
PETITIONERS NO.1 TO 3 ARE
R/O. KUMBARI VILLAGE,
TQ: SOUTH SOLAPUR-413001
MAHARASHTRA STATE
...PETITIONERS.
(BY SHRI GOPALKRISHNA B. YADAV, ADVOCATE.)
AND:
ALISAB S/O. DAVALSAB SHAIK,
SINCE DEAD BY HIS LRS
1. SMT. MALANBI W/O. ALI SHAIK,
AGE: 80 YEARS, OCC: HOUSEHOLD,
2
R/O: BALOORGI VILLAGE,
TQ: AFZALPUR, DIST: KALABURAGI,
2. SMT. PASHABI W/O. ABDUL N ABI TAXALI,
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: HEERAPUR, DIST: KALABURAGI
3. SMT. KAHIRUNBI W/O SAYED SHAIK,
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O: DUDHANI, TQ: AKKALKOT,
DIST: SOLAPUR.
4. SMT. AALIMABI W/O. MAHIBOOB SHAIK,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: DUDHANI, TQ: AKKALKOT,
DIST: SOLAPUR.
5. ASHTAJBI W/O. MAKBUL SHAIK,
AGE: 59 YEARS, OCC: HOUSEHOLD,
R/O: RUBY NAGAR, SOLAPUR.
6. MAHIBOOB S/O. ALISAB SHAIK,
AGE: 58 YEARS, OCC: AGRICULTURE,
R/O: BALOORGI VILLAGE,
TQ: AFZALPUR, DIST: KALABURAGI,
7. SMT. TOLAMBI D/O. ALISAB SHAIK,
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: BALOORGI VILLAGE,
TQ: AFZALPUR, DIST: KALABURAGI.
8. RAMANAPPA S/O. LOKAWWA HARIJAN
AGE: 45 YEARS, OCC: AGRICULTURE,
9. DEVAPPA S/O. LOKAWWA HARIJAN
AGE: 42 YEARS, OCC: AGRICULTURE,
BOTH ARE R/O: BALOORGI VILLAGE,
TQ: AFZALPUR, DIST: KALABURAGI.
...RESPONDENTS.
THIS REVIEW PETITION IS FILED UNDER SECTION 114 READ
WITH ORDER 47 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908,
PRAYING TO REVIEW THE JUDGMENT AND DECREE DATED
3
28.02.2020 PASSED IN RSA NO.1077/2006 ALLOWING THE REGULAR
SECOND APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 26.11.2002 PASSED IN R.A.NO.534/2004 BY THE FAST TRACK
COURT-V AT, KALABURAGI AND DISMISS THE RSA AS PRAYED, IN
THE INTEREST OF JUSTICE.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
Claiming to be aggrieved by the order passed in
R.S.A.No.1077 of 2006 by judgment dated 28.02.2020, the
respondents 1 to 3 in R.S.A.No.1077 of 2006 have preferred the
subject review petition.
2. Heard Sri Gopalakrishna B.Yadav, learned counsel
for the petitioners.
3. The petitioners have filed the subject review petition
on the ground that the principle of res judicata was not the
subject matter in the suit. Therefore, considering the petition
under Order 9 Rule 9 of the CPC was erroneous. The substantial
question of law was relating to proof of partition and only after
the partition, respondents had purchased the land in Sy.No.188
and had been put in possession to the extent of 08 guntas. The
entire review petition is on the premise that reference to Order
9 Rule 9 of the CPC was incorrect. There is no averment with
regard to the earlier suit being dismissed and the subsequent
suit being filed without divulging dismissal of the earlier suit.
This is what is observed by this Court while disposing of
R.S.A.No.1077 of 2006. It is further contended that reference to
the judgment of the Apex Court was erroneous.
4. On the aforesaid grounds review petition is
preferred invoking Section 114 read with Order 47 Rule 1 of the
CPC.
5. The grounds that are now urged in the review
petition have all been considered and negatived while hearing
the matter. It is not the case where the parties to the lis were
not heard in the matter. The contentions advanced by the
respective parties are also considered by the Court while
disposing of the second appeal. There is no error apparent on
the face of the record to either invoke Section 114 or Order 47
Rule 1 of the CPC. It is trite law that fishing of evidence or
reconsideration of the matter would amount to re-hearing and
not correcting an error apparent on the face of the record. In
my considered view there is neither any apparent error on the
face of the record nor any sufficient reason coming within the
meaning of Order 47 Rule 1 of the CPC to seek review of the
order exist. No case is made out for taking a different view of
the matter in exercise of review jurisdiction, as consideration of
the case of the petitioners in the review petition would amount
to re-hearing the matter in its entirety. The review petition
lacks merit and is dismissed.
Sd/-
JUDGE
Mrk/-
