Meera Bhanja vs Nirmala Kumari Choudhury

Supreme Court16 November 1994S.B Majmudar · B.P. Jeevan Reddy

Neutral1994 INSC 522
SCR[1994] Supp (5) SCR 503

Ratio decidendi

The rule this decision rests on

The power of review under Order 47, Rule 1 of the Code of Civil Procedure is strictly limited and may be exercised only on discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking review, or on the ground of some mistake or error apparent on the face of the record, or on any analogous ground, but not on the ground that the decision was erroneous on merits. An error apparent on the face of the record, which may justify exercise of review jurisdiction, must be such an error as strikes one on merely looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions; an error requiring lengthy and complicated arguments to establish it cannot be cured through review proceedings. A review court which purports to reconsider the entire oral and documentary evidence and re-appreciates facts already considered by the earlier decision, thereby reaching different conclusions on the merits, has exceeded the scope of Order 47, Rule 1 and has impermissibly sat in appeal rather than exercised its review jurisdiction, regardless of whether it styles its reasoning as correcting a patent error.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

PETITIONER:MEERA BHANJA

Vs.

RESPONDENT:NIRMALA KUMARI CHOUDHURY

DATE OF JUDGMENT16/11/1994

BENCH:MAJMUDAR S.B. (J)BENCH:MAJMUDAR S.B. (J)JEEVAN REDDY, B.P. (J)

CITATION:1995 AIR 455 1995 SCC (1) 170JT 1994 (7) 536 1994 SCALE (4)985

ACT:

HEADNOTE:

JUDGMENT:

The Judgment of the Court was delivered byMAJMUDAR, J.- Special leave granted. We have heard learnedcounsel for the contesting parties finally in this appeal.Accordingly, this appeal is being finally disposed of bythis judgment.

2.This appeal by special leave under Article 136 of theConstitution involves a short question about the reviewjurisdiction of the High Court in setting aside the earlierdecision of the High Court in Second Appeal No. 569 of 1973.A few relevant facts leading up to this appeal are requiredto be noticed at the outset. The appellant is the originalplaintiff who had filed a Title Suit No. 67 of 1970 in thesecond court of the learned Subordinate Judge at Midnaporein West Bengal. In that suit, the appellant-plaintiffclaimed partition and separate possession of two plots,namely, C.S. Plot Nos. 73 and 74. Her case was that herhusband Dr Umaprasanna Bhanja and respondent-defendant'shusband Dr Phanindra Nath Choudhury were close friends, thatby two registered documents they had purchased the aforesaidtwo plots and that the plaintiff-appellant became entitledto the northern halves of the two plots totalling IOdecimal. Her case is that the parties dug a well in themiddle portion of the respective plots. It was furthercontended that the defendant-respondent in disregard of theplaintiff-appellant's interests, started construction ofsome buildings, encroaching upon her area. Consequently,the aforesaid suit was filed claiming partition of two plotsby metes and bounds. The plaintiff-appellant alternativelyprayed for declaration of title and sought permanentinjunction in respect of C.S. Plot Nos. 73 and 74.

3.The learned trial Judge by his judgment and decree dated15-3-1971 held that the plaintiff-appellant was entitled topartition of C.S. Plot No. 73 and so far as C.S. Plot No. 74was concerned the appellant was held entitled to a decree ofdeclaration of title in respect of specific 5 decimals ofland and permanent injunction against the defendant to thatextent.

4.Being aggrieved by the judgment and decree of the trialcourt, the respondent-defendant preferred Title Appeal No.322 of 1971, while the appellant filed cross-objectionsagainst dismissal of her suit for partition of C.S. Plot No.

74. The learned Additional District Judge by his orderdated 29-6-1972, directed that the appellant would get adeclaration of title, confirmation of possession andinjunction, but so far as the appellant's prayer forpartition of C.S. Plot No. 74 was concerned, the appellatecourt confirmed the learned Subordinate Judge's judgment.

