Madras High Court

The District Collector vs Durai Raj on 22 July, 2021

                                                                      Review Petition No.91 of 2019

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 22.07.2021

                                                      CORAM

                                      THE HONOURABLE Ms.JUSTICE P.T.ASHA

                                            Review Petition No.91 of 2019
                                                      against
                                                S.A.Nos.933 of 2013

                     1. The District Collector,
                        Ariyalur.

                     2. The Revenue Divisional Officer,
                        Ariyalur.

                     3.The Tahsildar,
                       Ariyalur                                        .. Petitioners
                                                          -Vs-

                     1. Durai Raj
                     2. Kalavathi
                     3. Kunjumani
                     4. Sulochana
                     5. Saraswathi                                     ...Respondents

                     Prayer : Review Petition has been filed under Order 47 Rule 1, r/w. 114 of
                     C.P.C against the order dated 28.03.2016 passed by this Court in
                     S.A.No.933 of 2013.




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https://www.mhc.tn.gov.in/judis/
                                                                           Review Petition No.91 of 2019

                                     For petitioners ... Mr.R.Shanmugasundaram, A.G.
                                                     assisted by Mr.A.E.Ravichandran, G.A (CS)
                                     For Respondents...Mr.V.Venkateseshan
                                                       for Mr.V.Illanchezian

                                                       ORDER

The above review application is filed to review the judgment dated

28.03.2016 passed in S.A.No.933 of 2013.

2. The ground, on which the review is filed, is that the issue of the

patta in respect of Anadeenam lands by the Tahsildar was without

jurisdiction, since the issuing authority is only the Government and the suit

O.S.No.33 of 2008 is bad for non-joinder of proper and necessary parties.

That the Court has overlooked the fact that the properties have been

classified as Anadeenam lands, which now vests with the Government.

3. The main ground seeking a review is that the suit has been

decided in great haste (i.e) within a period of 100 days and that the learned

Judge has overlooked the contention of the learned Government Advocate

regarding the suit being barred under Section 15 of the Patta Pass Book Act,

1983.

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

4. The above ground forms the fulcrum of the grounds of review.

To appreciate the facts, it is necessary to briefly touch upon the earlier

proceedings. A suit O.S.No.33 of 2008 had been filed by the plaintiffs for

declaration of their title and right to the suit property and for mandatory

injunction to the respondents to alter the revenue records and grant patta to

the plaintiffs.

5. The case of the plaintiffs is that though the suit property

belonged to them, it had been mentioned as Anadeenam in the revenue

records, which fact came to their knowledge only when the plaintiffs had

approached the third defendant, viz., Tahsildar, Ariyalur for obtaining the

patta and Chitta, as they required it for obtaining a loan. On coming to

know about this fact, the fourth plaintiff's father had given an application to

the second and third defendants to change the entry in the revenue records.

However, the said change was not effected by the defendants and therefore,

the plaintiffs were constrained to file the suit.

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

6. The third respondent-Tahsildar, Ariyalur alone had filed his

written statement. The District Collector, Ariyalur as well as the Revenue

Divisional Officer, Ariyalur did not deem it fit to file their written

statement. In the written statement, the third respondent had contended that

at the time of the original survey, no person had approached the revenue

authorities showing proof of their ownership and therefore, the property

was classified as Anadeenam. Thereafter, an enquiry had been conducted

and the revenue authorities came to learn that the suit properties belong to

the plaintiffs and possession was also with them. The defendants had taken

as a stand that if the plaintiffs were able to prove through documents that

they were the owners of the lands and continue to be in possession of the

said lands, the defendants had no objection to issue the patta to the

plaintiffs. The Principal District Munsif, Ariyalur, on considering the

evidence on record, namely, the oral evidence of P.W.1 and P.W.2 and

D.W.1 and Exhibits A1 to A14 and B1 and B2, decreed the suit in favour of

the plaintiffs as the plaintiffs had proved their possession as well as title to

the property.

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

7. Though the third defendant had stated in his written statement

that he had no objection to the grant of patta, if the plaintiffs could prove

the title and possession, however, they had challenged the judgment and

decree of the trial Court. The appellate Court upheld the judgement and

decree of the trial Court and dismissed the appeal filed by the defendants.

As against which, the appellants had filed S.A.No.933 of 2013 before this

Court.

