Madras High Court
Guruvammal vs Visveswaran on 29 April, 2022
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
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 1/17 https://www.mhc.tn.gov.in/judis 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 2/17 https://www.mhc.tn.gov.in/judis 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 3/17 https://www.mhc.tn.gov.in/judis 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 4/17 https://www.mhc.tn.gov.in/judis 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 5/17 https://www.mhc.tn.gov.in/judis 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- 6/17 https://www.mhc.tn.gov.in/judis 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. 7/17 https://www.mhc.tn.gov.in/judis
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 8/17 https://www.mhc.tn.gov.in/judis (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 9/17 https://www.mhc.tn.gov.in/judis 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 10/17 https://www.mhc.tn.gov.in/judis 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 11/17 https://www.mhc.tn.gov.in/judis 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 12/17 https://www.mhc.tn.gov.in/judis 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 13/17 https://www.mhc.tn.gov.in/judis 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 14/17 https://www.mhc.tn.gov.in/judis 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 15/17 https://www.mhc.tn.gov.in/judis 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.
16/17 https://www.mhc.tn.gov.in/judis 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.
17/17 https://www.mhc.tn.gov.in/judis