Judgment :- This appeal is directed against an order permitting review of judgment and decree made in first appeal. The judgment in the appeal was delivered on 27-4-1983 and the application for review was presented on 30-11-1983. There is no question of limitation as under the provisions of the Pondicherry Limitation Act it is admittedly in time. 2. The ground on which review was sought was that the appellate Court in the course of its judgment had referred to the circumstance that the prior title deed of the respondent herein dated 20-11-1956 was not produced before Court, and that in spite of the best efforts made by the respondent herein the document could not be obtained when the proceedings were pending before the trial Court and the appellate Court. On that ground the document was produced before the Court along with the application for review and review was sought as according to the respondent, his title was proved by the said document. 3. The lower appellate Court thought fit to grant review as the document, the non-production of which was commented upon by the Judge, was produced before it and proceeded whether the document would prove the title of the respondent. Taking the view that the document proves the title, the appellate Court reviewed the judgment made earlier and held that the respondent herein was entitled to a decree as prayed for by him. 4. Learned counsel for the appellant herein has urged four contentions. The first is that the respondent herein has not explained the delay between the date of the judgment and the date of the presentation of the review application. There was seven months' delay and the respondent has not chosen to disclose to the Court what efforts he made in getting the document. It is also pointed out that the respondent was quite aware of the document even during the pendency of the suit as well as the appeal and it is not as if he came to know of the document for the first time after the disposal of the appeal. Under those circumstances, according to the learned counsel a review ought not to have been granted by the appellate Court. I do not agree with this contention for the simple reason that the delay of seven months does not give rise to a question of limitation.
Under those circumstances, according to the learned counsel a review ought not to have been granted by the appellate Court. I do not agree with this contention for the simple reason that the delay of seven months does not give rise to a question of limitation. Apart from that, in the affidavit filed in support of the application for review the respondent had stated that in spite of his earnest efforts he could not get the sale deed. That has been accepted by the lower appellate Court. Nothing has been placed before me as to why it should not have been accepted. 5. Reliance is placed upon an application filed under Order XLI Rule 27 C.P. Code during the pendency of the appeal to mark a notaire deed of the year 1956. That application was dismissed by the appellate Court with the following observation : "Documents not filed in time. It is not useful to decide case. Petition is dismissed" * In discussing the application the appellate Court made a reference to the sale deed dated 20-11-1956 in its judgment and observed that the sale deed was not produced by the party. As the non-production of the document was put against the respondent herein he made an effort to get hold of the document and produce the same along with the application for review. Hence the first contention of the learned counsel for the appellant cannot be accepted. 6. The second contention is that the sale deed dated 20-11-1956 which has been produced along with the review application is not valid as it is based upon a declaration in the Notaire deed of the year 1956; which preceded it. Relying upon the following passage in the earlier judgment of the lower appellate Court in which a reference is made to the notoriete deed which was produced by the respondent herein during the pendency of the appeal, ".... The plaintiff appellant produced in the appellate court as" acte de notoriete "dated 20-11-1956 by which three witnesses attested before Notaire that one Kannusami Kandappa was possessing for more than thirty years a vacant manai and that Madharassu alias Irudhaya Marie Emillium and Mariasusai Ammal Kandappa, legal heirs of Kannusamy Kandappa were possessing the said manai.
The plaintiff appellant produced in the appellate court as" acte de notoriete "dated 20-11-1956 by which three witnesses attested before Notaire that one Kannusami Kandappa was possessing for more than thirty years a vacant manai and that Madharassu alias Irudhaya Marie Emillium and Mariasusai Ammal Kandappa, legal heirs of Kannusamy Kandappa were possessing the said manai. Therefore, the vendors of the plaintiff were only claiming title by adverse possession....." * Learned counsel submits that when the Court had chosen to reject the notaire deed, the sale deed which was based on the Notaire deed ought not to have been accepted by the lower appellate Court at the time of deciding the review application. This contention is really one which can be raised by the appellant only in the second appeal against the revised judgment of the lower appellate Court. The contention as to whether the sale deed on which reliance is placed by the lower appellate Court is a valid one or not is not a matter which can be considered in an appeal which arises out of the order in the application for review. Hence this contention also cannot be accepted. 7. The third contention of the learned counsel for the appellant is that the respondent herein, relied upon Exhibit A-2, a lease deed of the year 1945, which was an unstamped document and the trial court as well as the lower appellate Court found that the lease pleaded by the respondent-plaintiff was not proved and that the possession of the appellant-defendant was not proved to be that of a tenant. Learned counsel draws my attention to the following passage in the judgment of the appellate Court : "..... Further the defendant who has entered into the property as a tenant cannot claim any prescriptive title over the portion of the property occupied by him. Once a tenant is always a tenant and the plaintiffs case was dismissed only for the non-production of the document of 1956 and since now the same having been produced, he is entitled for a declaration as prayed for." * No doubt, the learned Judge's observation that the defendant entered the property as a tenant may not be correct, but yet, that is not the only ground on which the relief has been prayed for in the suit.
The finding of the lower appellate Court on the prior occasion was that the plaintiff had not proved title and that the defendant had not proved prescription of title by adverse possession. But the suit was dismissed because the plaintiff had no title to the property. It is not as if the suit was dismissed only because the plaintiff had not established the tenancy. Even if the tenancy had not been established, if the plaintiff proved his title and the defendant did not prove title, the Court would have been right in granting the relief on the basis of proof of title by the plaintiff. The third contention is the one which should be put forward in a regular second appeal against the final judgment of the appellate Court and not in this appeal against an order in the review application. Hence this contention also fails. 8. The last contention put forward by the appellant's counsel is that the procedure adopted of the respondent herein is clearly illegal and against the provisions of the Civil P.C. According to him, the respondent should have filed an application to produce the documents as additional evidence and only after such production, an application for review should have been filed. According to him, the Court below was in error in admitting the document when the said procedure was not adopted. There is a fallacy in this argument. If an appeal is pending, then certainly an application under O. XLI, R. 27, Civil P. C. should be filed. Here the appeal was disposed of and a review of the judgment is sought on the ground that a document has been obtained by the respondent and it was necessary for the disposal of the case. In such a case, the document can be produced only along with the application for review and there is no question of filing an application under O. XLI, R. 27 C. P code for production of the document as additional evidence, and then filing a review application after the said document is admitted by the Court. Hence this contention has also to be, and is hereby, rejected. 9.
Hence this contention has also to be, and is hereby, rejected. 9. I am of the opinion that the court below has not committed any error in granting a review as the document which has been produced by the respondent herein was quite necessary for the purpose of the case and the court had sufficient reason for reviewing the judgment and decree made in the appeal. Under those circumstances, this civil miscellaneous appeal has to fail and it is hereby dismissed. Appeal dismissed.