8. The substantial question of law, which was raised in the appeal

was (a) whether the suit was barred by the jurisdiction as per Section 15 of

the Patta Pass Book Act and (b) whether the plaintiffs are entitled to get

patta through Court. This Court had considered the legal provisions and

held that on a perusal of Sub Sections (1) and (2) of 15 of the Tamil Nadu

Patta Pass Book Act, it was apparent that it does not operate as a bar to the

plaintiffs for filing the suit. This Court has also taken note of all the

contentions raised in the written statement filed by the third defendant and

ultimately, the appeal was also dismissed. It is against this judgment and

decree that the review has been filed.

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

9. The learned Advocate General appearing for the review

petitioners would submit that all is not well in the manner in which the suit

has been conducted and there appears to be a collusion between the third

defendant and the plaintiffs. He would draw the attention of this Court to

the written statement where the Tahsildar has gone on record to state that in

an enquiry conducted, they came to know that the suit property belonged to

the plaintiffs and they were in possession and that if the plantiffs were able

to produce documentary evidence, he had no objection to the Court granting

the relief. The learned Advocate General would submit that a very flimsy

defence has been taken and that earlier proceedings had not been disclosed

in the written statement and therefore, fraud has been played on Court. He

would therefore pray that the judgment needs to be reviewed.

10. However, a perusal of the grounds of review does not reflect

oral arguments now made by the learned Advocate General. No where in

the grounds of review has an averment made that the plaintiffs have played

fraud on Court. There is no explanation as to why the defendants, who are

in possession of all the revenue records, had not provided details, if any, to

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

the Court. The District Collector and the Revenue Division Officer, who

had been arrayed as defendants 1 and 2, had not chosen to file the written

statement. In fact, the defendants have filed the additional documents in the

form of the settlement register and an SLR as Exhibits B3 and B4 before the

lower appellate Court, namely, the Sub Court, Ariyalur. It also appears that

evidence had been taken in the appellate Court where the plaintiffs had also

marked Exhibits A15 to A18 and the documents filed on the side of the

defendants appears to have been marked by consent. The third defendant

had not got into the box to mark these documents. Now in the review

additional documents in the form of a typed set of papers have been filed.

However, no petition has been filed to receive these documents as

additional evidence. This Court has therefore not considered the same. The

only basis on which the review has been filed is on the ground of fraud.

11. The Hon'ble Supreme Court speaking through Justice Krishna

Iyer in the judgment reported as Sow Chandra Kanta and Another -vs-

Sheik Habib 1975 (1) SCC 674 had observed that "A review of a judgment

is a serious step and reluctant resort to it is proper where a glaring omission

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

or patent mistake or like grave error has crept in earlier by judicial

fallibility."

12. In its judgment reported as Kamlesh Verma -vs- Mayawati

and others reported in 2013 (8) SCC 320 after an in depth analysis of the

various case law on review petitions the learned Judges had observed that it

had been time and again reiterated in the various judicial pronouncements of

the Supreme Court that the jurisdiction and scope of review is not that of an

appeal and it can be entertained only if there is an error apparent on the face

of the record. The Bench summarized the principles in paragraph 20 of the

said judgment as follows:-

"20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922)

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] 20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.

13. Keeping these principles in mind if the case on hand is

analyzed it will be seen that it is not the Review Petitioners/Defendants'

case that they have discovered a new and important matter or evidence

which after the exercise of due diligence was not within their knowledge or

could not be produced by them. It is also not their case that the judgment

suffers from a mistake or an error apparent on the face of the record. None

of these grounds are stated in the instant review petition and even the oral

arguments of fraud have not been taken nor substantiated by the Review

Petitioners.

14. Further a mere perusal of the grounds would clearly

demonstrate that the Review Petitioners' / defendants are only trying to

re-argue the appeal in the guise of a review petition. In ground No.11, the

Review Petitioners have elaborated as follows:-

"11. The Hon'ble Court ought to have taken into consideration the contention of the learned Government

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

Advocate (CS) of the appellants to the effect that the suit itself is barred U/s.15 of the Patta Pass Book Act, 1983 (Tamil Nadu Act 4 of 1986). The Hon'ble High Court would have considered that Sub Sections 1 and 2 of Section 15 of the above Act does not operate as a bar for the respondent to file the concerned suit."

This is the first substantial question of law that was answered by this Court

in the judgment under review.

15. In the absence of essential pre-requisite for maintaining a

review petition, the review petition filed by the defendants has to fail and

accordingly, the review petition stand dismissed. No costs.

22.07.2021

Index: Yes/No

Internet: Yes/No

srn

https://www.mhc.tn.gov.in/judis/ Review Petition No.91 of 2019

P.T.ASHA, J

srn