Vs. Nirmala Kumari Choudhury  INSC 588 (16 November 1994)
S.B. (J) Majmudar S.B. (J) Jeevan Reddy, B.P. (J)
1995 AIR 455 1995 SCC (1) 170 JT 1994 (7) 536 1994 SCALE (4)985
Judgment of the Court was delivered by MAJMUDAR, J.- Special leave granted. We
have heard learned counsel for the contesting parties finally in this appeal.
this appeal is being finally disposed of by this judgment.
appeal by special leave under Article 136 of the Constitution involves a short
question about the review jurisdiction of the High Court in setting aside the
earlier decision of the High Court in Second Appeal No. 569 of 1973.
relevant facts leading up to this appeal are required to be noticed at the
outset. The appellant is the original plaintiff who had filed a Title Suit No.
67 of 1970 in the second court of the learned Subordinate Judge at Midnapore in
West Bengal. In that suit, the
appellant-plaintiff claimed partition and separate possession of two plots,
namely, C.S. Plot Nos. 73 and 74. Her case was that her husband Dr Umaprasanna Bhanja
and respondent-defendant's husband Dr Phanindra Nath Choudhury were close
friends, that by two registered documents they had purchased the aforesaid two
plots and that the plaintiff-appellant became entitled to the northern halves
of the two plots totalling IO decimal. Her case is that the parties dug a well
in the middle portion of the respective plots. It was further contended that
the defendant-respondent in disregard of the plaintiff-appellant's interests,
started construction of some buildings, encroaching upon her area.
Consequently, the aforesaid suit was filed claiming partition of two plots by
metes and bounds. The plaintiff-appellant alternatively prayed for declaration
of title and sought permanent injunction in respect of C.S. Plot Nos. 73 and
learned trial Judge by his judgment and decree dated 15-3-1971 held that the
plaintiff-appellant was entitled to partition of C.S. Plot No. 73 and so far as
C.S. Plot No. 74 was concerned the appellant was held entitled to a decree of
declaration of title in respect of specific 5 decimals of land and permanent
injunction against the defendant to that extent.
aggrieved by the judgment and decree of the trial court, the
respondent-defendant preferred Title Appeal No. 322 of 1971, while the
appellant filed cross-objections against dismissal of her suit for partition of
C.S. Plot No. 74. The learned Additional District Judge by his order dated
29-6-1972, directed that the appellant would get a declaration of title,
confirmation of possession and injunction, but so far as the appellant's prayer
for partition of C.S. Plot No. 74 was concerned, the appellate court confirmed
the learned Subordinate Judge's judgment.
appellant being aggrieved by the order of the learned Additional District
Judge, preferred a second appeal to the High Court of Calcutta, being appeal
from Appellate Decree No. 569 of 1973. The Division Bench of the High Court by
its judgment and order dated 3-8-1978, allowed the second appeal and held that
the plaintiff-appellant was entitled to partition of C.S. Plot No. 74 also. The
respondent- defendant being aggrieved by the said 172 judgment dated 3-8-1978,
filed a review petition under Order 47, Rule I of the Code of Civil Procedure,
challenging the findings of the Division Bench of the High Court. The review
petition was heard on 5-9-1984 by another Division Bench of the High Court, and
was partly allowed so far as the C.S. Plot No. 74 was concerned. It set aside
the decree for partition as granted by the earlier Division Bench in second
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 High Court, went. Thereafter,
by a later order dated 8-7-1986, Second Appeal No. 569 of 1973 was
ordered to be dismissed in respect of C.S. Plot No. 74. It is this decision of
the latter Division Bench of the High Court dismissing second appeal of the
appellant qua C.S. Plot No. 74 as passed pursuant to the earlier review order,
that has been brought in challenge before this Court by special leave as noted
learned counsel appearing for the appellant vehemently submitted that though
the Review Bench had held that there was an apparent error committed by the
earlier Division Bench in allowing the second appeal in connection with C.S.
