Karnataka High Court
Sri S Rudrappa vs Sri K V Govindaraju on 6 February, 2017
Author: Ashok B.Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY 2017
BEFORE
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
R.P.NO.101 OF 2016
IN
R.S.A.NO.2083 OF 2007
BETWEEN
Sri S.Rudrappa,
S/o.Late Sheshappa,
Aged about 68 years,
R/at Near Mutturayaswamy Temple,
Sunkadakatte, Vishwaneedam Post,
Bengaluru - 560 091. ... Petitioner
(By Sri Padmanabha V.Mahale, Senior Advocate
for Sri R.P.Somashekaraiah, Advocate)
AND:
1. Sri K.V.Govindaraju,
S/o.Sri Venkatachallaiah,
Aged about 55 years,
R/at No.304, 5th Cross,
Lakshmidevi Nagar,
Bengaluru - 560 096.
2. Sri Kodandaramaiah,
S/o.P.Ramaiah,
Aged about 60 years,
R/at No.232, 8th Main,
4th Cross, 2nd Block,
Nandini Layout,
Bengaluru - 560 096.
3. (a) Smt.K.Mahalakshmi,
D/o.Late Krishnamachari,
Aged about 60 years.
3 (b) Smt.Ramamani,
D/o.Late Krishnamachari,
Aged about 60 years.
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Both are R/at Iggalur Village,
Attibele Hobli, Anekal Taluk,
Bengaluru Urban District. ... Respondents
(By Sri M.Shivappa, Senior Advocate for
Sri M.C.Harish Kumar, Advocate for R1 & R2)
This review petition is filed under Order 47 Rule 1 of CPC
praying to review the judgment and decree dated 18.01.2016
made in R.S.A.No.2083/2007 and to remand the matter to the II
Addl. Civil Judge, Sr.Dn. Bengaluru Rural District, Bengaluru to
decide the suit O.S.770/1998 afresh by permitting the petitioner
to file written statement, documents and list of witnesses and
giving opportunity to all the parties in accordance with law, etc.
This petition, coming on for admission, this day, the Court
made the following:
ORDER
The petitioners are seeking the review of the judgment, dated 18.01.2016 passed in R.S.A.No.2083/2007.
2. The facts of the case in brief are that the respondent Nos.1 and 2 filed O.S.No.770/1998 against Krishnamachari, the review petitioner and one H.M.Venkatappa seeking the relief of declaration that the second plaintiff be declared as the owner of the 'B' schedule property and that the sale deed, dated 19.3.1996 executed by the defendant No.1 in favour of the defendant No.2 is not binding upon the plaintiffs and for consequential permanent injunction. On the dismissal of the said suit, the plaintiffs filed R.A.No.96/2006, which was also dismissed by the Court of the District and Sessions Judge, 3 Bangalore Rural District, by its judgment, dated 18.6.2007. The two concurrent judgments were challenged by filing R.S.A.No.2083/2007. In the said second appeal proceedings, this Court formulated the following substantial question of law.
"Sanjeevachar, testator of Will dated
28.1.1989 (Ex.P3) having bequeathed land
measuring 4 acres 25 guntas in Survey No.164 of Kadabagere Village, jointly in favour of the first plaintiff and the first defendant, whether the courts below were justified in recording a finding that defendant No.1 alone without the plaintiff was entitled to convey 1 acre and 28 ½ guntas of land in Survey No.164 to the second defendant by executing the sale deed dated 19.3.1996(Ex.P15)?"
3. Answering the afore-extracted substantial question of law in the negative, the second appeal was allowed. The two concurrent judgments were set aside and the suit was decreed.
4. Sri Padmanabha V. Mahale, the learned Senior Counsel appearing for Sri R.P.Somashekaraiah for the petitioner submits that the question formulated above cannot be called as the substantial question of law at all. What is framed is a pure question of fact. Without prejudice to this 4 submission, he submits that the said question is not at all answered by this Court.
