Orissa High Court
Suresh Kumar Agarwal vs Bimala Bhue And Others on 8 November, 2017
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
RVWPET NO. 275 OF 2011
In the matter of an application under Order XLVII, Rule 1 of the
Code of Civil Procedure for review of judgment dated 14.03.2011
passed in W.A. No.229 of 2008.
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Suresh Kumar Agarwal ......... Petitioner
Versus
Bimala Bhue and others ......... Opp.Parties
For petitioner : M/s. S. Mishra-1,
S.K. Mohanty, R.K. Kar,
(Mrs.) S. Mohanty and J.R.
Samal, Advocates
For opposite parties : M/s. N.K. Sahu, B. Swain,
and S.K. Sahoo, Advocates
[O.Ps. No. 1, 2 and 3]
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HONOURABLE DR. JUSTICE B.R. SARANGI
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Date of hearing: 26.10.2017 : Date of Judgment: 08.11.2017
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DR. B.R. SARANGI, J. The petitioner, who is the son of the writ
petitioner in OJC No. 1281 of 1995, has filed this application
seeking review of the judgment dated 14.03.2011 passed by this
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Court in W.A. No. 229 of 2008 declining to interfere with the
judgment dated 31.10.2008 passed by the learned Single Judge in
OJC No. 1281 of 1995, being devoid of merits.
2. The factual matrix of the case essential for deciding the
application for review, shortly put, is as follows:
2.1 The predecessor of opposite parties no.1 to 3, namely,
Haribhajan Jhankar was the recorded owner of the disputed land,
i.e., Hamid Settlement (H.S.) Plot No. 247(P) under Khata No. 269
measuring an area Ac.1.35 decimals corresponding to M.S. Plot
Nos. 4446, 4449 and 4445 under Khata No. 2525 measuring an
area Ac. 1.20 decimals. The Record of Rights (ROR) in respect of
the said land stands recorded in the name of late Haribhajan
Jhankar and his ancestors. The status of the disputed land was
"Jhankari Land" and the same was settled in Village Police
Abolition Case No. 1 of 1967/68 in favour of late Haribhajan
Jhankar, the predecessor of opposite parties no.1 to 3, under
Section 4 of the Orissa Officers of Village Police (Abolition) Act,
1964 (for short "VPA Act, 1964"). Against the said order of
settlement, though the provision for appeal under Section 8 of the
VPA Act was there, no appeal whatsoever was preferred and the
order of settlement was made final. Consequentially, in the Major
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Settlement the ROR was published in the name of Haribhajan
Jhankar.
2.2 Late Haribhajan Jhankar filed an application under
Section 23-A of the Orissa Land Reforms Act before the Collector,
Bargarh, which was registered as OLR Case No. 104 of 1987, for
restoration of possession of the disputed land on the ground that
he belonged to Scheduled Tribe and the scheduled land was his
rayati land and the predecessor of the review petitioner, being in
unauthorized possession of the said land, the same may be
restored to him. It was further contended that the disputed land
being not a "Jhankari Land" was settled in favour of the
petitioner's predecessor-in-interest in Village Police Abolition Case
No. 1 of 1966 and his name had been recorded in Major
Settlement, which ended on 28.06.1970. Pursuant to such
proceeding, notice was issued and the father of the review
petitioner appeared and filed objection in the said OLR case taking
following pleas:
"i) A portion of Hamid Settlement Plot No. 247 was
exchanged by the order of Deputy Commissioner in
Revenue Case No. 1/10-91 of 1933.
(ii) The said land was recorded in the name of
Dakua Pradhan who became the Raiyat of the said land
and the name of Dakua Pradhan was entered in
Mutation Register in Mutation Entry No. 17.
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(iii) Dakua Pradhan surrender the mutated plot
alongwith Hamid Settlement Plot No. 247/3380 to the
Gountia prior to 1945.
(iv) Gountia, Manabodh Das of the Village executed a
Registered Permanent Raiyati Patta in favour of him
(Late Parsuram Agarwal) on 14.6.1945 and accordingly
he is in possession with full right, title and interest over
the disputed land.
