Madras High Court
Guruvammal vs Visveswaran on 29 April, 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date : 29.4.2022
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Review Application (MD) No.25 of 2022
in
S.A.(MD) No.265 of 2021
and
C.M.P.(MD) No.629 of 2022
1. Guruvammal
2. Seetha Lakshmi @ Lakshmi
3. Jothi Lakshmi
4. Ananthan @ Muruganantham
Applicants
vs.
1. Visveswaran
2. Radhakrishnan
3. Nagalakshmi @ Renuga
4. Pandiyammal @ Murugayammal
5. Nagaraj
Respondents
Review Application filed under Order XLVII Rule 1 and
Section 114 of CPC seeking to review the judgment and decree
dated 23.11.2021 passed in S.A.(MD) No.265 of 2021 on the file of
this court.
For Applicants : Mr.P.V.Gurudevaraj
ORDER
The present Review Application has been filed by the
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appellants/defendants 1 to 3 and 6 seeking to review the judgment
delivered by this court dated 23.11.2021 in S.A.(MD) No.265 of
2021 confirming the concurrent findings of the courts below in
granting the relief of declaration, recovery of possession and mesne
profits to the plaintiffs/respondents 1 and 2 herein.
2. The grounds taken by the applicants are as under:-
i) The order of this court is an error apparent on the face of
the record and it is to be reviewed. The material facts were
suppressed and not brought to the knowledge of this court.
ii) The plaintiffs cannot claim title to the suit property on
the basis of partition deeds Ex.A7 and A9 ignoring Exs.B11
settlement deed and Ex.B19 encumbrance certificate.
iii) When the plaintiffs are in possession of Door No.237
and the defendants are in possession of Door No.236, the plaintiffs
have purposely added the four boundaries of the defendants/review
applicants in the partition deed and without deciding such issue, the
plaintiffs do not have a right to evict the defendants/review
applicants, who are residing in Door No.236.
iv) Though the defendants were in permissive possession
as tenants from 28.9.1979 to 14.7.1985, the grandfather of the
plaintiffs one Subbaian Chettiar sold the property to the defendants
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on 15.7.1985 through Ex.X2 an unregistered sale deed and since
then, the defendants are in continuous possession of the suit
property for a period of 24 years and their possession is adverse to
the legal heirs of Subbaian Chettiar and not as a permissive
possession as tenant, however, the same was not properly
considered.
v) The enjoyment of the suit property by defendants for a
continuous period of 24 years on the basis of the unregistered sale
deed amounts to adverse possession.
vi) The plaintiffs are not entitled to get a decree without
proving the cause of action to the effect that the defendants paid the
rent till February 2007.
3. Heard the learned counsel appearing for the review
applicants and perused the materials available on record.
4. Before proceeding further, it is relevant to note that it is
the settled principle that it is not open to for this court, in a review
petition, to reappreciate the evidence and reach a different
conclusion, even if it is possible and the conclusion arrived at on
appreciation of evidence cannot be assailed in a review petition
unless it is shown that there is an error apparent on the face of the
record or for some other reason akin thereto. If the review
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petitioner is permitted to argue on a question of appreciation of
evidence it would amount to converting a review petition into an
appeal. A mere possibility of two views on a subject cannot be a
ground for review. 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. The error apparent on the face
of the record should not be an error which has to be fished out and
searched. The scope of review is limited and under the guise of
review, the petitioner cannot be permitted to reagitate and reargue
the questions, which have already been addressed and decided. The
scope of review has been reiterated by this Court from time to time.
5. In Muthulakalai and others vs. Packialakshmi
Ammal & others (2021 SCC OnLine Mad 10585), this court, by
referring to various decisions on the aspect of scope of Review
Application and the power of this court, dismissed a Review
Application filed by the plaintiffs in that matter and thereby declined
to review the order of dismissal passed by this court in a petition
seeking to condone the inordinate delay of 3963 days in filing the
second appeal as against the concurrent finding of the courts below.
The relevant portion of the decision is extracted hereunder for ready
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reference:-
"6. At the outset, it is to be noted that the power of
this Court under the review jurisdiction is very
limited. In the decision of the Supreme Court in
Kamlesh Verma v. Mayawati [(2013) 8 SCC 320], it
was held as follows:—
“17. In a review petition, it is not open to the Court
to reappreciate the evidence and reach a different
conclusion, even if that is possible. Conclusion arrived
at on appreciation of evidence cannot be assailed in a
review petition unless it is shown that there is an
error apparent on the face of the record or for some
other reason akin thereto. This Court in Kerala SEB v.
