Smt. Valliamma vs Sri. Dhanapal Since Deceased Rep ...
2023 Latest Caselaw 4064 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 6TH DAY OF JULY, 2023

                            BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

           REVIEW PETITION No.119 OF 2020
                            IN
                R.F.A.No.1081 OF 2016

BETWEEN:

Smt.Valliamma,
W/o Yellappa
Aged about 71 years,
Residing at House Old No.269/40,
New No.338, Ashok Nagar,
Kadugondanahalli,
Bengaluru-560 045,
Rep.by GPA Holder/Son
Sri Y.Prabhakaran.
                                         .. Petitioner

(By Sri Paras Jain, Advocate )

AND:

Sri Dhanapal,
Since deceased, rep.by his Lrs.

  1. Smt. Vasugi,
     Aged about 59 years,

  2. Sri Kovalan D.
     Aged about 56 years,

  3. Sri Elongovan,
     Aged about 52 years,
                                                   R.P.No.119/2020
                                2


   4. Sri Kalai,
      Aged about 46 years,

   5. Sri Babu,
      Aged about 36 years,
      All are children of deceased
      Sri Dhanpal,
      Residing at No.165,
      6th Cross, III Stage,
      Pillanna Garden,
      Bangalore-560 045.
                                                   .. Respondents
(By Sri. Janardhana G., Advocate for R-1 to R-5)
                               ****

This Review Petition is filed under Order 47 Rule 1 of the Code of Civil Procedure, 1908, praying to review the judgment and decree dated 31-12-2019 passed by this Court in Regular First Appeal No.1081/2016, on account of error apparent on record and for other reasons stated in the petition, in the ends of justice.

This Review Petition having been heard through physical hearing/video conferencing and reserved on 16-06-2023, coming on for pronouncement of orders on Admission, this day, the Court made the following:

Dr.HBPSJ:

ORDERS ON ADMISSION

The present review petitioner was the appellant in

Regular First Appeal No.1081/2016 before this Court filed

by her under Section 96 read with Order XLI Rule 1 of the

Code of Civil Procedure, 1908, (hereinafter for brevity

referred to as "the CPC") against the judgment and decree R.P.No.119/2020

dated 10-06-2016, passed in O.S.No.16762/2005, on the

file of the IV Additional City Civil and Sessions Judge,

Mayohall Unit, Bengaluru (CCH-21), which had decreed the

suit for possession and damages instituted by the original

plaintiff.

2. The said Regular First Appeal by the judgment of

this Court dated 31-12-2019 came to be dismissed on its

merits. It is against the said judgment, the appellant in

R.F.A.No.1081/2016 (defendant) has filed the present

review petition.

3. The review petitioner (appellant) in her

memorandum of review petition has contended that, the

observation of this Court that, the Village Panchayat had no

power and authority to issue Possession Certificate with

respect to a Layout formed by the State Government, is

erroneous. It was also contended that, the finding of this

Court that the Layout plan was not trustworthy and reliable,

is purely based on conjectures, surmises and contrary to

the material available on record.

R.P.No.119/2020

The review petitioner also contended that the finding

of this Court holding that the suit was not barred by the

period of limitation is an erroneous finding, in the light of

the evidence placed before the Court. With this, the review

petitioner has prayed for reviewing the impugned judgment

and decree passed by this Court.

4. Heard the argument from the learned counsels

from both side, who are appearing physically before the

Court. Perused the materials placed before me including

the impugned judgment and decree passed in

R.F.A.No.1081/2016 by this Court, which is under review.

5. The learned counsel for the review petitioner in his

argument submitted that, the original plaintiff has sought

for possession of a site which was not allotted to him.

Though the Layout plan shows a small portion of the vacant

land wherein two sites could have been formed, however,

the plaintiff has sought for eviction of the defendant who

has perfected her title by adverse possession. The learned

counsel contended that even though the plaintiff was aware R.P.No.119/2020

that the defendant was in possession of the suit property,

has not filed any suit for possession of the property. Hence,

the law of limitation does not get arrested by filing a suit

belatedly.

In support of his contention, the learned counsel for

the review petitioner relied upon a judgment of the Hon'ble

Apex Court in the case of RAVINDER KAUR GREWAL AND

OTHERS Vs. MANJIT KAUR AND OTHERS reported in

(2019) 8 Supreme Court Cases 729. Except the above

submissions, the learned counsel for the review petitioner

neither made any further submission nor relied upon any

other judgments of any other Court in his arguments and in

support of his contention.

