Bombay High Court
Chandrakant Jagannath Manjrekar And ... vs Shripad Vaikunth Naik on 20 January, 1988
Equivalent citations: AIR1989BOM91, AIR 1989 BOMBAY 91, (1988) 1 CURCC 500
ORDER
1. Judgment dated August 24, 1987 is sought to be reviewed by the applicants who are petitioners in the revision application No. 56/87. By the impugned judgment while confirming that the respondent/original plaintiff has made out a prima facie case that he is possession of the property "Deusum" I remanded the matter to the District Court to render fresh findings and decide whether the petitioners were in possession of the house and that they were dispossessed as alleged in the light of the observations made, for I found that the case of the petitioners viz, the house has to be separately dealt with from that of the property (sic).
In paragraph 10 I observed that the petitioners' names having not been shown as tenantsand mention to have 'koti' right that too in the Other Rights column in the survey record prima facie 'khoti' cannot be equated to tenancy rights going by the work 'khoti' as mentioned in the dictionary. The fact remains that the tenants column is blank in Forms 1 & ZIV vide the property surveyed under No. 100/1.
2. Shri Rebello, learned counsel for the applicants now says that my observation that 'khoti' cannot be equated with enancy rights is erroneous as it goes against a judgment delivered by this very Court earlier in Civil Revn. Appin. NO. 163 of 1984 decided on 11th April, 1985 and further having regard to a decision of the Division Bench of this Court reported in AIR 1934 Bom 434. He now urges that 'khoti' must be equated with lease and if the applicants are held to be the lessees in respect of the property surveyed under No. 100/1 the whole perspective would change in the matter of appreciation of the applicant's case and therefore the impugned judgment will have to be reviewed.
3. It is true that in Civil Revision Application No. 163/84 observations were made that 'khoti' is to be equated with lease but however it must be seen that the two survey numbers involved in that case were survey Nos. 399/6 and 397/2. The survey authorities themselves had recorded that there was 'rakhan' in respect of property bearing survey No. 399/6 and 'khoti' in respect of property bearing survey NO. 397/2. Since the authorities themselves had made a distinction to day that 'rakhan' would amount to watch and ward duties and 'khoti' would amount to something alike a lease. But this was again a decision rendered at interlocutory stage and the matter as to the character of the transaction between the parties had to be decided finally in the suit on merits.
4. So far as the decision of the Division Bench reported in Secy, of State v. Faredoon Jijibhai Diecha reported in AIR 1934 Bom 434 it is observed at p. 437 thus:-
"If the grant was a rent free grant in perpetuity with the right of transfer, it was known as inam; if it was a grant either for a fixed term or in perpetuity with the condition to pay a fixed amount as rent to the Government it was called khoti or a lease and the leaseholder was called a khoti".
Having regard to these observations it is urged by Shri F. Rebello that it is clear that khoti is a lea se and hence the review must be allowed for the observations in para 10 of the impugned judgment are against these two decision and in any event the decision of the Division Bench being binding on this Court sitting singly there is no escape and in that view of the matter the judgment is liable to be reviewed.
5. This review application is opposed by the respondent through their counsel Shri Usgaoncar. The first of the objections is that this Court ought to be doubly careful in the matter of the review. In that it is argued that the impugned judgment was made disposing of an interlocutory application taken in the suit and the rights of the parties having not been decided finally the observation in para 10 of the judgment that Khoti cannot be a lease will not amount to determination of rights finally between the parties and therefore in this type of matters no question of review arises. Mr. Usgaoncar then points out that even while holding that 'khoti' does not amount to a lease, the Court put itself sufficiently on guard by saying "prima facie it must be held that khoti cannot be equated to tenancy rights...........". mr.. Usgaoncar therefore urges that so long as it has been duly qualified by the words "prima facie" even on this score review is not permissible.
Insofar as the other merits are concerned it is pointed out that going by the impugned judgment there is lot to be said. In that the counsel mentions that despite that the suit property consists of cashew grove and coconut grove the applicants did not make any claim to the coconut grove and only claimed leasehold right in respect of cashew grove although admittedly the suit property has both types of groves. Accordingly to him once the fact remains that no right is claimed in respect of coconut grove then what is mentioned insofar as the cashew grove is concerned showing the applicants to have 'khoti' cannot amount to tenancy or leasehold rights. He is supporting this contention by showing to the Court that nowhere the applicants have set out as to what rent they are paying in respect of the cashew grove as according to him the payment of the rent is an essential ingredient of any lease having regard to the definition here of the Transfer of Property Act . he further points out that the very documents produced by the applicants in support of their case are themselves styled as 'rakhan'. Therefore even in this view of the matter it is not possible to equate khoto to lease. No doubt the applicants have produced cashew extraction licences, but for that matter he points out that respondent ahs equally produced extraction licences obtained from the very Excise department in this own name and all this taken together goes to show against the claim of the applicants.
He nest says that the applicants would have been entitled for review of the impugned judgment if this Court had solely based its decision that Khoti cannot be equated with tenancy rights, but according to him this is not the case and this Court while delivering the impugned judgment has made extensive reference to several other aspects as mentioned therein.
