Karnataka High Court

Shri.Murgendra vs Shri.Shivalingappa on 1 September, 2023

Bench: K.Somashekarpresided Byksj

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                                                NC: 2023:KHC-D:9976
                                                  RP No. 100098 of 2019




                IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                      DATED THIS THE 1ST DAY OF SEPTEMBER, 2023

                                       BEFORE
                       THE HON'BLE MR JUSTICE K.SOMASHEKAR
                         REVIEW PETITION NO. 100098 OF 2019
               BETWEEN:

                    SHRI.MURGENDRA
                    S/O CHANABASAPPA GATHAVALIMATH
                    AGE ABOUT: 56 YEARS
                    OCC: LECTURER
                    R/O: PLOT NO.51/52
                    SHIVANAGAR, TQ: GOKAK
                    DIST: BELAGAVI.
                                                           ...PETITIONER

               (BY SRI. SHRIHARSH .A NEELOPANT - ADVOCATE)

               AND:
Digitally
signed by D    1.   SHRI.SHIVALINGAPPA
K BHASKAR
Location:           S/O CHANABASAPPA GATHAVALIMATH
High Court          AGE ABOUT: 61 YEARS
of Karnataka        OCC: ADVOCATE
                    R/O: NEAR LAXMI EXTENSION
                    LAXMI TEMPLE, TQ: GOKAK
                    DIST: BELAGAVI.

               2.   SMT.RADHA @ VIJAYA
                    W/O MAHANTESH GATHVALIMATH
                    AGE ABOUT: 48 YEARS
                    OCC: HOUSEHOLD WORK
                    R/O: PLOT NO.26, 20TH CROSS
                    KARAGAPPA GARDEN
                    BENGALURU.

               3.   SHRI.VIVEK
                    S/O MAHANTESH GATHVALIMATH
                    AGE ABOUT: 33 YEARS
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                                   NC: 2023:KHC-D:9976
                                     RP No. 100098 of 2019




     OCC: STUDENT
     R/O: PLOT NO.26, 20TH CROSS
     KARAGAPPA GARDEN
     BENGALURU.

4.   SMT.SHANTAWWA
     W/O CHANABASAPPA GATHVALIMATH
     AGE ABOUT: 97 YEARS
     OCC: HOUSEHOLD WORK
     R/O: NEAR LAXMI EXTENSION
     LAXMI TEMPLE, TQ: GOKAK
     DIST: BELAGAVI.

5.   SMT.MAHADEVI
     W/O MAHADEV SOLAPURMATH
     AGE ABOUT: 63 YEARS
     OCC: HOUSEHOLD WORK
     R/O: FALLS ROAD, GOKAK
     TQ: GOKAK, DIST: BELAGAVI.

6.   SMT.VIJAYMALA
     W/O SHRISHAIL KARDI
     AGE ABOUT: 61 YEARS
     OCC: AGRICULTURE
     R/O: VIJAYAPURA.

7.   SMT. UMA
     W/O RAJASHEKAR HIREMATH
     AGE ABOUT: 53 YEARS
     OCC: AGRICULTURE AND SERVICE
     R/O: VIJAYAPURA.
                                           ...RESPONDENTS

(R-1 TO R-4 ARE SERVED, BUT UNREPRESENTED
VIDE ORDER DATED 01.09.2023, NOTICE TO R-5 IS REFUSED)

     THIS REVIEW PETITION FILED UNDER ORDER 47 RULE 1
R/W SEC.114 OF CPC, PRAYING TO ALLOW THE ABOVE REVIEW
PETITION AND TO REVIEW THE JUDGMENT DTD:04.10.2018
PASSED IN RSA NO.100899/2016 AND CONSEQUENTLY TO
MODIFY THE SHARE OF THE PETITIONER 1/4TH SHARE
INSTEAD OF 1/5TH SHARE IN THAT PROPERTY.
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                                    NC: 2023:KHC-D:9976
                                       RP No. 100098 of 2019




     THIS REVIEW PETITION PERTAINING TO DHARWAD
BENCH COMING ON FOR ORDERS THROUGH VIDEO
CONFERENCING THIS DAY, THE COURT MADE THE
FOLLOWING:

                          ORDER

In this matter, learned counsel for the petitioner has

filed I.A.No.1/2019 under Section 5 of the Limitation Act

seeking condonation of delay of 297 days in filing the

appeal. This application is appended with an affidavit

filed by Murgendra S/o Chanabasappa Gathavalimath.

The reasons assigned in the affidavit are found to be

justifiable and acceptable. Consequently, IA No.1/2019 is

allowed in the interest of justice and delay of 297 days is

hereby condoned.

2. Heard the learned counsel Sri Shriharsh A

Neelopant for the review petitioner. In this matter process

has been served upon R1 to R4 but they remain absent.

R5 has refused to receive the process. Postal shara as

regards R6 and R7 indicates as insufficient address.

3. This review petition is filed by the petitioner /

Defendant No.3 namely Sri Murgendra S/o Chanabasappa

NC: 2023:KHC-D:9976 RP No. 100098 of 2019

Gathavalimath who is arraigned as respondent No.4 in

RSA No.100899/2016 (Partition and Separate possession),

being aggrieved by the order of this Court dated

04.10.2018. The aforesaid RSA was disposed of on

04.10.2018 by this Hon'ble Court based upon a

compromise petition filed under Order 23 Rule 3 read with

section 151 of CPC.