Plot No. 74, in substance, the latter Division Bench had sat in appeal over the
decision of the earlier Division Bench and had passed an order wherein it reappreciated
the evidence, both oral and documentary, while holding that the plaintiff's
case for a partition and separate possession of C.S. Plot No. 74 was not
maintainable, that this approach of the Review Bench was beyond the scope and
outside the jurisdiction conferred on the court under Order 47, Rule 1, and
that in fact there was no apparent error which could justify the impugned
review judgment and the consequential order of 8-7-1986. On the other hand,
learned counsel for the respondent submitted that as the earlier Division Bench
had not properly considered all the relevant aspects and had left many loose
threads to be tied, the latter Division Bench was perfectly justified in taking
the view that the earlier decision of the High Court suffered from a patent
error of law entitling the Review Bench to interfere with the findings and the
order of the earlier Division Bench.
Having given our anxious consideration to these rival contentions, we find that
this appeal is required to be allowed.
is well settled that the review proceedings are not by way of an appeal and
have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC.
In connection with the limitation of the powers of the court under Order 47,
Rule 1, while dealing with similar jurisdiction available to the High Court
while seeking to review the orders under Article 226 of the Constitution of
India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal,
speaking through Chinnappa Reddy, J., has made the following pertinent
observations: (SCC p. 390, para 3) 1 (1979) 4 SCC 389: AIR 1979 SC 1047 173
"It is true as observed by this Court in Shivdeo Singh v. State of
Punjab2, there is nothing in Article 226 of the Constitution to preclude the
High Court from exercising the power of review which inheres in every Court of
plenary jurisdiction to prevent miscarriage of justice or to correct grave and
palpable errors committed by it. But, there are definitive limits to the
exercise of the power of review. The power of review may be exercised on the
discovery of new and important matter or evidence which, after the exercise of
due diligence was not within the knowledge of the person seeking the review or
could not be produced by him at the time when the order was made; it may be
exercised where some mistake or error apparent on the face of the record is
found; it may also be exercised on any analogous ground. But, it may not be
exercised on the ground that the decision was erroneous on merits. That would
be the province of a court of appeal. A power of review is not to be confused
with appellate power which may enable an appellate court to correct all manner
of errors committed by the subordinate court."
it is also to be kept in view that in the impugned judgment, the Division Bench
of the High Court has clearly observed that they were entertaining the review
petition only on the ground of error apparent on the face of the record and not
on any other ground. So far as that aspect is concerned, it has to be kept in
view that an error apparent on the face of record must be such an error which
must strike one on mere looking at the record and would not require any
long-drawn process of reasoning on points where there may conceivably be two
opinions. We may usefully refer to the observations of this Court in the case
of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale3 wherein,
K.C. Das Gupta, J., speaking for the Court has made the following observations
in connection with an error apparent on the face of the record:
error which has to be established by a long-drawn process of reasoning on
points where there may conceivably be two opinions can hardly be said to be an
error apparent on the face of the record. Where an alleged error is far from
self-evident and if it can be established, it has to be established, by lengthy
and complicated arguments, such an error cannot be cured by a writ of
certiorari according to the rule governing the powers of the superior court to
issue such a writ.
the light of this settled legal position let us try to see whether in the
present case the latter Division Bench while dealing with the review petition
had overstepped the limits of jurisdiction under Order 47, Rule 1 and whether
it had resorted to re-appreciation of evidence by almost sitting in appeal over
the decision reached by the earlier Division Bench.
have to keep in view the fact that the controversy in the present proceedings centres
only around partibility of C.S. Plot No. 74. So far as C.S. Plot No. 73 is
concerned, the decree for partition and separate 2 AIR 1963 SC 1909 3 AIR 1960
SC 137: (1960) 1 SCR 890 174 possession as passed in favour of the appellant
has become final as observed by the Review Bench itself, while dismissing the
review petition for that plot. So far as the disputed Plot No. 74 is concerned,
the High Court in second appeal, vide judgment dated 3-8-1978, clearly observed
that the appellate court had passed a very laconic order, had not considered
the cross objections and had disposed of the first appeal and, therefore, the
High Court exercised powers under Section 103 of CPC. While doing so the
Division Bench of the High Court considered the documents of title for both the
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 earlier judgment, it was held that in
place of C.S. Plot No. 74, three plots had emerged instead during R.S.