(v) He is in possession over the land for more than
40 years with the knowledge of Parsuram Agarwal and
accordingly acquired title by adverse possession.
(vi) The settlement made by the authority in favour of
Parsuram Agrawal in Village Police Abolition Act is
without jurisdiction and is a nullity".
It was further contended that the land under H.S. Plots No.247/1,
measuring Ac.0.47 dec. and No.247/3380 measuring Ac.0.40 dec.
was acquired on 14.06.1945, on payment of proper consideration,
from the then 'Maufidar Gountia' and since then the predecessor
of the review petitioner is in possession of the same by
constructing permanent structure over it, which is for more than
12 years, without any interruption and disturbance from any
quarter. Consequentially, right accrued in favour of the
predecessor of the opposite parties no.1 to 3 had been
extinguished long since and any settlement of land would be
illegal and without jurisdiction. Considering such objection and
contention raised by the predecessor of the review petitioner, the
Sub-Collector in appeal came to hold that the predecessor of the
review petitioner, namely, Parasaram Agrawal had no title over the
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disputed land and he was in unauthorized possession over the
land belonging to scheduled caste, and as such, he was liable to
be evicted from the land in question. By so holding, the Sub-
Collector allowed the application filed by the predecessor of
opposite parties no.1 to 3 under Section 23-A of the OLR Act and
passed the order of eviction against the father of the review
petitioner.
2.3 Challenging the said order of eviction, the father of the
review petitioner, namely, Parasaram Agrawal preferred OLR
Appeal No.19 of 1989, which was allowed by the Addl. District
Magistrate, Sambalpur on 05.09.1990 by observing that he was
the rightful owner of the land by way of "Rayati Patta" from
'Maufidar Gountia' by registered sale deed no.131 dated
09.07.1945. It was further observed that in respect of plot no.4445 under M.S. Khata No.2525, which was recorded in the name of Sana Jhankar during the last settlement, the order passed by the Sub-Collector for eviction of father of the petitioner from the said land was justified and accordingly directed for eviction from the said land. But so far as plots no. 4446 and 4449 are concerned, it was held that the right of the father of the petitioner over the said plots was accepted. Aggrieved by the said 6 order passed by the Addl. District Magistrate, Parasaram Agrawal, the father of the review petitioner preferred OLR Revision Case No. 1 of 1991 in respect of plot no.4445, and Haribhanja Jhankar, the predecessor of the opposite parties no.1 to 3 preferred OLR Revision Case No.3 of 1991 in respect of plots no.4446 and 4449. Both the revisions were heard together. While hearing the said revisions, the Collector found that Section 23-A of the OLR Act came into force on 25.10.1976 and one has to prove his continuous possession to the knowledge of everybody openly, peacefully and without any interruption, to perfect the title by adverse possession or to extinguish the right of true owner. In absence of note possession in the Village Police Abolition Case, in Major settlement ROR and in view of the Revenue Inspector's report dated 05.01.1989 filed before the Sub-Divisional Officer (SDO) in OLR Case No.104 of 1987 showing that the disputed land was possessed by the review petitioner for seven years and the statement recorded by the Sub-Divisional Officer where Parasaram Agrawal stated that there was no house over the disputed plot from 1950 to 1981 and the admission that the construction of building during the hearing stage before the SDO, the claim of adverse possession through construction of house etc. was not 7 proved. It was also found that in the Major Settlement the type of disputed land in respect of plot no.4445 was recorded as MA: KHA (Mal Khari), and in respect of plots no.4446 and 4449 was recorded as 'Patita'. Had there been any construction on the aforesaid land, the type of land should have been modified and recorded as 'Gharabari'. Therefore, perfecting the title through adverse possession was not established. On such findings, the Collector, by his order dated 16.01.1995, allowed the OLR Revision Case No.3 of 1991 and dismissed OLR revision no.1 of 1991. Aggrieved by the order passed by the Collector rejecting the OLR Revision Case No.1 of 1991, father of the review petitioner, namely, Parasaram Agrawal, filed OJC No.1281 of 1995 before this Court. During pendency of the writ application, Parasaram Agrawal died on 25.07.2006. Therefore, the present review petitioner was brought on record by way of substitution in the said writ application.
