Madhya Pradesh High Court
Virendra Kumar vs Mangilal on 24 January, 2018
THE HIGH COURT OF MADHYA PRADESH
R.P.No.306/2015
Virendra Kumar and another Vs. Mangilal and others
1
Gwalior
24.1.2018
Shri T.C. Singhal, learned counsel for the
petitioners.
Shri Vaibhav Maheshwari, learned counsel for the
respondent no.1.
Shri Praveen Newaskar, learned Govt. Advocate for respondent no.4.
With the consent of learned counsel for the parties, the matter is finally heard.
(1) Review of the order dated 05.5.2015 passed in Second Appeal No. 392/2007 is being sought by present appellant. (2) Second appeal was directed against the judgment and decree dated 13.4.2017 passed in Civil Appeal No. 48A/2006 whereby the First Appellate Court reversed the judgment and decree dated 18.9.2006 passed in Civil Suit No.54A/2006. The suit instituted at the instance of respondent-plaintiff was for declaration of title and for permanent injunction. The First Appellate Court while recording a finding qua the possession of defendant returned a specific finding in paragraph 16 of the judgment dated 13.4.2007 in the THE HIGH COURT OF MADHYA PRADESH R.P.No.306/2015 Virendra Kumar and another Vs. Mangilal and others 2 following terms:
"16- izfroknh ohjsUnz bl Hkwfe ij viuk o"kksZa iqjkuk dCtk crk jgs gSa vkSj fojks/kh vkf/kiR; ds vk/kkj ij Hkh HkwfeLokeh LoRo ifjiDo gksuk dgrs gS] ysfdu izfroknh us i`Fkd ls vius dCts vkSj fojks/kh vkf/kiR; ds vk/kkj ij HkwfeLokeh LoRo iznku fd;s tkus ds fy, dksbZ nkok oknhx.k ;k oknh jkepj.k ds fo:) is'k ugha fd;k gSA tc oknh us nkok is'k fd;k] rks izfroknh fojks/kh vkf/kiR; dh Iyh ysdj vkSj viuk o"kksZa iqjkuk dCtk crk dj oknh ds LoRo ls badkj dj jgs gSaA rglhy U;k;ky; ds iz-Mh- 1 ds vkns'k ls izfroknh dk dCtk ikdj bls ntZ djus dk vkns'k fn;k gS] ysfdu bl 28-5-98 ds vkns'k dk dksbZ vEky [kljk izfr;ksa esa ugha gqvk gS] vFkkZr~&1998 ds vkns'k ds ckn ls vkt rd Hkh ,slh [kljk izfrfyfi ,d Hkh bl izfroknh ds uke ij ugha gS] ftlls ;g lkfcr gks lds fd rglhy U;k;ky; ds vkns'k ls dCtk ntZ fd;k x;k gS vkSj izfroknh dCtk/kkjh gSA ,slh fLFkfr esa dsoy ek= rglhy ls dCtk ntZ djus ds vkns'k ls ;g ugha dgk tk ldrk fd okLro esa izfroknh o"kksZa ls vkSj orZeku esa Hkh dCtk/kkjh gSa vFkok os fojks/kh vkf/kiR; ds vk/kkj ij bl fookfnr Hkwfe ds Lokeh gks x, gSA"
(3) Learned Single Judge while hearing the second appeal on admission did not perceive any substantial question of law, therefore, dismissed the appeal vide order dated 5.5.2005 on a finding that "on careful examination of the THE HIGH COURT OF MADHYA PRADESH R.P.No.306/2015 Virendra Kumar and another Vs. Mangilal and others 3 reasoning given by the first appellate court, it is evident that after re-appreciating the entire evidence adduced by the parties, the decree against the appellants has been passed. This court therefore does not find any involvement of substantial of question of law in this appeal. The appeal is dismissed in limine."
(4) Though, the review of the order is being sought on the ground that learned Single Judge has patently erred in glossing over the evidence on record, however, after going through the entire order under challenge, we do not perceive that learned Single Judge has glossed over the material evidence on record. No cogent material evidence is commended at except a statement made in cross- examination to establish that the present petitioners were in possession of the land in question. A finding to that effect in paragraph 16 of the judgment by the First Appellate Court has been substantiated in absence of such cogent material evidence. Learned Single Judge was well within its rights in observing that the First Appellate Court after re-appreciating THE HIGH COURT OF MADHYA PRADESH R.P.No.306/2015 Virendra Kumar and another Vs. Mangilal and others 4 the entire evidence adduced by the parties has returned the finding and decree the suit in favour of the respondent- plaintiff. As trite it is that unless it is established that in a judgment or an order an error apparent on the face of record has crept in such judgment and order is beyond review as the reviewing Court cannot act as a Court of appeal. (5) In the case at hand the fact as adverted supra establishes that the learned Single Judge after appreciating the entire evidence on record observed that the finding arrived at by the First Appellate Court is based on cogent material evidence on record, accordingly, declined to cause any indulgence. Since there is no error apparent on the face of record, we decline to accede to the prayer made on behalf of the petitioners-defendants to review the order dated 5.5.2015 passed in Second Appeal No.392/2017. (6) Consequently, review petition fails and is dismissed. No costs.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
pawar/-
ASHISH PAWAR
2018.02.02 12:05:58 +05'30'
THE HIGH COURT OF MADHYA PRADESH
R.P.No.306/2015