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1976 DIGILAW 287 (ALL)

Durga Prasad v. Behari Ji Birajman Mandir

1976-04-20

H.N.AGARWAL, P.C.SAXENA

body1976
JUDGMENT P.C. Saxena, member. - This is a review petition against the order passed on 20-6-72 by Sri B.K. Misra, a learned Member of this court since transferred dismissing the Second Appeal No. 237(2) of 1971-72 summarily as being not fit admission. 2. Thakur Behari Ji Maharaj Birajman Mandir Mausama Narsingh Tila had filed a suit through Raja Ram, Manager, for declaration of bhumidhari right in certain plots situated in village Mau and or ejectment of the defendant-petitioner, Durga Prasad. The trial court dismissed the suit. In appeal, however, the learned Additional commissioner decreed the suit. The learned Member has held that the second appeal was concluded by findings of fact and was not fit for admission. 3. The only grounds taken in the review petition is that every plaintiff has got to prove his case, and there was no evidence worth the name to support the plaintiff's title. The learned counsel for the petitioner has argued that with the aboltion of Zamindari even the Almighty lost the proprietory rights and unless the land in dispute is proved to have been either the Sir or khudkasht, immediately preceding the date of vesting, no rights whatsoever would survive to the plaintiff Deity. 4. The learned counsel for the opposite party had contended that under Order XLVII. Rule 1 C.P.C. the scope of a review petition is confined to (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him earlier, (b) some mistake or error apparent on the face of the record, or, (c) any other sufficient reason. According to the learned counsel for the opposite party this case is not fit for review as none of the above conditions have been fulfilled. 5. It is been the consistent view of all courts that an error of law or fact is not a sufficient reason for granting review. We also subscribe to this view. The learned counsel for the petitioner has failed to show that any suitable grounds for granting the review exist in this case. 5. It is been the consistent view of all courts that an error of law or fact is not a sufficient reason for granting review. We also subscribe to this view. The learned counsel for the petitioner has failed to show that any suitable grounds for granting the review exist in this case. After considering the entire oral and documentary evidence, the lower appellate court had arrive at the finding that the land in suit was the 'mafi' of the plaintiff-deity, but was wrongly recorded in the name of Srimati Ram Kunwar, muntazim of the temple who cultivated the land on behalf of the plaintiff. The present muntazim of the temple was Raja Ram who was looking after the cultivation on behalf of the plaintiff but the defendant-petitioner, Druga Prasad, who was the real brother of Raja Ram, got his name fictitiously recorded with the collusion of the Lekhpal although he was never in cultivatory possession. The plaintiff had produced adequate and convincing oral evidence on support of its title and possession. In addition, the decisions of the Munsif dated 25-4-68 and the Sub-Divisional Magistrate in proceeding under section 145 Cr.P.C. dated 21-6-68, copies of which are on record, are also in favour of the plaintiff. In the face of this, it cannot be argued that there was no evidence worth the name to support the plaintiff's title. There is no error apparent to the face of the record nor discovery of any ne material evidence to justify interference with the order of the learned Member dismissing the second appeal summarily. The review petition is accordingly rejected.