6. The learned counsel for the respondents in his

argument submitted that the scope of review petition is

very limited and is available only when a review petitioner

could make out a clear case of an error apparent on the

face of the record. He further submitted that the alleged

grounds raised by the petitioner in the present review R.P.No.119/2020

petition are all the grounds for appeal requiring re-analysis

and re-appreciation of the evidence which is not permitted

in a review petition.

In his support, he relied upon a judgment of the

Hon'ble Apex Court in the case of PARSION DEVI AND

OTHERS VS. SUMITRI DEVI AND OTHERS reported in

(1997) 8 Supreme Court Cases 715.

7. The original plaintiff (respondent) has contended

that he being an Ex-serviceman was allotted with the suit

schedule site by the Block Development Officer, Bengaluru,

under his order dated 18-10-1978. In that regard, he has

paid the consideration and was issued with the Possession

Certificate and was put in possession of the property and

khata also was made in his name. According to him, he has

also obtained a licence for putting up a construction on the

site after getting the khata in his name. It was at that time

the defendant started interfering in his lawful possession of

the property and attempted to knock away the suit schedule

property from him.

R.P.No.119/2020

8. The defendant (review petitioner herein) has

denied the same and has contended that she is the

purchaser of the suit property from one Sri. Chikka

Hanumanthaiah under a registered Sale Deed dated

28-01-1978, however, she admitted that the alleged

adjoining site, which was site No.40 was allotted to her

husband, but denied that the plaintiff has been in

possession of the suit schedule property.

9. In support of their respective contentions, both

side parties have led their evidence, both oral and

documentary. Admittedly, between the parties, several

other civil litigations were also filed. It is appreciating the

evidence led by the parties, the Trial Court, by its impugned

judgment and decree dated 10-06-2016 passed in

O.S.No.16762/2005, decreed the suit of the plaintiff and

dismissed the counter claim of the defendant. It is against

the said judgment and decree, the defendant before the

Trial Court had preferred a Regular First Appeal before this

Court in R.F.A.No.1081/2016.

R.P.No.119/2020

10. After securing the Trial Court records and hearing

the arguments from both side in detail, this Court, by its

judgment dated 31-12-2019, dismissed the appeal of the

defendant. It is contending that some of the findings given

by this Court in the said judgment are not in consonance

with the materials placed before this Court, the appellant

(defendant) in R.F.A.No.1081/2016 has filed this review

petition.

11. Before proceeding further, the scope of the

review petition is required to be looked into.

Order XLVII Rule 1 of the Code of Civil procedure,

1908, reads as below:

1. Application for review of judgment.- (1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a preference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the R.P.No.119/2020

exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made again him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.

Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

R.P.No.119/2020

12. Admittedly, it is not the petitioner's case that she

has discovered a new and important matter or evidence,

which, after exercise of due diligence, was not within her

knowledge or could not be produced by her at the time

when the decree was passed or order made. On the other

hand, it is the case of the review petitioner that the

evidence placed before the Court, both oral and

documentary are not properly appreciated which can be

called as a mistake or error apparent on the face of the

record.

13. Our Hon'ble Apex Court in PARSION DEVI'S case

(supra) in paragraph 9 was pleased to observe as below:

"9. Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face 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 face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard R.P.No.119/2020

and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

14. Our Hon'ble Apex Court in the case of SHANTI

CONDUCTORS PRIVATE LIMITED Vs. ASSAM STATE

ELECTRICITY BOARD AND OTHERS reported in (2020) 2

Supreme Court Cases 677, while discussing the scope of

review petition, was pleased to discuss the scope of review

under Order XLVII Rule 1 read with Section 114 of the CPC.

The Hon'ble Apex Court was pleased to hold that, the scope

of review is limited and under the guise of review, the

petitioner cannot be permitted to re-agitate and re-argue

the questions, which have already been addressed and

decided. It was further observed that, under Order 47 Rule

1 of the CPC, a judgment may be open to review, inter alia

if there is a mistake or an error apparent on the face of

record. However, an error which is not self-evident and has R.P.No.119/2020

to be detected by a process of reasoning, can hardly be said

to be an error apparent on the face of the record justifying

the Court to exercise its power of review under Order 47

Rule 1 of the CPC.