2.4 After hearing learned counsel for the parties, learned Single Judge, by a reasoned order, came to hold that the writ petitioner (review petitioner) nowhere prayed that he was in possession of the disputed land continuously for more than 12 years with hostile animus to the knowledge of its true owner. The 8 predecessor of present opposite parties no. 1 to 3 deposed before the Sub-Collector that the writ petitioner was in possession of the said land since last 12 years, but that statement does not take away the burden of the writ petitioner to prove that he was in possession of the disputed land with hostile animus to the knowledge of the real owner. Consequentially, the learned Single Judge held that the claim of adverse possession cannot be accepted, even though the opposite party no.1 admitted that the possession of the writ petitioner was for last 12 years. A person claiming adverse possession is to specifically state the date from which he possessed the land with hostile animus to the knowledge of its real owner. Since that part is lacking, learned single Judge dismissed the writ petition.
2.5 Challenging the judgment of the learned Single Judge, the review petitioner, being the legal heir of the writ petitioner, filed Writ Appeal No. 229 of 2008. During pendency of the writ appeal, the present opposite parties no. 1 to 3 filed an application for execution before the Sub-Collector in OLR Case No. 1 of 2009. On service of notice, the review petitioner appeared in the execution case on 21.03.2009. In the writ appeal preferred by the review petitioner the order of learned Single Judge dated 9 31.10.2008 was assailed on the ground that the order passed under the Land Reforms Act, 1960 was lacking the inherent jurisdiction as the land under the proceedings situates within the municipal area. After hearing learned counsel for the parties, though several grounds had been raised, the Division Bench answered all the grounds raised before the Court and dismissed the writ appeal, by passing a reasoned order, on 14.03.2011. The review petitioner preferred SLP(C) No. 16451 of 2011 challenging the order dated 14.03.2011 passed in the writ appeal. The apex Court, however, on 11.07.2011 dismissed the SLP with the following orders:
"Learned senior counsel appearing on behalf the petitioner seeks permission to withdraw the special leave petition with liberty to move the High Court by way of review application. Permission is granted. The special leave petition is dismissed as withdrawn accordingly."
The SLP, having been withdrawn with a liberty to move the High Court by way of review petition, the review petitioner filed Review Petition No. 191 of 2011 before the learned Single Judge, which was dismissed on 01.12.2011. Hence, this review application has been filed for review of the order dated 14.03.2011 passed by the 10 Division Bench in W.A. No. 229 of 2008, along with an application for condonation of delay.
3. Mr. Sidhartha Mishra-1, learned counsel for the review petitioner sought for review of the order dated 14.03.2011 passed in the writ appeal on the ground that the land in question, being a "Jagir land" as defined under Section 2(e) of the VPA Act, 1964 and the father of the petitioner having acquired title over the same by way of a permanent "Rayati Patta" dated 14.06.1945 issued by the Gountia, could not have been settled with the predecessor of opposite parties no. 1 to 3 under the VPA Act, 1964 and, as such, the settlement, if any, being illegal and without jurisdiction, is liable to be set aside. It is further contended that the review petitioner could not file the most relevant document in the writ petition, although the same was very much available in the lower Court record. As the aforesaid facts had not been taken into consideration by the Court, while passing the impugned order, he seeks for review of the same.
