Madras High Court
The District Collector vs Mahesh Durai ... 1St on 22 December, 2020
Author: R.Mahadevan
Bench: R.Mahadevan
Rev.Aplc.(MD).No.65 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
Rev.Aplc.(MD)No.65 of 2020
The District Collector,
Sivagangai District,
Sivagangai. ... Petitioner/1st Respondent
Vs.
1.Mahesh Durai ... 1st Respondent/Appellant
2.D.S.K.Madhuranthaki Nachiya
3.Banumathi Nachiyar
4.N.Reghuraj
5.Rajalakshmi
6.Lakshmipriya
7.M/s.L.G.Balakrishna and Brothers,
Rep. By its Managing Director,
Having Office at
16/14A Krishnarajapuram Road,
Ganapathy Post,
Coimbatore. ... Respondents 2 to 7 /
Respondents 2 to 7
Prayer: Review Application filed under Order XLVII Rule 1 of C.P.C.,
against the order made in S.A(MD)No.495 of 2015, dated 05.02.2016.
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Rev.Aplc.(MD).No.65 of 2020
For Petitioner : Mr.VR.Shanmuganathan,
Special Government Pleader
For R – 1 : Mr.Yogesh Kannadasan
For R – 2 : Mr.G.Prabhu Rajadurai
For R – 3 : Mr.K.Vinoharan
For RR 4 to 7 : No appearance
ORDER
The present Review Application arises out of the order dated 05.02.2016 passed by this Court, in S.A.(MD)No.495 of 2015.
2.The facts leading to the filing of this review application are as follows:
The first respondent / plaintiff filed a suit in O.S.No.90 of 2010 on the file of the Sub Court, Sivagangai, against the defendants, for declaration and for permanent injunction. The trial Court, after full fledged trial, decreed the suit in favour of the first respondent / plaintiff.
Challenging the same, the review petitioner / first defendant preferred an appeal in A.S.No.9 of 2012 before the learned District Judge, Sivagangai, which was allowed on 27.07.2015. Aggrieved over the same, the first respondent / plaintiff preferred an appeal in S.A(MD)No.495 of 2015, which was allowed on 05.02.2016. Hence, the review petitioner/first http://www.judis.nic.in 2/13 Rev.Aplc.(MD).No.65 of 2020 defendant is before this Court with the present review application.
3.According to the learned Special Government Pleader appearing for the review petitioner / first defendant, the suit schedule property, which is situated at Paiyur Pillaivayal Village, was taken over by the Government on 07.09.1949 under the Madras State (Abolition and Conversion into Ryotwari) Act, 1948; patta was issued in respect of S.No.91, Paiyur Pillaivayal Village, in favour of Shanmugaraja only to an extent of 44 acres and 50 cents; and the suit schedule property was already sold to the seventh respondent through a registered sale deed. The learned Special Government Pleader further submitted that the first respondent / plaintiff has failed to prove that the suit schedule property was allotted to him through partition and he has not produced any revenue records to support his claim, however, this Court has allowed the second appeal by setting aside the judgment and decree passed by the lower appellate court and confirming the judgment and decree passed by the trial Court. Therefore, the learned Special Government Pleader sought to review the order passed by this Court.
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4.On the other hand, the learned counsel appearing for the first respondent / plaintiff submitted that the first respondent / plaintiff's grandfather by name, D.Shanmuga Raja owned an extent of 100 acres in Paimash No.109 in Paiyur Pillaivayal Village, Sivagangai Taluk; during the survey and settlement period, the said Paimash No.109 was sub- divided into various numbers; Ryotwari patta was granted in respect of Survey No.91 measuring to an extent of 44.57 acres in the year 1958 in his favour and the same was entered in the Settlement Land Register of the year 1958 and again in the year 1963; and the said D.Shanmuga Raja continued to be the owner of the property till his death in the year 1963 and after his demise, the legal heirs inherited the suit property. The learned counsel further submitted that in the year 2003, the first respondent/ plaintiff, who is one of the legal heirs of D.Shanmuga Raja, noticed that a portion of the land allotted to his share was occupied by the Government and the property comprised in Survey No.91 was sub divided into 91/1 to 91/10, which compelled him to approach various revenue authorities to make necessary corrections in the revenue records; ultimately, patta was issued in respect of the property in Survey Nos. 91/1, 7, 8 and 9 measuring to a total extent of 7.40.5 hectares; however, by order dated 03.09.2008, the review petitioner / first defendant http://www.judis.nic.in 4/13 Rev.Aplc.(MD).No.65 of 2020 cancelled the patta already granted to the first respondent / plaintiff on 14.12.2005, which necessitated to institute the suit in O.S.No.90 of 2010. It is also submitted that due to oral partition, the plaintiff was allotted one acre of land comprised in the said survey number; a mistake had crept-in at the earliest point of time by the Government, while UDR scheme was implemented; and considering those aspects, the trial Court decreed the suit in favour of the first respondent / plaintiff, which was affirmed by this Court in SA.(MD)No.495 of 2015. Thus, according to the learned counsel, no interference by way of review, is required to the well considered judgment passed by this Court.