6. Even otherwise according to Shri Usgaoncar the discovery of a decision subsequent to the judgment sought to be reviewed is not an error apparent on the face of record. For this proposition he relies on the Full Bench decision of Nalagarh Dehati Co-operative Transport Society Ltd. Nalagarh v. Beli Ram, . This decision no doubt lays down that failure of the Court to take into consideration an existing decision of the Supreme Court taking a different or contrary view on a point covered by its judgment would amount to a mistake or error apparent on the face of the record. But a failure to take into consideration a decision of the High Court would not amount to any mistake or error apparent on the face of the record. In the decision of Juli Meah v. Atar Din, reported in AIR 1935 Rang 32 it is held that a failure to consider precedent bearing upon the case is not a mistake or an error apparent on the face of the record, but is really discovery of a new and important matter by the party who ought to have brought the precedent to the notice of the Court, and therefore one cannot apply for review of the judgment unless he can show that failure to bring it to notice of the Court was excusable. In the decision of Dilip Nath Sen v. Certificate Officer while construing the provision of O. 47, R. 1 of C.P.C. the words "any other sufficient reason" appearing therein it is observed that a production of an authority or ruling not brought to the notice of the court at the time of the decision was rendered is not a sufficient reason. He therefore now urges that mere discovery of these two decisions now cannot permit the court to review its own judgment and the review application must fail.
7. The counter argument by Shri Revello is that the existence of the decision delivered in Civil Revision Application No. 163/84 was mentioned at the time of the oral arguments and before the decision was rendered, but however the citation was not available. H e however concedes that the judgment reported in AIR 1934 Bom 434 was not mentioned and it was discovered later.
8. It is true that at the time of the oral arguments Shri Rebello did mention to me that I had observed in one of the judgments delivered by me that khoti has to be equated with tenancy rights. He however now says that if the legal position with regard to khoti is now clear in view of the decision of the Division Bench, having regard to the decisions of the Supreme Court it is possible to review the impugned judgment and for that purpose he relies in the decision of Raj Kumar's case. The first of the decision, of Raj Kumar is reported in RajKumar v. Union of India, , Raj Kumar succeeded before the Supreme Court. his services were terminated under rule 5(I) of the Central Services (Temporary Service) Rules, 1965 and though his services were terminated without one months notice in advance there was no payment made to him of pay and allowances at the same time the notice of termination of his services was served on him. The Supreme Court relying upon its earlier decision had rendered that decision. The next decision of Raj Kumar the same person is reported in the same Volume . The Supreme Court had perforce to set aside its own judgment in the case cited supra as it was found that central Civil Services (Temporary Service) Rules 1965 were named with retrospective effect from 1-5-1965. The amendment stated that payment of notice pay and allowances need not be along with service or tender of termination notice. Based on this amendment which had not been noticed earlier by the Supreme Court. the Supreme Court reviewed its own decision. Mr. Rebello therefore now urges that is open for this Court to review the impugned order based on the discovery of the Division Bench decision AIR 1934 Bom 434 referred to supra.
9. Mr. Rebello next points out that there are some account sheets on record which make a mention of Rs. 300/- for cashew grove and Rs. 150/- for the areca. He therefore says that that has to be considered as rent paid by applicants. He again reiterates that when 'khoti' is accepted as elase them the benefit of the presumption under Section 105 of the Land Revenue code would be available to the applicants and once that happens the onus would shift on he respondent/plaintiff to rebut that presumption and entries and the entire respective of the application for temporary injunction would change and therefore this application ought to be reviewed.
10. IN the matter of the decision reported in AIR 1934 Bom 434 it must be seen that that was a matter relating to the construction of a lease deed and again the matter had been finally disposed of by trial court. in appeal before the High Court the question related to interpretation of several clauses of the lease deed. It is indeed contended by Shri Usgaoncar that the observations extracted above from page 347 thereof are on the basis of the interpretation of lease deed involved in the proceedings and will have no general application.
In my view I need not go for the interpretation of the judgment and leave the matter open. I am in agreement with Shri Usgaoncar that whatever matter already decided in the revision application was at the interlocutory stage and the rights between the parties are yet to be determined finally having regard to the transactions inter se. parties are required to lead evidence and based on that evidence and the anture of transaction it is open to the trial Court to come to its own findings whether the applicants are lessees . the fact remains that the tenants column in blank in Forms I and XIV. Practice with regard to rakhan, khoti and terms of the tenancy very from place to place and therefore the issue must be left at large to be decided only after recording evidence. Going by the assumption that what I said in para 10 of my impugned judgment that khoti cannot be equated to tenancy rights is an error even then having regard to what I have observed earlier there is no question of review. However, I may caution that the Courts below need not go by those observations and are free to decide the matter on appreciation of the evidence led by the parties.
11. I am also in agreement with Shri Usgaoncar, learned counsel for the respondent that while confirming the order of the trial Court qua the property surveyed under No. 100/1. I had not decided the controversy solely by the interpretation of the Marathi word 'khori' holding it not to be a lease but for several other reasons including non-disclosure of rent, production of account/receipts by the very applicants which are themselves titled as 'rakhan'. I also relied upon the statement of account relied upon by the respondent. This being so, going by the grievance that the statement in the impugned judgment that 'khoti' cannot be equated with tenancy rights is accepted to be erroneous yet I am compelled to hold that the earlier judgment is not liable to be reviewed.
It may be again observed that there are several decisions of this Court and the Supreme Court that mere erroneous decisions are not liable to be reviewed. There are also several precedents that only errors apparent on the face of the record are liable to be reviewed and such errors must stare one in the face where no elaborate arguments are necessary to pin-point those errors.
12. In this view of the matter the review application is dismissed. Rule discharged. There shall be however no order as to costs. Application dismissed.