4. Mr. N.K. Sahu, learned counsel appearing for the opposite parties no.1 to 3 has disputed the contentions raised by learned counsel for the petitioner and submitted that in view of the judgment and order passed by the learned Single 11 Judge, which has been confirmed by the Division Bench in writ appeal, the questions, which have now been raised by learned counsel appearing for the petitioner, have been answered elaborately. He contended that the questions, which have now been raised by learned counsel for the review petitioner, have also been taken into consideration both in the VPA and OLR proceedings and also by this Court, and the findings recorded by them having not been set at naught by the apex Court, while entertaining the SLP, and even if liberty has been given to prefer review, the same cannot be permitted to reopen once again by way of review application. As such, the petitioner cannot be permitted to reopen the matter once again at his caprice and whims in order to frustrate the judgment and order passed by the learned Single Judge, which has been confirmed in writ appeal. It is further contended that the scope of review being very limited, the Court should be very cautious in exercise of such power and should not reopen the matter on raising a new plea, particularly when the counsel appearing for the petitioner was not appearing for the petitioner in the writ court as well as in writ appeal. What questions had been raised by the previous 12 counsel and what had been taken into consideration, being matter of record, now in the review application with the change of counsel a new plea cannot be entertained. He thus seeks for dismissal of the review application. To substantiate his contention, he has relied upon the judgments of the apex Court in Moran Mar Basselios Catholicos V. The Most Rev. Mar Poulose Athanasius, AIR 1954 SC 526 and Kamlesh Verma v. Mayawati, AIR 2013 SC 3301.
5. We have heard Mr. Sidhartha Mishra-1, learned counsel for the petitioner as well as Sri N.K. Sahu, learned counsel for opposite parties no.1 to 3 and Mr. B.P. Pradhan, learned Addl. Govt. Advocate for the State opposite parties no.4 to
6. Pleadings between the parties have been exchanged and with the consent of learned counsel for the parties, this writ review application is being disposed of finally at the stage of admission.
6. Before delving into the merits of the case, it is at the outset necessary to go through the scope of the review application. In this context, it is relevant to refer to Section 114 read with Order-XLVII, Rule-1 of the C.P.C.
"114.Review.-
Subject as aforesaid, any person considering himself aggrieved-13
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code' or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit ORDER XLVII
1. Application for review of judgment.
(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred;
(b) by a decree or order from which no appeal is allowed; or
(c) by a decision on a reference from a Court of Small Causes;
and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review."
7. The apex Court in Gulab Ajwani v. Smt.Saraswati Bai, AIR 1978 SC 326 and Kalabharati Advertising v. Hemant 14 Vimalnath Narichania, 2010(II) CLR (SC) 737 has clearly laid down that 'review' means a judicial re-examination of the case in certain specified and prescribed circumstances. The power of review is not inherent in a Court or Tribunal. It is a creature of the statute. A Court or Tribunal cannot review its own decision unless it is permitted to do so by statute. The Courts having general jurisdiction have no inherent power under Section 151, CPC to review its own order. The Explanation to Section 141, CPC clearly lays down that the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution. Therefore, the provisions contained in Section 114 read with Order 47, Rule 1, CPC ipso facto may not apply to a proceeding under Article 226 of the Constitution, but its principle will apply.
8. In Chhajju Ram v. Neki., AIR 1922 PC 112, it was held by the Privy Council that analogy must be discovered between two grounds specified therein namely; (i) discovery of a new and important matter or evidence; and (ii) error apparent on the face of record, before entertaining the review on any other sufficient ground.
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9. In Rajendra Kumar v. Rambhai, AIR 2003 SC 2095:
2003 AIR SCW 92 : 2002 (3) ACJ 1822; Green View Tea and Industries v. Collector, Golaghat, Assam, (2004) 4 SCC 122 :
AIR 2004 SC 1738: 2004 AIR SCW 1347; and Des Raj v. Union of India, (2004) 7 SCC 753 : 2004 AIR SCW 5617 : AIR 2004 SC 5003, the apex Court held that the first and foremost requirement of entertaining a review application is that the order, review of which is sought (a) suffers from any error apparent on the face of the record, and (b) permitting the order to stand will lead to failure to justice.
10. The scope of review has been elaborately considered by the apex Court in Shivdeo Singh and others v. State of Punjab, AIR 1963 SC 1909, Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 and S.Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595.
11. Therefore, the scope of review being very limited in nature, if the principle, which is applicable to mean (1) if the judgment is vitiated by an error apparent on the face of the record in the sense that it is evident on a mere looking at the record without any long-drawn process of reasoning, a review application is maintainable; (2) if there is a serious irregularity in the 16 proceeding, such as violation of the principles of natural justice, a review application can be entertained and (3) if a mistake is committed by an erroneous assumption of a fact which if allowed to stand, cause miscarriage of justice, then also an application for review can be entertained.