5.The appellant being aggrieved by the order of the learnedAdditional District Judge, preferred a second appeal to theHigh Court of Calcutta, being appeal from Appellate DecreeNo. 569 of 1973. The Division Bench of the High Court byits judgment and order dated 3-8-1978, allowed the secondappeal and held that the plaintiff-appellant was entitled topartition of C.S. Plot No. 74 also. The respondent-defendant being aggrieved by the said172judgment dated 3-8-1978, filed a review petition under Order47, Rule I of the Code of Civil Procedure, challenging thefindings of the Division Bench of the High Court. Thereview petition was heard on 5-9-1984 by another DivisionBench of the High Court, and was partly allowed so far asthe C.S. Plot No. 74 was concerned. It set aside the decreefor partition as granted by the earlier Division Bench insecond appeal and directed that the second appeal be re-heard so far as the question of partition of C.S. Plot No.74 was concerned. The review petition was, however,dismissed so far as the partition decree for C.S. Plot No.73 as passed by the trial court and as affirmed by the HighCourt, went. Thereafter, by a later order dated 8-7-1986,Second Appeal No. 569 of 1973 was ordered to be dismissed inrespect of C.S. Plot No. 74. It is this decision of thelatter Division Bench of the High Court dismissing secondappeal of the appellant qua C.S. Plot No. 74 as passedpursuant to the earlier review order, that has been broughtin challenge before this Court by special leave as notedearlier.

6. The learned counsel appearing for the appellantvehemently submitted that though the Review Bench had heldthat there was an apparent error committed by the earlierDivision Bench in allowing the second appeal in connectionwith C.S. Plot No. 74, in substance, the latter DivisionBench had sat in appeal over the decision of the earlierDivision Bench and had passed an order wherein itreappreciated the evidence, both oral and documentary, whileholding that the plaintiff's case for a partition andseparate possession of C.S. Plot No. 74 was notmaintainable, that this approach of the Review Bench wasbeyond the scope and outside the jurisdiction conferred onthe court under Order 47, Rule 1, and that in fact there wasno apparent error which could justify the impugned reviewjudgment and the consequential order of 8-7-1986. On theother hand, learned counsel for the respondent submittedthat as the earlier Division Bench had not properlyconsidered all the relevant aspects and had left many loosethreads to be tied, the latter Division Bench was perfectlyjustified in taking the view that the earlier decision ofthe High Court suffered from a patent error of law entitlingthe Review Bench to interfere with the findings and theorder of the earlier Division Bench.

7. Having given our anxious consideration to these rivalcontentions, we find that this appeal is required to beallowed.

8. It is well settled that the review proceedings are notby way of an appeal and have to be strictly confined to thescope and ambit of Order 47, Rule 1, CPC. In connectionwith the limitation of the powers of the court under Order47, Rule 1, while dealing with similar jurisdictionavailable to the High Court while seeking to review theorders under Article 226 of the Constitution of India, thisCourt, in the case of Aribam Tuleshwar Sharma v. AribamPishak Sharmal, speaking through Chinnappa Reddy, J., hasmade the following pertinent observations: (SCC p. 390, para

3)1 (1979) 4 SCC 389: AIR 1979 SC 1047173"It is true as observed by this Court inShivdeo Singh v. State of Punjab2, there isnothing in Article 226 of the Constitution topreclude the High Court from exercising thepower of review which inheres in every Courtof plenary jurisdiction to prevent miscarriageof justice or to correct grave and palpableerrors committed by it. But, there aredefinitive limits to the exercise of the powerof review. The power of review may beexercised on the discovery of new andimportant matter or evidence which, after theexercise of due diligence was not within theknowledge of the person seeking the review orcould not be produced by him at the time whenthe order was made; it may be exercised wheresome mistake or error apparent on the face ofthe record is found; it may also be exercisedon any analogous ground. But, it may not beexercised on the ground that the decision waserroneous on merits. That would be theprovince of a court of appeal. A power ofreview is not to be confused with appellatepower which may enable an appellate court tocorrect all manner of errors committed by thesubordinate court."