5.The learned counsel for the second respondent/second defendant submitted that the trial Court, after examining the oral and documentary evidence, decreed the suit in favour of the first respondent / plaintiff, by judgment and decree dated 23.12.2011, which was challenged by the Review petitioner / first defendant in A.S.No.9/2012 before the District Court, Sivagangai; the lower appellate court reversed the well considered judgment passed by the trial Court by judgment dated 27.07.2015, against which, the first respondent / plaintiff preferred a second appeal; this Court, after hearing both sides, rightly allowed the second appeal by http://www.judis.nic.in 5/13 Rev.Aplc.(MD).No.65 of 2020 judgment dated 05.02.2016; and hence, there is no necessity to review the said judgment passed by this Court.
6.The learned counsel for the third respondent / third defendant made his submission supporting the claim made by the first respondent / plaintiff.
7.Heard the learned Special Government Pleader appearing for the review petitioner as well as the learned counsel for the respondents 1, 2 and 3 and perused the materials available on record, more particularly, the order sought to be reviewed herein.
8.The facts remain undisputed are that the suit was filed for declaration and for permanent injunction, which was decreed in favour of the first respondent / plaintiff. The review petitioner / first defendant went on appeal, which was allowed. Aggrieved over the same, the first respondent / plaintiff filed a second appeal. The said second appeal was allowed, by judgment and decree of this Court dated 05.02.2016, which is sought to be reviewed herein.
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9.It is seen from the judgment arising from which is the present review application, that this Court has considered all the points raised by the parties and answered the substantial questions of law in favour of the first respondent / plaintiff. While doing so, this Court has observed that by cogent evidence, it was proved that the suit property originally belonged to one Shanmuga raja and patta No.371 was granted in respect of S.No.91 under the UDR Scheme and the same was not cancelled by any competent authority under Estate Abolition Act and the possession and enjoyment of Shanmuga Raja was not interfered with before and after passing of the said Act. It was further observed by this Court that the wrong entries made by the revenue authorities in the revenue records in favour of Govindasamy Naidu in respect of S.No.91 by Ex.B4 and Ex.B6 was not legally correct and the SLR (Ex.A2) and other documents Exs.A14 and Exs.B19 and 20 established that the plaintiff and his predecessors are in possession and enjoyment of the suit property and the same was also accepted by the revenue officials and therefore, there was no iota of evidence to claim that the suit property is belonging to the Government. Ultimately, this Court has allowed the second appeal by confirming the judgment and decree passed by the trial Court, which in http://www.judis.nic.in 7/13 Rev.Aplc.(MD).No.65 of 2020 the opinion of this Court, cannot be reviewed, as there is no error apparent on the face of the record.
10.At this juncture, it is also 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 Vs. Mayawati and others [(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 Vs. 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 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 http://www.judis.nic.in 8/13 Rev.Aplc.(MD).No.65 of 2020 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-open concluded adjudications. This Court in Jain Studios Limited Vs. 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.
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;
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(iii) Any other sufficient reason.
The words “any other sufficient reason” have been interpreted in Chhajju Ram Vs. Neki ( 1921-22) 49 IA 144 and approved by this Court in Moran Mar Basselios Catholicos Vs. 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 Vs. 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 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.” http://www.judis.nic.in 10/13 Rev.Aplc.(MD).No.65 of 2020
11.In Asharphi Devi Vs. State of Uttar Pradesh [(2019) 5 SCC 86], it was observed 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 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.”
12.In Shanti Conductors Vs. Assam Electricity Board and others reported in (2020) 2 SCC 677, the 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 Vs. 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 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”.” http://www.judis.nic.in 11/13 Rev.Aplc.(MD).No.65 of 2020
13.Applying the aforesaid legal proposition of law to the facts of the present case, this Court finds no reason to review the judgment and decree passed by this Court in the second appeal.
14.Accordingly, the review application fails and is dismissed. No costs.
22.12.2020 Index : Yes/No Internet: Yes/No ps Note: In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate / litigant concerned.
To The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
R.MAHADEVAN, J.
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