Calcutta High Court
Paramita Das vs Pranati Sarkar And Ors. on 27 June, 2003
Equivalent citations: AIR2004CAL22, AIR 2004 CALCUTTA 22, (2004) 1 CALLT 113, (2004) 1 ICC 326, (2004) 2 CIVLJ 526, (2003) 4 CAL HN 18
JUDGMENT 1. Petitioner/Defendant No. 4 has filed the instant application for review of the judgment and order passed by this Court on 27-3-2000 in F.A. No. 395 of 1984 arising out of Title Suit No. 20 of 1971 of the Fifth Court of the learned Subordinate Judge, Alipore, South 24- Parganas. 2. The facts leading to the instant application for review may briefly be narrated thus. An appeal being F.A. No. 395 of 1984 was preferred by the appellants against the judgment and decree dated 9-3-83 passed by the learned Subordinate Judge, 5th Court, Alipore in a final decree proceeding in Title Suit No. 20 of 1971. The original defendant No. 2 was the appellant on whose demise his heirs have been substituted in his place. Premises No. 63 is a dwelling house and a part of the said premises had been allotted to the appellant. There is ony one stair case which had been allotted to defendant No. 4. It was submitted by the learned Advocate for the Appellant in the course of hearing of the appeal that as some rooms in the first floor had been allotted in favour of his client, the stair case ought to have been kept joint and in support of the said contention reliance had been placed on Mira's joint property and partition at Page 361 wherein the law in this regard had been stated in the following terms :-- "A courtyard or staircase belonging to the co-sharers have to be used by the co-owners without prejudicially affecting or putting the other co-owner to a detriment. Even a courtyard or stair case which cannot be conveniently partitioned must be kept common for the use of all the co-owners. If a co-owner in a suit for partition opposed the partition of the courtyard and stair case belonging to the co-owners as incapable of partition, but the trial Court partitioned them and the first appellate Court affirmed such partition, the matter came up before the Punjab High Court in second appeal. It was argued by the defendants that the courtyard and stair case and the platform are incapable of partition. Mahajan, J. of the Punjab High Court has observed that according to Mitakshara and Vyavahara Mayukh the rights of way and rights of well and water belonging to joint family are indivisible and if there is no evidence that at the partition of the family estate they were divided the law will hold that they continue to retain the character of indivisibility attached to them by law having regard to the nature of the rights in question. The learned Judge has extended this principle of Hindu law in respect of the courtyard, platform and stair case and set aside the decree for partition and declared that they shall be held common by the parties as they are incapable of partition." 3. Reliance had also been placed on Shantaram Balkrishna v. Waman Gopal Wadekar reported in AIR 1923 Bombay 85 and Dina Nath v. Mansa Ram in this regard. While deciding the appeal, the Division Bench fully analysed the matter in the light of the principles of law mentioned in its judgment and held that the stair case in question should remain joint and the decree of the learned Court below has been modified to the extent that the stair case in question shall remain joint. 4. Aggrieved, the petitioner/defendant No. 4 in whose favour the stair case was originally allotted has sought review of the judgment and order passed by the Division Bench in the said appeal. It has been contended by Mr. D. Roy Chowdhury the learned Advocate for the petitioner/defendant No. 4 that without exclusive allotment of the stair case the portion allotted in favour of the petitioner will serve no fruitful purpose and since there is an error of law in findings of the Division Bench that the stair case cannot be allotted in favour of any person and the law requires that the same should be kept common, such error should be rectified by reviewing the judgment and order passed by the Division Bench in the said appeal. 5. Mr. S. Dasgupta the learned Senior Advocate for the contesting appellants presently figuring as O.P. Nos. 1 and 2 in the application for review has seriously opposed the contention raised by Mr. Roy Chowdhury on behalf of the petitioner/defendant No. 4 and urged that no such review of the order as sought by the petitioner is permissible in law. He has cited the case of Parsion Devi v. Sumitri Devi wherein it has been held at page 719 (para 9) that 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 and an error which is not self-evident and 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 no doubt settled law that an erroneous decision, even if there be any, cannot be reheard and corrected by the Court in exercise of its jurisdiction under Order 47 Rule 1 CPC. An erroneous decision cannot be categorised as an error apparent on the face of the record. The review petition can only be entertained on the ground of error apparent on the face of the record and not on any other ground. This principle of law is well settled and enunciated in Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.) . 6. In view of the well settled principles of law as referred to above we are clearly of the view that the aforesaid ground in the application for review filed by the petitioner/ defendant No. 4 cannot have any legal basis inasmuch as the same cannot be characterised as an error apparent on the face of the record discernible from the judgment and order passed by the Division Bench on 27th March, 2000 in F.A. No. 395 of 1984. 7. While rejecting the aforesaid contentions raised by the learned Advocate for the petitioner/defendant No. 4, we must not be oblivious of the fact that the stair case which was originally allotted in the share of petitioner/defendant No. 4 has subsequently been treated to be joint and left out of exclusive share of petitioner/defendant No. 4 as a result of which the area originally allotted in favour of the petitioner/defendant No. 4 has subsequently been reduced and because of such reduction of the area of the property in share of the petitioner/defendant No. 4 proper compensation only needs to be awarded to the petitioner/defendant No. 4 on the principle of owelty. Mr. Dasgupta the learned Advocate for the appellants who are figuring as O.P. Nos. 1 and 2 in the application for review has contended that if this Court is so inclined then the valuation of the stair case can properly be assessed and in that event his clients are ready to pay half of price of the staircase so assessed to petitioner/defendant No. 4. Mr. Roy Chowdhury the learned Advocate for petitioner/defendant No. 4, on the other hand, has submitted that his client is agreeable to occupy the portion allotted in favour of the appellants in exchange of the portion allotted in favour of the defendant No. 4 inclusive of allotment of the stair case. Keeping in view that the Court exercising the power of review has got very limited jurisdiction, the proposal put forward by Mr. Roy Chowdhury regarding exchange of allotment of shares cannot be given effect to as that would be tantamount to re-hearing of the appeal. The dispute in the appeal was as regards the grant of joint possession of the stair case. The Appeal Court upheld the contention of the appellant on that aspect of the case. The same cannot now be reopened. Rather we find that the ends of justice would be met if monetary compensation is paid to the petitioner. Viewed in this perspective we direct that the learned trial Court shall get valuation of the stair case assessed, if not already done, by an Advocate Commissioner with the assistance of an approved valuer, if needed, and after such ascertainment of valuation of the stair case the learned Trial Court will direct the appellant to pay half of price of the stair case to the present petitioner/defendant No. 4. The remuneration of the Advocate Commissioner and the Valuer, so appointed, will be borne by the contesting parties in equal share. If the valuation had already been made for the purpose of allotment of shares and based thereon the allotment of the properties had been made then in that case the said valuation may be adopted for the purpose of payment to the present petitioner/defendant No. 4. Subject to the above directions the application for review is dismissed. 8. No order as to costs. 9. Let a copy of this order be sent down to the learned Court below forthwith. 10. Xerox certified copy of this order if applied for, be given to the parties as expeditiously as possible. M.H.S. Ansari, J.
11. I agree.