9. Now it is also to be kept in view that in the impugnedjudgment, the Division Bench of the High Court has clearlyobserved that they were entertaining the review petitiononly on the ground of error apparent on the face of therecord and not on any other ground. So far as that aspectis concerned, it has to be kept in view that an errorapparent on the face of record must be such an error whichmust strike one on mere looking at the record and would notrequire any long-drawn process of reasoning on points wherethere may conceivably be two opinions. We may usefullyrefer to the observations of this Court in the case ofSatyanarayan Laxminarayan Hegde v. Mallikarjun BhavanappaTirumale3 wherein, K.C. Das Gupta, J., speaking for theCourt has made the following observations in connection withan error apparent on the face of the record:

An error which has to be established by along-drawn process of reasoning on pointswhere there may conceivably be two opinionscan hardly be said to be an error apparent onthe face of the record. Where an allegederror is far from self-evident and if it canbe established, it has to be established, bylengthy and complicated arguments, such anerror cannot be cured by a writ of certiorariaccording to the rule governing the powers ofthe superior court to issue such a writ.

10.In the light of this settled legal position let us tryto see whether in the present case the latter Division Benchwhile dealing with the review petition had overstepped thelimits of jurisdiction under Order 47, Rule 1 and whether ithad resorted to re-appreciation of evidence by almostsitting in appeal over the decision reached by the earlierDivision Bench.

11.We have to keep in view the fact that the controversyin the present proceedings centres only around partibilityof C.S. Plot No. 74. So far as C.S. Plot No. 73 isconcerned, the decree for partition and separate2 AIR 1963 SC 19093 AIR 1960 SC 137: (1960) 1 SCR 890174possession as passed in favour of the appellant has becomefinal as observed by the Review Bench itself, whiledismissing the review petition for that plot. So far as thedisputed Plot No. 74 is concerned, the High Court in secondappeal, vide judgment dated 3-8-1978, clearly observed thatthe appellate court had passed a very laconic order, had notconsidered the cross objections and had disposed of thefirst appeal and, therefore, the High Court exercised powersunder Section 103 of CPC. While doing so the Division Benchof the High Court considered the documents of title for boththe plots, namely, C.S. Plot Nos. 73 and 74. So far as C.S.Plot No. 74 was concerned, on internal page 8 of the earlierjudgment, it was held that in place of C.S. Plot No. 74,three plots had emerged instead during R.S. operations.They were Plot Nos. 1507, 1508 and 1509, the areabeing .0070, .508 and .0770 respectively. R.S. khatianshowed the joint proprietorship of both the parties in R.S.plots and there had been no separate khatian in respect ofseparate ownership of the plaintiff or the defendant. Thenthe Division Bench considered the documents of title. Sofar as Plot No. 74 was concerned, the Division Benchconsidered Exh. G, being Kobala executed by Jitendra NathBanerjee in favour of defendant on 11-9-1940. The plot areawas described as IO decimal. Then the Division Benchconsidered Exh. 4-A, being Kobala dated 14-4-1947 executedby respondent-defendant in favour of the appellant inrespect of .05 decimal of land out of Plot No. 74. It wasstated in the Kobala that half of Plot No. 74 was being soldto the plaintiff by the defendant. The Division Bench alsonoted the fact that the total area of C.S. Plot No. 74was .10 decimal. The Division Bench then noted that KhatianNo. 274 of Monza Panchberia prepared during the recentrevisional settlement had been marked Exh. 3 and Khatian No.293 related to R.S. Plot Nos. 1510 and 1511. Those twokhatians were in the name of both the plaintiff and thedefendant as already mentioned. Thereafter, the DivisionBench considered the oral evidence and came to theconclusion that the structures were constructed jointly bythe parties and a common wall was raised for the convenienceof use, the whole wall being used in common. The DivisionBench considered the defendant's version and rejected thesame by holding that from the khatian executed by thedefendant in favour of the plaintiff no statement was foundor indicated that any structure was sold to the plaintiff asstated by defendant's witness 1 or as mentioned in thewritten statement. Nothing was shown that any demarcatedportion of C.S. Plot No. 74 was sold to the plaintiff.Rather from a reading of the Kobala it was quite clear thathalf share of Plot No. 74 was sold by the defendant to theplaintiff. The story of sale of structure along with theland of C.S. Plot No. 74 could not be accepted. It wasfurther held that from evidence there was no doubt to holdthat there is vacant land on Plot No. 74 which is common toboth and there is no sign of demarcation. The defendant'shusband admitted about the joint possession of at least someportion of C.S. Plot Nos. 73 and 74. Theory of showingmarks of demarcation cannot be accepted. It was next heldthat the evidence showed that at the time of purchase notonly the parties but their husbands were best of friends.The175nature of the building set up by the parties with apartition wall in between also supports this finding. Therewas no reliable evidence that the parties purchased anydemarcated portions of land. Rather the evidence showedthat even at present the parties are in possession at leastof some portions of the disputed land in common. It wasthen found that after the purchase of the land by theparties, they started possessing the same as parts of C.S.Plot Nos. 73 and 74 and the same was sold by their vendorstreating the same as such and, therefore, the question ofaccretions subsequently to the C.S. plots did not arise. Itwas ultimately held that the parties purchased theproperties without partition and that there was no partitionby metes and bounds. Accordingly, the plaintiff was foundentitled to a decree for partition even for C.S. Plot No.