12. In Delhi Administration v. Gurdip Singh Uban., AIR 2000 SC 3737, the Hon'ble apex Court deprecated the practice of filing review application observing that review, by no means, is an appeal in disguise and it cannot be entertained even if application has been filed for clarification, modification or review of the judgment and order finally passed for the reason that a party cannot be permitted to circumvent or bypass the procedure prescribed for hearing a review application.
13. In Subhash v. State of Maharashtra & Anr., AIR 2002 SC 2573, the apex Court emphasized that Court should not be misguided and should not lightly entertain the review application unless there are circumstances fallen within the prescribed limits that the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. 17
14. In M/s. Jain Studios Ltd. V. Shin Satellite Public Co. Ltd., AIR 2006 SC 2686, held that the power of review cannot be confused with appellate powers which enable a superior Court to correct all errors committed by a subordinate Court. It is not rehearing an original matter. A review 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 only in exceptional cases.
15. In Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353 : AIR 2004 SC 3467 : 2004 AIR SCW 3318, the apex Court referred to its earlier judgments in P.N. Eswara Iyer v. Registrar Supreme Court of India, (1980) 4 SCC 680; Suthendraraja alias Suthenthira Raja v. State, (1999) 9 SCC 323: AIR 1999 SC 3700 : 1999 AIR SCW 3734; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714: AIR 2001 SC 2231 : 2001 AIR SCW 2159; and Devender Pal Singh v. State of NCT of Delhi, (2002) 5 SCC 234: AIR 2002 SC 1661: 2002 AIR SCW 1586; and observed that review applications "are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be restored to with a great sense of responsibility as well.
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16. In the garb of review, a party cannot be permitted to reopen the case and to gain a full-fledged innings for making submissions, nor review lies merely on the ground that may be possible for the Court to take a view contrary to what had been taken earlier. If a case has been decided after full consideration of the arguments made by a counsel, he cannot be permitted even if the grab of doing justice or substantial justice to engage the Court again to decide the controversy already decided. If a party is aggrieved by a judgment, it must approach the higher Court but entertaining a review to reconsider the case would amount to exceeding its jurisdiction conferred under the limited jurisdiction for the purpose of review.
17. In Kamlesh Verma (supra), the apex held that the jurisdiction and scope of review is not that of an appeal and it can be entertained only if there is 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. A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for patent error. Error contemplated under the rule must be 19 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 an error of inadvertence. The power of review can be exercised for correction of a mistake but not to substitute a view. The mere possibility of two views on the subject is not a ground for review. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of CPC. In view jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
In paragraph 16 of the said judgment, the apex court formulated the grounds of review which reads as follows:
"16. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
(A) 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" has been interpreted in Chhajju Ram v. Neki, AIR 1922 PC 112 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and 20 Ors., (1955) 1 SCR 520 : (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 and Iron Ores Ltd. and Ors., JT 2013 (8) SC 275 : (2013 AIR SCW 2905).
(B) 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 re-heard 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."
18. Applying the above principles laid down by the apex Court, as discussed above, to the present context, it is contended by learned counsel for the petitioner that the settlement made in favour of late Haribhajan Jhankar in respect of disputed land in VPA Case No.1 of 1967-68 has not been taken into consideration. As has been already stated above, the pleas were taken by the 21 father of the review petitioner in his objection in OLR Case No.1 of 1987 and on consideration of the same, the original authority, i.e., Sub-Collector in its order dated 31.03.2009, the Revisional Authority on 16.01.1995 and the learned Single Judge, while delivering the judgment on 31.10.2008, had already taken into consideration the validity of the settlement made in favour of late Haribhajan Jhankar in respect of the disputed land in VPA Case No.1 of 1967-68 and come to a conclusion that the settlement is legal and valid in the eye of law and all other grounds raised by the father of the review petitioner in his objection were also taken into consideration by all the Courts and finally reached at the conclusion that the review petitioner has no right to continue possession over the land and his possession is unauthorized. Accordingly, confirmed the order of eviction passed in the proceedings under Section 23-A of the OLR Act.