were Plot Nos. 1507, 1508 and 1509, the area being .0070, .508 and .0770
respectively. R.S. khatian showed the joint proprietorship of both the parties
in R.S. plots and there had been no separate khatian in respect of separate
ownership of the plaintiff or the defendant. Then the Division Bench considered
the documents of title. So far as Plot No. 74 was concerned, the Division Bench
considered Exh. G, being Kobala executed by Jitendra Nath Banerjee in favour of
defendant on 11-9-1940. The plot area was described as IO
decimal. Then the Division Bench considered Exh. 4-A, being Kobala dated
14-4-1947 executed by respondent-defendant in favour of the appellant in
respect of .05 decimal of land out of Plot No. 74. It was stated in the Kobala
that half of Plot No. 74 was being sold to the plaintiff by the defendant. The
Division Bench also noted the fact that the total area of C.S. Plot No. 74 was
.10 decimal. The Division Bench then noted that Khatian No. 274 of Monza Panchberia
prepared during the recent revisional settlement had been marked Exh. 3 and Khatian
No. 293 related to R.S. Plot Nos. 1510 and 1511. Those two khatians were in the
name of both the plaintiff and the defendant as already mentioned. Thereafter,
the Division Bench considered the oral evidence and came to the conclusion that
the structures were constructed jointly by the parties and a common wall was
raised for the convenience of use, the whole wall being used in common. The
Division Bench considered the defendant's version and rejected the same by
holding that from the khatian executed by the defendant in favour of the
plaintiff no statement was found or indicated that any structure was sold to
the plaintiff as stated by defendant's witness 1 or as mentioned in the written
statement. Nothing was shown that any demarcated portion of C.S. Plot No. 74
was sold to the plaintiff.
from a reading of the Kobala it was quite clear that half share of Plot No. 74
was sold by the defendant to the plaintiff. The story of sale of structure
along with the land of C.S. Plot No. 74 could not be accepted. It was further
held that from evidence there was no doubt to hold that there is vacant land on
Plot No. 74 which is common to both and there is no sign of demarcation. The
defendant's husband admitted about the joint possession of at least some
portion of C.S. Plot Nos. 73 and 74. Theory of showing marks of demarcation
cannot be accepted. It was next held that the evidence showed that at the time
of purchase not only the parties but their husbands were best of friends.
175 nature of the building set up by the parties with a partition wall in
between also supports this finding. There was no reliable evidence that the
parties purchased any demarcated portions of land. Rather the evidence showed
that even at present the parties are in possession at least of some portions of
the disputed land in common. It was then found that after the purchase of the
land by the parties, they started possessing the same as parts of C.S. Plot
Nos. 73 and 74 and the same was sold by their vendors treating the same as such
and, therefore, the question of accretions subsequently to the C.S. plots did
not arise. It was ultimately held that the parties purchased the properties
without partition and that there was no partition by metes and bounds.
Accordingly, the plaintiff was found entitled to a decree for partition even
for C.S. Plot No. 74.
decision of the Division Bench dated 3-8-1978 allowing the second appeal of the
appellant for C.S. Plot No. 74 was sought to be reviewed by the latter Division
Bench as noted earlier. In the impugned review judgment which is the basis of
the ultimate consequential decision in second appeal after review, curiously
enough the Division Bench having noted the limited nature of its jurisdiction
under Order 47, Rule 1, reconsidered the entire evidence pertaining to C.S.
Plot No. 74 and almost sat in appeal against the findings and judgment recorded
by the earlier Division Bench. In the last paragraph of internal page 8 and at
page 9, the entire documentary evidence was reconsidered and so far as C.S.
Plot No. 74 was concerned, the latter Division Bench came to the following
our view the Division Bench, however, committed errors apparent on the face of
the record in considering the oral and documentar y evidence regarding title
and possession of the two parties in respect of R.S. Plot No. 74, Khatian No.
26 of the aforesaid Monza. This Court did not reverse the
findings made by the courts of fact that the plaintiff had failed to prove that
she had jointly purchased this plot with the defendant by the Kobala (Ext. G-1)
dated 17-9-1940. The two courts in fact accepted the defendant's case that she
alone had purchased from its original owner, Jitendra Nath Banerjee, the entire
Plot No. 74. Thereafter, on 16-4-1947, the
defendant out of her said Plot No. 74, sold 5 decimals of land on the northern
side to the plaintiff.