74.

12.This decision of the Division Bench dated 3-8-1978allowing the second appeal of the appellant for C.S. PlotNo. 74 was sought to be reviewed by the latter DivisionBench as noted earlier. In the impugned review judgmentwhich is the basis of the ultimate consequential decision insecond appeal after review, curiously enough the DivisionBench having noted the limited nature of its jurisdictionunder Order 47, Rule 1, reconsidered the entire evidencepertaining to C.S. Plot No. 74 and almost sat in appealagainst the findings and judgment recorded by the earlierDivision Bench. In the last paragraph of internal page 8and at page 9, the entire documentary evidence wasreconsidered and so far as C.S. Plot No. 74 was concerned,the latter Division Bench came to the following conclusions:

"In our view the Division Bench, however,committed errors apparent on the face of therecord in considering the oral and documentaryevidence regarding title and possession of thetwo parties in respect of R.S. Plot No. 74,Khatian No. 26 of the aforesaid Monza. ThisCourt did not reverse the findings made by thecourts of fact that the plaintiff had failedto prove that she had jointly purchased thisplot with the defendant by the Kobala (Ext.G-1) dated 17-9-1940. The two courts in factaccepted the defendant's case that she alonehad purchased from its original owner,Jitendra Nath Banerjee, the entire Plot No.

74. Thereafter, on 16-4-1947, the defendantout of her said Plot No. 74, sold 5 decimalsof land on the northern side to the plaintiff.The Division Bench had clearly committed anerror of law apparent on the face of therecord by overlooking that by her Kobala Exh.r/a dated 16-4-1947 the plaintiff hadpurchased a demarcated portion of the Plot No.74 and not undivided half portion of the saidplot. Mr Moitra, learned Advocate for theapplicant, has taken us to both the Kobalas(Exts. 4/a and G-1). The said deed inplaintiff's favour inter alia recited:

`Sale deed for a house containing three rooms,with brick walls, doors and windows, onekitchen and a Privy.'The vendor Nirmala in the said Kobala alsorecited:

