Karnataka High Court
Sri. A N Amruth Kumar vs Sri. A N Sandeep Kumar on 14 February, 2022
Bench: K.S.Mudagal
R.P. NO.671/2017
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1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
REVIEW PETITION NO. 671/2017
IN
R.S.A.NO.1367/2011
BETWEEN:
SRI. A.N. AMRUTH KUMAR
S/O. A. NAGARAJASHETTY
AGED ABOUT 32 YEARS
PROPRIETOR
HANUMAN PROVISION STORES
BELLARY ROAD I CROSS
CHALLAKERE
CHITRADURGA DISTRICT. ...PETITIONER
(BY SRI.MITHUN G.A., ADVOCATE)
AND
1. SRI. A.N. SANDEEP KUMAR
S/O. A. NAGARAJASHETTY
AGED ABOUT 30 YEARS
R/O ANANDA NILAYA
VASAVI COLONY CHALLAKERE
CHITRADURGA DISTRICT
2. SMT. A.N. VANITHA
W/O. A. NAGARAJASHETTY,
AGED ABOUT 51 YEARS
3. KUMARI A.N. VANI
R.P. NO.671/2017
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2
D/O. A.NAGARAJASHETTY
AGED ABOUT 22 YEARS
BOTH ARE RESIDING AT ANANDA NILAYA
VASAVI COLONY, CHALLAKERE
CHITRADURGA DISTRICT. ... RESPONDENTS
(BY SRI. B.M.SIDDAPPA, ADVOCATE FOR R2 AND 3;
R1 SERVED)
THIS REVIEW PETITION IS FILED UNDER ORDER 47
RULE 1 CPC, PRAYING THIS COURT TO REVIEW THE ORDER
DATED 13-06-2017 PASSED IN RSA NO.1367/2011 PASSED BY
THIS COURT.
THIS PETITION COMING ON FOR ADMISSION THROUGH
VIDEO CONFERENCE THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard.
2. Under the above petition, the petitioner is
seeking review of the judgment of this Court dated 13-6-
2017 in RSA No.1367/2011 (Partition).
3. Petitioner filed RSA No.1367/2011 (Partition)
challenging the judgment and decree dated
19-01-2010 passed in R.A. No.85/2010 by the Additional
District Judge (Fast Track Court) Chitradurga. By the said
judgment, the First Appellate Court allowed the appeal of
R.P. NO.671/2017
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respondent Nos. 2 and 3 and dismissed the suit of the
petitioner in OS No.2/2008 on the file of Civil Judge (Sr.
Dvn.), Challakere, for partition and separate possession of
his share.
4. The petitioner and the first respondent are the
sons of Nagaraj Shetty and his first wife Satyabhama.
After the death of Satyabhama, Nagaraj Shetty married
the second respondent. Out of the said marriage, they
begot respondent No.3 a daughter. Nagaraj Shetty died on
06-08-2006.
5. In the suit the petitioner contended that suit
Schedule A and B properties were the self acquired
properties of Nagaraja Shetty and he bequeathed suit
Schedule A property to him under the Will dated 22-06-
2005, thereby he has become absolute owner of the plaint
A schedule properties. He sought partition and separate
possession of his share in plaint Schedule B property-
Business.
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6. Respondent Nos. 2 and 3 contested the suit
disputing the Will propounded by the petitioner and the
nature of the properties. They claimed that the suit
schedule properties were the ancestral properties of
Nagaraja Shetty and therefore, respondent No.3 has equal
share in those properties. In the suit, respondent Nos. 2
and 3 filed a counter claim seeking partition and separate
possession of their share in all the suit schedule properties.
7. The trial Court upholding the Will decreed the
suit of the plaintiff and dismissed the counter claim. That
judgment was challenged before the First Appellate Court
in R.A. No.85/2010. The First Appellate Court allowed the
appeal of respondent Nos. 2 and 3 on the ground that the
Will was not proved by adducing primary evidence and no
grounds were made out to adduce the secondary evidence.