Division Bench had clearly committed an error of law apparent on the face of
the record by overlooking that by her Kobala Exh. r/a dated 16-4-1947 the plaintiff had purchased a demarcated portion of
the Plot No. 74 and not undivided half portion of the said plot. Mr Moitra,
learned Advocate for the applicant, has taken us to both the Kobalas (Exts. 4/a
and G-1). The said deed in plaintiff's favour inter alia recited:
`Sale deed for a house containing three rooms, with brick
walls, doors and windows, one kitchen and a Privy.' The vendor Nirmala in the
said Kobala also recited:
...with the said plot on the southern side in my share .05 decimal, excluding
that, in the remaining share .05 decimal, 176 homestead land with three brick
walled tin shed rooms, a kitchen and a Privy in the north.' The schedule of the
said Kobala dated 23-4- 1947 in plaintiffs' favour set out the same description
of the property conveyed out of Plot No. 74 by the defendant in plaintiffs' favour.
Therefore the Division Bench, with respect, was not right in holding: 'We do
not (sic) anything so that we may get that any demarcated portion of Plot No.
74 was sold to the plaintiff'. Rather from a reading of the Kobala it was clear
that half share of Plot No. 74 was sold by the defendant to the plaintiff. We
have already set out extracts from the Kobala Ext. 4/a in plaintiffs' favour
which clearly showed that the defendant sold certain structures along the land
in the northern portion of Plot No. 74 to the plaintiff and the Division Bench
had committed an error apparent on the face of the record by declining to
accept the defence story of sale of structures along with the demarcated land
out of C.S. Plot No. 74. The Division Bench also overlooked the clear finding
by the tria l court that according to the evidence including the Commissioner's
report the well had been excavated not in the portion in plaintiff's occupation
but in the defendant's portion of Plot No. 73. During revisional survey
settlement operations the C.S. Plot No. 74 had been split up into three R.S.
plots, namely, R.S. Plot No. 1507 measuring .0070 acres, Plot No. 1508
measuring 0.508 acres and R.S. Plot No. 1509 measuring .0770 acres.
R.S. khatian the defendant was recorded as in exclusive occupation of R.S. Plot
No. 1509 measuring 0.770 acres while the Plot No. 1508 was recorded in
occupation of the plaintiff."
the basis of the aforesaid finding reached by the latter Division Bench on
re-appreciation of oral and documentary evidence, the conclusion is reached in
the impugned review judgment that the plaintiff's case of jointly purchasing
with the defendant Plot No. 74 by the Kobala dated 17-9-1940 had not been
established, that the plaintiff had by his Kobala (Ext. 4/a) dated 16-4-1947,
purchased demarcated 5 decimals of land and structures thereon out of Plot No.
74 and accordingly it was held that the Division Bench earlier had committed an
apparent error on the face of the record in passing a preliminary decree for
partition in respect of Plot No. 74 and that is how the review petition was
allowed. The latter Division Bench also found fault with the reasoning adopted
by the earlier Division Bench in this connection and made the following
observations which are at internal page 16 of the judgment:
our view, while deciding the second appeal the Division Bench had failed to
consider the real nature of contest between the two parties in respect of the
C.S. Plot No. 74. We have already mentioned that the plaintiff had purchased
from the defendant a demarcated northern portion including structures and land
measuring 5 decimals out of Plot No. 74 which during R.S. Operations were
subdivided into three plots, namely, 177 Nos. 1507, 1508 and 1509. The
aggregate area of the said three plots was 1348 while the area of C.S. Plot No.
74 was 10 decimals. The plaintiff occupied R.S. Plot No. 1508 measuring 0.508
acres. She and the defendant were recorded as jointly occupying the drain and
passage in Plot No. 1507 measuring .0070 acre. The plaintiff cannot have any
grievance merely because the R.S. records showed that the defendant was
possessing .0770 acres of R.S. Plot No. 1509. The defendant had previously
acquired the entire C.S. Plot No. 74 and out of the said plot then sold
demarcated .05 decimals to the plaintiff. In fact, there was also increase in
the land of plaintiff's occupation." 14.On internal page 19 in the review
judgment, it was further observed that even the learned advocates of both sides
and the Division Bench failed to consider the case of the plaintiff regarding
Plot No. 74 and this was because of the misconception about Commission's report
and other evidence regarding C.S. Plot No. 74 and regarding the stall area.
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.
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.