Hitech Electrothermics and Hydropower Limited
reported in (2005) 6 SCC 651 held as under:—
“10…… In a review petition it is not open to this
Court to reappreciate the evidence and reach a
different conclusion, even if that is possible. The
learned counsel for the Board at best sought to
impress us that the correspondence exchanged
between the parties did not support the
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conclusion reached by this Court. We are afraid
such a submission cannot be permitted to be
advanced in a review petition. The appreciation
of evidence on record is fully within the domain
of the appellate Court. If on appreciation of the
evidence produced, the Court records a finding of
fact and reaches a conclusion, that conclusion
cannot be assailed in a review petition unless it is
shown that there is an error apparent on the face
of the record or for some reason akin thereto. It
has not been contended before us that there is
any error apparent on the face of the record. To
permit the review petitioner to argue on a
question of appreciation of evidence would
amount to converting a review petition into an
appeal in disguise.”
18. Review is not rehearing of an original matter. The
power of review cannot be confused with appellate
power which enables a superior Court to correct all
errors committed by a subordinate Court. A repetition
of old and overruled argument is not enough to re-
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open concluded adjudications. This Court in Jain
Studios Limited v. Shin Satellite Public Company
Limited reported in (2006) 5 SCC 501 held as under:
—
“11. So far as the grievance of the applicant on
merits is concerned, the learned counsel for the
opponent is right in submitting that virtually the
applicant seeks the same relief which had been
sought at the time of arguing the main matter
and had been negatived. Once such a prayer had
been refused, no review petition would lie which
convert rehearing of the original matter. It is
settled law that the power of review cannot be
confused with appellate power which enables a
superior Court to correct all errors committed by
a subordinate Court. It is not rehearing of an
original matter. A repetition of old and overruled
argument is not enough to reopen concluded
adjudications. The power of review can be
exercised with extreme care, caution and
circumspection and only in exceptional cases.
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12. When a prayer to appoint an arbitrator by the
applicant herein had been made at the time when
the arbitration petition was heard and was
rejected, the same relief cannot be sought by an
indirect method by filing a review petition. Such
petition, in my opinion, is in the nature of ‘second
innings’ which is impermissible and unwarranted
and cannot be granted.”
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
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(1921-22) 49 IA 144 and approved by this Court in
Moran Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius AIR 1954 SC 526 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 Limited (2013) 8 SCC 337.
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
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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.
(ix) Review is not maintainable when the
same relief sought at the time of arguing the main
matter had been negatived.”
7. In Asharphi Devi v. State of Uttar
Pradesh [(2019) 5 SCC 86], it was observed by the
supreme court as under:—
“18. It is settled law that every error whether
factual or legal cannot be made subject-matter of
review under Order 47 Rule 1 of the Code though
it can be made subject-matter of appeal arising
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out of such order. In other words, in order to
attract the provisions of Order 47 Rule 1 of the
Code, the error/mistake must be apparent on the
face of the record of the case.”
8. In Shanti Conductors v. Assam Electricity
Board, [(2020) 2 SCC 677], the Hon'ble Supreme
Court held as follows:—
“25…………. The scope of review is limited and
under the guise of review, the petitioner cannot
be permitted to reagitate and reargue the
questions, which have already been addressed
and decided. The scope of review has been
reiterated by this Court from time to time. It is
sufficient to refer to the Judgment of this Court in
Parsion Devi v. Sumitri Devi reported in (1997) 8
SCC 715, wherein in para 9 the following has
been laid down:
“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
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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 it is not permissible for an
erroneous decision to be “reheard and
corrected”. A review petition, it must be
remembered has a limited purpose and cannot
be allowed to be “an appeal in disguise”.”