8. The First Appellate Court further held that the
petitioner has failed to prove that the testator was in a
sound disposing state of health at the time of alleged
execution of the Will and the Will was shrouded with
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suspicious circumstances. It was held that the said
suspicious circumstances were not dispelled by the
petitioner.
9. Challenging the said judgment and decree,
petitioner filed RSA No.1367/2011. This Court raised the
substantial question of law to the effect that, "whether the
execution of the Will is proved in accordance with Section
63 of the Indian Succession Act, 1925 and Section 68 of
the Evidence Act?". By the detailed analysis of the
pleadings, relevant evidence and the judgment of the
Hon'ble Supreme Court in the case of H. Venkatachala
Iyengar Vs. B.N.Thimmajamma and others,1 Regular
Second Appeal was dismissed answering the said
substantial question of law in favour of respondent Nos. 2
and 3. The petitioner is seeking review of the said order
on five grounds mentioned in para 16 of the review
petition.
AIR 1959 SC 443
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10. During the course of the arguments, learned
counsel for petitioner submits that he restricts the petition
to ground Nos. 1 to 3 in para 16 of the petition.
11. Under Order 47 Rule 1 CPC review of the order
can be sought on the ground of discovery of any new or
important matter which was not within the knowledge of
the review petitioner despite exercise of due diligence or
on the ground that the Court reached to a wrong
conclusion on account of some mistake or error apparent
on the face of the record. In the case on hand, the
petitioner is seeking review of the order on the ground of
error apparent on the face of the record.
12. The Hon'ble Supreme Court in the case of
Satyanarayan Laxminarayana Hegde Vs. Mallikarjun
Bhavanappa Tirumale has held that, an error which has
to be established by long drawn process of reasoning on
points where there may conceivably be two opinions, can
AIR 1960 SC 137
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hardly to be said to be an error apparent on the face of
the record.
13. The Hon'ble Supreme Court in the case of
Thungabhadra Industries Limited Vs. The Government of
Andhra Pradesh has held that, a review is by no means
an appeal in disguise whereby an erroneous decision is
rebuilt and corrected. It was held that, review petition lies
only for correction of an apparent error. It was held that
there is real distinction between a mere erroneous
decision and an error apparent on the face of record.
14. If the judgment is erroneous, the remedy of
the aggrieved party is to agitate the same before the next
Appellate Court and not to convert the Court which passed
the judgment as Appellate Court against its own order.
This Court in the case of M.Narayanappa Vs. Hemavathi
has held that "mere a wrong interpretation of provisions of
law or taking a wrong view of law does not give rise to a
ground for review under Order 47 Rule 1."
AIR 1964 SC 1372
ILR 1987(1) Karnataka 715
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15. In the light of the above legal position, this
Court has to examine whether the grounds raised by the
petitioner amount to error apparent on the face of the
record. Admittedly, though the petitioner set up his claim
based on a Will, he did not produce the said Will. He
claimed that that was in the custody of respondent No.2.
First Appellate Court and this Court on analyzing the
evidence held that the petitioner failed to prove that the
alleged original Will propounded by him was in the custody
of respondent No.2. Therefore, such question of fact and
reasoning based on such question of fact do not become
an error apparent on the face of the record.
16. Similarly, the burden is on the propounder of
the Will to prove that the executant was in sound
disposing state of health. Considering the evidence on
record, this Court held that the petitioner has failed to
prove that the testator was in sound disposing state of
health at the time of alleged execution of the Will.
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Therefore, both of them cannot be termed as error
apparent on the face of the record.
17. It is apparent that by filing this petition, the
petitioner is trying to convert this Court in an appellate
court against its own order. Having filed this petition, he
has dragged the matter for about 5 years. Absolutely,
there is no merit in the petition. Therefore, the same is
dismissed with costs of Rs.5,000/-.
Costs shall be deposited in the Final Decree
Proceedings within two weeks from the date of receipt of
the copy of this order. Otherwise, the petitioner has no
right of audience in the Final Decree Proceedings.
Sd/-
JUDGE
tsn*