15. In the instant case, the learned counsel for the

review petitioner (appellant) in his argument attempted to

draw the attention of this Court to Ex.P-12, Ex.D-9 and

Ex.D-6, to show that those documentary evidences were

not properly analysed or appreciated by this Court. Though

the learned counsel submitted that the plaintiff in his

evidence has admitted the Layout plan at Ex.D-9, but has

failed to bring to the notice of the Court that PW-1 in his

cross-examination has stated that he is admitting the said

Layout plan. The learned counsel, by referring to

Ex.P-13, attempted to show that the plaintiff has conceded

that site No.63 was not allotted to him under the said

document and thus attempted to show that the plaintiff was

claiming a property which was not allotted to him.

R.P.No.119/2020

16. In the process, the review petitioner has failed to

notice two aspects. Firstly, by stating that under Ex.P-13,

site No.63 in particular was not allotted to him, the plaintiff,

as PW-1, has not conceded that site No.63 was not allotted

to him but has shown that Ex.P-13 is not a document

showing the allotment of site. It is because, undisputedly,

Ex.P-13 is not an allotment letter or any other document

allotting the site to the plaintiff but it is only a 'hakku patra'

(Possession Certificate).

Secondly, by raising such a contention, the review

petitioner is attempting to make this Court to re-analyse

and re-appraise the evidence once again, which is not

permissible under the scope of Order XLVII, Rule 1 of the

CPC.

17. The last point of argument of the learned counsel

for the review petitioner was that, the suit was clearly

barred by limitation, however, the Court did not appreciate

the evidence regarding limitation properly. Stating that in a

similar circumstance, our Hon'ble Apex Court has held a suit R.P.No.119/2020

as barred by limitation, the learned counsel relied upon a

decision of the Hon'ble Apex Court in Manjit Kaur's case

(supra).

He also contended that the suit of the plaintiff was

hopelessly barred by limitation since the same was not filed

within twelve (12) years of adverse possession by the

defendant.

18. In Manjit Kaur's case (supra), our Hon'ble Apex

Court, inter alia, was pleased to discuss the scope of

Section 27 and Articles 65 and 64 of the Limitation Act and

the effect of lapse of period prescribed for loss of ownership

by adverse possession.

The Hon'ble Apex Court inter alia was also pleased to

observe that, once twelve years' period of adverse

possession was over, the owner's right to eject the person

in adverse possession (adverse possessee/possessory

owner) is lost and possessory owner acquires the right, title

and interest possessed by the outgoing person/owner, as

the case may be, against whom he has established the R.P.No.119/2020

period of prescription. Further, in the very same judgment,

the Hon'ble Apex Court was pleased to observe with respect

to Article 65 of the Limitation Act and has re-stated the

essential conditions to constitute adverse possession in the

light of the limitation Act and was pleased to hold that

possession must be adequate in continuity, in publicity and

in extent. It must be adverse to owner, in open, visible,

notorious and peaceful denial of owner's title or knowledge,

neither mere long possession, nor possession as trespasser

would qualify for adverse possession.

19. In the light of the above, this Court has made a

detailed discussion in paragraphs 63, 64, 65 and 66 of its

judgment in R.F.A.No.1081/2016 and proceeded to hold

that the contention of the appellant (review petitioner

herein) that the suit of the plaintiff was barred by limitation,

cannot be accepted. That being the case, this Court in the

guise of review, cannot re-analyse and re-appreciate the

entire material regarding limitation afresh in a review

petition. Added to the above, all the grounds raised in the R.P.No.119/2020

memorandum of appeal though were not agitated in the

argument by the learned counsel for the appellant (review

petitioner herein), still, when looked into would reveal that they

are all the finding of the Court after appreciation and analysis of

the evidence, both oral and documentary. However, the present

review petitioner has attempted to make this Court to re-visit

and re-appraise those evidence which is beyond the scope of

review.

20. Thus, I am of the clear view that the review petitioner

could not able to make out any ground including any error

apparent on the face of the record to review the impugned

judgment and decree in this petition. As such, I do not find any

ground to admit the present review petition. Accordingly, the

Review Petition stands dismissed as devoid of any grounds to

admit.

In view of disposal of the review petition, pending

I.A.No.2/2020 for stay does not survive for consideration and

accordingly stands dismissed as having become infructuous.

Sd/-

JUDGE BMV*