9. From the above settled position of law, it
is evident that an order can be subjected to review,
when there is a material error, manifest on the face
of the order that undermine its soundness or results
in miscarriage of Justice. Whereas, in the case at
hand, the petitioners have sought to review the order
dismissing the petition to condone the delay of 3963
days in filing the second appeal. While dismissing the
delay petition, this court has observed that though
the expression ‘sufficient cause’ should receive a
liberal consideration, the reasons stated by the
petitioners cannot be hold to be sufficient cause. It
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was further observed that no proper and sufficient
reasons have been adduced for condoning such
inordinate delay. Therefore, the order passed
dismissing the condone delay petition, cannot be
reviewed, as the petitioners have not raised a new
plea in this application and they have adduced the
same reasons as stated in the condone delay petition.
10. In such view of the matter, the review
application sans merits and is liable to be dismissed.
Accordingly, this review application stands
dismissed."
6. Coming to the case on hand, the review applicants are
appellants/defendants 1 to 3 and 6, who had already suffered the
concurrent findings of the courts below in the suit seeking for
declaration, recovery of possession and mesne profits. The crux of
the case is that the suit property and an adjacent property originally
belonged to one Subbaian Chettiar, the grandfather of the plaintiffs
through a valid purchase. According to the plaintiffs, they got right
and title to the same vide two partition deeds, Exs.A7 and A9 dated
10.10.1997 and 31.1.2008 evidencing the partition that took place in
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their family after the demise of the original the grandfather on
22.8.1987.
7. Whileso, one Sangili, husband of the first defendant and
father of defendants 2 to 7 was a tenant in the suit property and he
passed away on 3.8.2006 and after his demise, his legal heirs
stopped paying rent and thereby the plaintiffs sent a lawyer notice
on 24.3.2009 demanding payment of rent and hand over possession.
Since the defendants replied to the notice denying the relationship of
landlord and tenant and claimed title to the suit property through an
unregistered sale deed dated 15.7.1985 alleged to have been
executed by Subbaian Chettiar in favour of Sangili, the entire issue
has arisen and the consequent suit came to be filed.
8. Per contra, the defendants/review petitioners took a
stand canvassing that the unregistered sale deed dated 15.7.1985 is
a valid one and based on that, Sangili and his wife, the first
defendant had settled the same in favour of their daughter the
second defendant on 7.2.1997, under Ex.B11 and thereby the
second defendant is the absolute owner of the suit property. The
tenancy for the period from 28.9.1979 to 14.7.1985 has been
admitted by the defendants whereas, the claim of the
defendants/review petitioners over the suit property is based on two
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tier concept. On one side, they claim title to the suit property
through the unregistered sale deed dated 15.7.1985, which is
subjected to proceedings under Section 41 of the Stamp Act, 1899.
On the other side, by keeping a lien on the claim of title through
unregistered sale deed, they claim title to the suit property by
adverse possession contending that their possession was not
objected by the plaintiffs, moreso, when the defendants had not paid
any rent. The defendants intend to take shelter by contending that
the plaintiffs have not produced any proof for rents paid by the
defendants.
9. Having considered the entire relevant materials available
on record alone, this court came to the conclusion that the case of
the defendants/review petitioners revolves around the unregistered
sale deed which they claim to have been executed by the original
owner Subbian Chettiar, and this court, disbelieving the same, had
dismissed the Second Appeal filed by them. In the opinion of this
court, there is no error apparent on the face of the record warranting
a review. This court had already arrived at a view to the effect that
Ex.B11 settlement deed is not a valid document in the eye of law in
view of the fact that the said Sangili himself had not derived any
right to the suit property through the unregistered Sale Deed. The
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court had already rendered a finding to the effect that the defendant
cannot be permitted to claim title to the suit property through the
unregistered sale deed on one hand and through adverse possession
on the other hand. Sofar as the concept of landlord tenant
relationship is concerned, it is proved through the contents of the
unregistered sale deed which the defendant themselves rely.
Therefore, this court is of the view that there is no error apparent on
the face of the record warranting a review.
10. The Review Application is liable to be dismissed and
accordingly, it is dismissed. The connected Miscellaneous Petition is
also dismissed.
29.4.2022
Index: Yes/No.
Internet: Yes/No.
ssk.
To
1. Additional District Judge (FTC),
Theni.
2. Subordinate Judge,
Theni.
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A.D.JAGADISH CHANDIRA, J.
Ssk.
Rev. Appln. (MD) No.25 of 2022
and
C.M.P.(MD) No.629 of 2022
29.4.2022.
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