19. Learned Single Judge in its judgment dated 31.10.2008 has specifically observed as follows:
"The above rival submissions of the parties reveal that, the disputed land was admittedly recorded as Jhankari land in the Hamid Settlement and it was settled in the name of the Opp. Party No.1 in the Village Police Abolition Case. At that time the Petitioner did not raise any objection.
xxx xxx xxx 22 The present proceeding U/s. 23-A was filed in the year 1987. The documents reveal that the major settlement ended in 1970, the name of the Opp. Party No.1 was recorded in the ROR where the type of land was mentioned as Gharabari".
In view of such position, the plea advanced by the review petitioner, with regard to acquisition of title over the land on the basis of adverse possession, was also negatived in paragraphs-9 and 10 of the judgment by the learned Single Judge. Therefore, the inevitable conclusion is that, while considering the matter, the learned Single Judge has considered the materials available on record and accepted the settlement made in favour of let Haribhajn Jhankar in VPA Case No.1 of 1967-68 as genuine and legal in the eye of law. Similarly, while the writ appeal was preferred, the Division Bench in paragraph-3 of the judgment has considered the plea taken by the review petitioner with regard to maintainability of the OLR proceeding on the ground that the land in dispute having come within the jurisdiction of municipal area, the proceeding under the OLR Act is not maintainable, and, while answering the same, the Division Bench held as follows:
"Merely because the land comes within the limit of Municipal area unless the said agricultural land converted under the provisions of the OLR Act from agricultural to non-agricultural purpose, the land remains as agricultural land. The said contention urged for the first time in this appeal is rejected."23
While answering the source of title, in paragraph-4 the Division Bench held as follows:
"The said contention has not been considered by the Learned Single Judge and the appellant's counsel has not urged this ground in this appeal. Therefore, there is no need for us to examine the same."
20. So far as genuineness of the proceeding initiated under the VPA Act and the order of settlement made in favour of late Haribhajan Jhankar is concerned, the Division Bench has reached at the following conclusion:
"The said contention also not referred to and considered by the Learned Single Judge and not pressed in this appeal, therefore, there is no need for us to examine the same."
21. Therefore, the questions, which have been raised now in the present review application, having been raised before the learned Single Judge and also before the Division Bench in writ appeal, and the same having been considered and answered, and the matter having been challenged before the apex Court in SLP and the same having been permitted to be withdrawn with a liberty to file review application, cannot ipso facto gives a cause of action seeking for review of the judgment passed by the Division Bench in the present application, that too after dismissal of the 24 review application filed by the review petitioner against the judgment of the learned Single Judge.
22. To sum up, the order dated 14.03.2011 passed in writ appeal has been sought to be reviewed essentially raising the plea that alleged 'Raiyati Patta' in Annexure-4 dated 14.06.1945 issued by the Gauntia could not be produced by the review petitioner in the writ petition, which upset the order of settlement made in favour of the predecessor of opposite parties no. 1 to 3 under the VPA Act, and as such, the order is required to be reviewed. By raising such plea, the review petitioner has tried to make an attempt to establish that as the document under Annexure-4 could not be produced, it is a discovery of a new fact and on that ground the order is liable to be reviewed. It is further contended that though this document was available in the lower Court record, but could not be filed in the writ petition. This question had already been raised before the learned Single Judge in the writ petition, as well as the Division Bench in the writ appeal. As the document in Annexure-4, in view of his own statement, was very much available on record, the findings recorded in the writ appeal by this Court and the learned Single Judge in this 25 particular aspect demolish the case of the petitioner seeking review of the order passed by this Court.
23. On careful examination of the contention raised by learned counsel for the respective parties and also the judgment sought to be reviewed in the light of proposition of law, as discussed above, we are of the considered view that the petitioner has miserably failed to establish a case for review. The review application thus merits no consideration and is accordingly dismissed.
Sd/-
VINEET SARAN CHIEF JUSTICE Sd/-
DR. B.R. SARANGI JUDGE Orissa High Court, Cuttack The 8th November, 2017, GDS/Ashok/Ajaya True Copy Sr. Steno