`...with the said plot on the southern side inmy share .05 decimal, excluding that, in theremaining share .05 decimal,176homestead land with three brick walled tinshed rooms, a kitchen and a Privy in thenorth.'The schedule of the said Kobala dated 23-4-1947 in plaintiffs' favour set out the samedescription of the property conveyed out ofPlot No. 74 by the defendant in plaintiffs'favour. Therefore the Division Bench, withrespect, was not right in holding: 'We do not(sic) anything so that we may get that anydemarcated portion of Plot No. 74 was sold tothe plaintiff'. Rather from a reading of theKobala it was clear that half share of PlotNo. 74 was sold by the defendant to theplaintiff. We have already set out extractsfrom the Kobala Ext. 4/a in plaintiffs' favourwhich clearly showed that the defendant soldcertain structures along the land in thenorthern portion of Plot No. 74 to theplaintiff and the Division Bench had committedan error apparent on the face of the record bydeclining to accept the defence story of saleof structures along with the demarcated landout of C.S. Plot No. 74. The Division Benchalso overlooked the clear finding by the trialcourt that according to the evidence includingthe Commissioner's report the well had beenexcavated not in the portion in plaintiff'soccupation but in the defendant's portion ofPlot No. 73. During revisional surveysettlement operations the C.S. Plot No. 74 hadbeen split up into three R.S. plots, namely,R.S. Plot No. 1507 measuring .0070 acres, PlotNo. 1508 measuring 0.508 acres and R.S. PlotNo. 1509 measuring .0770 acres. In R.S.khatian the defendant was recorded as inexclusive occupation of R.S. Plot No. 1509measuring 0.770 acres while the Plot No. 1508was recorded in occupation of the plaintiff."

13. On the basis of the aforesaid finding reached by thelatter Division Bench on re-appreciation of oral anddocumentary evidence, the conclusion is reached in theimpugned review judgment that the plaintiff's case ofjointly purchasing with the defendant Plot No. 74 by theKobala dated 17-9-1940 had not been established, that theplaintiff had by his Kobala (Ext. 4/a) dated 16-4-1947,purchased demarcated 5 decimals of land and structuresthereon out of Plot No. 74 and accordingly it was held thatthe Division Bench earlier had committed an apparent erroron the face of the record in passing a preliminary decreefor partition in respect of Plot No. 74 and that is how thereview petition was allowed. The latter Division Bench alsofound fault with the reasoning adopted by the earlierDivision Bench in this connection and made the followingobservations which are at internal page 16 of the judgment:

"In our view, while deciding the second appealthe Division Bench had failed to consider thereal nature of contest between the two partiesin respect of the C.S. Plot No. 74. We havealready mentioned that the plaintiff hadpurchased from the defendant a demarcatednorthern portion including structures and landmeasuring 5 decimals out of Plot No. 74 whichduring R.S. Operations were subdivided intothree plots, namely,177Nos. 1507, 1508 and 1509. The aggregate areaof the said three plots was 1348 while thearea of C.S. Plot No. 74 was 10 decimals. Theplaintiff occupied R.S. Plot No. 1508measuring 0.508 acres. She and the defendantwere recorded as jointly occupying the drainand passage in Plot No. 1507 measuring .0070acre. The plaintiff cannot have any grievancemerely because the R.S. records showed thatthe defendant was possessing .0770 acres ofR.S. Plot No. 1509. The defendant hadpreviously acquired the entire C.S. Plot No.74 and out of the said plot then solddemarcated .05 decimals to the plaintiff. Infact, there was also increase in the land ofplaintiff's occupation."

14.On internal page 19 in the review judgment, it wasfurther observed that even the learned advocates of bothsides and the Division Bench failed to consider the case ofthe plaintiff regarding Plot No. 74 and this was because ofthe misconception about Commission's report and otherevidence regarding C.S. Plot No. 74 and regarding the stallarea.

15.In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled lega l position indicated by us earlier. In substance, the Review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8- 1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.

178

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