5. He raised the argument with reference to Section 44 of the Transfer of Property Act, 1882 that there was no legal impediment for the first defendant to convey his half undivided share in the property to the defendant No.2. As the co-owner it was open to the first defendant to sell his share to the defendant No.2.
6. He submits that the sale deed, dated 19.3.1996 executed by the defendant No.1 in favour of the defendant No.2 is earlier in point of time. The sale deed, dated 10.4.1996 was jointly executed by the plaintiff No.1 and the defendant No.1 in favour of the plaintiff No.2. The earlier sale transaction has to prevail over the later sale transaction. He submits that there is no prayer in the suit for invalidating the sale deed, dated 19.3.1996; the plaintiffs are content seeking the declaration that the said sale deed is not binding upon them.
7. He submits that in the suit proceedings, the defendant No.1 was served with the notice but remained ex- parte. The defendant No.2 was never served with the notice because of the wrong address given by the plaintiffs. Urging 5 these submissions he would contend that the matter ought to have been remanded to the Trial Court for fresh enquiry in accordance with law.
8. Sri M.Shivappa, learned Senior Counsel appearing for the respondent Nos. 1 and 2 submits that the argument with reference to Section 44 of the Transfer of Property Act was indeed raised and negatived. He submits that prior to the execution of the sale deed by the defendant No.1 in favour of the defendant No.2, the plaintiff No.1 and defendant No.1 had entered into the sale agreement, dated 22.11.1994 (Ex.P8) with the plaintiff No.2. The said sale agreement contains the recitals regarding the receipt of giving and taking of the advance sale consideration, possession, etc. He submits that the defendant No.2 was served with the notice in R.A.No.96/2006 even when the very same address was given both in the plaint and in the appeal memorandum in R.A.No.96/2006.
9. The submissions of the learned counsel have received my thoughtful consideration. An 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. In 6 saying so, I am fortified by the Apex Court's decision in the case of SATYANARAYAN LAXMINARAYAN BHAVANAPPA vs. MALLIKARJUN THIRUMALE reported in AIR 1960 SC
137.
10. In its decision in the case of S.BAGIRATHI AMMAL vs. PALANI ROMAN CATHOLIC MISSION reported in (2009) 10 SCC 464, the Apex Court has reiterated that an error contemplated under Rule 1 of Order 47 CPC for review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be something more than a mere error and it must be one which must be manifest on the face of the record. If an error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie. Under the guise of review, the parties are not entitled to the rehearing of the same issue.
11. I may also usefully refer to the Apex Court's judgment in the case of HARDAS vs. SMT.USHA RANI BANIK AND OTHERS reported in AIR 2006 SC 1634, wherein it is held that the provisions contained in Section 114 of CPC and Order 47 do not postulate the rehearing of the dispute because a party had not highlighted all the aspects of 7 the case or could perhaps have argued them more forcibly and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict.
12. The Hon'ble Supreme Court in the case of HARINAGAR SUGAR MILLS LTD. AND ANOTHER Vs. STATE OF BIHAR AND OTHERS reported in (2006) 1 SCC 509 has expressed the considered view that the appellants cannot be allowed to re-agitate the points, which had already been decided by the court. If two views are possible on a point, the same would not be a ground for reviewing the said order, as it would not fall within the scope of the review jurisdiction.
13. The Hon'ble Supreme Court in the case of SUBRAMANIAN SWAMY vs. STATE OF TAMILNADU reported in (2014) 5 SCC 75 has held that even an erroneous decision cannot be a ground for the Court to undertake review, as the first and foremost requirement of entertaining a review petition is that the order, review of which is sought, suffers from any error apparent on the face of the order and in absence of any such error, the review petition cannot be entertained.
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14. Following the above-said decisions and not finding any error apparent on the face of the record, I decline to review the judgment, dated 18.01.2016. The review petition is dismissed. No order as to costs.
Sd/-
JUDGE VGR/cm