4. The facts of the case are that the plaintiffs had

initiated a suit against the defendants in O.S. No.137/2007

for partition and separate possession of 1/4th share in the

suit schedule property depicted therein. The said suit of

the plaintiffs was decreed in part holding that plaintiff

Nos.1 and 2 were together entitled for 8/35th share and

defendant Nos.1 to 3 were entitled for 8/35th share each in

all the suit schedule properties. Further Defendant Nos.4

to 6 were entitled for 1/35th share in all the suit schedule

properties subject to payment of proper Court fee.

Aggrieved by the said judgment of the Trial Court in

O.S.No.137/2007, the defendant No.2 had preferred

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R.A.No.263/2011. The said Regular Appeal came to be

dismissed by confirming the decree passed by the Trial

Court in O.S.No.137/2007. Defendant No.2 being

aggrieved by the order passed in R.A.No.263/2007 had

preferred R.S.A.No.100899/2016, which came to be

disposed of by this Court accepting the compromise

petition filed by the respective parties namely the

appellant and respondents. The present Review Petition

is filed seeking for correction of the error that has crept in

page No.13 sub-para (iv) stating as '1/5th share' instead of

'1/4th share'. The said sub-para reads thus"

(iv) An agricultural land bearing Block.No.417/1 situated at Munavalli Village, Saundatti Taluk, Belagavi District, measuring 05 acres 07 guntas. The appellant and the respondents do hereby agree that their family is having joint 1/5th share in this land and the remaining joint 4/5th share is belonging to their cousins and relations. The appellant and the Respondent No.1 to 3 and 5 and 6 do hereby state that they do not have any share in this land and the joint 1/5th share owned by their entire family has been allotted to the share of the Defendant No.3 /

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Respondent No.4, Murgendra C. Gathavalimath and he is at liberty to take further steps to carve out his separate 1/5th share in this land by filing appropriate suit for partition and separate possession against the other joint owners."

5. The petitioner in this review petition seeks for

intervention and also to allow the review petition dated

04.10.2018 passed in RSA.No.100899/2016 by correcting

the typographical error that has crept in seeking

modification of the share of petitioner relating to 1/4th

share instead of 1/5th share in the said property.

6. Keeping in view the contentions made by the

learned counsel for the petitioner are concerned, it is

deemed appropriate to refer to Order 47 Rule 1 of the

CPC.

"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

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preferred,

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

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the 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 of for any other sufficient reason, desires to obtain a review of the decree passed or Order made against 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 on 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."

7. A perusal of the Order XLVII, Rule 1 shows that

review of a judgment or an order could be sought : (a)

from the discovery of new and important matters or

evidence which after the exercise of due diligence was not

within the knowledge of the applicant; (b) such important

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matter or evidence could not be produced by the applicant

at the time when the decree was passed or order made;

and (c) on account of some mistake or error apparent on

the face of record or any other sufficient reason. This

issue was addressed by the Hon'ble Supreme Court in the

case of HARIDAS DAS vs. SMT. USHA RANI BANIK &

ORS. (AIR 2006 SC 1634). The power of review is

available only when there is error apparent on the face of

the record and not on erroneous decision. These issues

are addressed by the Hon'ble Supreme Court of India in

the case of B DHANALAKSHMI VS M SHAJAHAN, AIR

2004 MAD 512.

8. These are all the decisions rendered by the

Hon'ble Supreme Court of India. Keeping in view the

grounds urged by the learned counsel for the petitioner in

this matter, it requires for intervention, if not intervened

there shall be miscarriage of justice to the parties.

9. Consequently, petition is allowed and the

judgment rendered in RSA No.100899/2016 dated

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04.10.2018 is hereby modified to state that their family is

having joint 1/4th share instead of 1/5th share of property.

Hence, Page No.13 sub-para (iv) of the judgment in

RSA.No.100899/2016 dated 04.10.2018, shall hereby read

as under:

"(iv) An agricultural land bearing Block.No.417/1 situated at Munavalli Village, Saundatti Taluk, Belagavi District, measuring 05 acres 07 guntas. The appellant and the respondents do hereby agree that their family is having joint 1/4th share in this land and the remaining share is belonging to their cousins and relations. The appellant and the Respondent No.1 to 3 and 5 and 6 do hereby state that they do not have any share in this land and the joint 1/4th share owned by their entire family has been allotted to the share of the Defendant No.3 / Respondent No.4, Murgendra C. Gathavalimath and he is at liberty to take further steps to carve out his separate 1/4th share in this land by filing appropriate suit

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NC: 2023:KHC-D:9976 RP No. 100098 of 2019

for partition and separate possession against the other joint owners."

10. Consequent upon allowing the review petition,

learned counsel for the petitioner is directed to surrender

the judgment and decree rendered by this Court in

RSA.No.100899/2016 dated 04.10.2018. If the certified

copy of the said judgment is surrendered, the corrected

copy of the judgment in RSA No.100899/2016 (Partition

and Separate possession) shall be issued to the petitioner.

However, learned counsel submits that the certified copy

of the judgment in RSA No.100899/2016 dated