JUDGMENT V.S. Pandey, Member. - This second appeal has been filed against the judgment and order dated 23rd November, 1990 passed by the Addl. Commissioner, Varanasi Divisions, Varanasi. 2. The facts of the case are that a suit under Section 229-B/176 of U.P.Z.A. & L.R. Act was filed by Kallu and others for declaration of co-tenure holder's rights and for possession of the land in dispute. The trial court allowed the plaintiff's suit, and declared the plaintiff-respondents as co-sharers along with defendant-appellants by order and decree dated 17-11-1982. An appeal was filed against the order dated 17-11-1982 before the additional Commissioner, Varanasi Division, who allowed the appeal by his judgment and order dated 17th September, 1990, and set aside the order of the trial court. A review application was filed before the Additional Commissioner on the grounds that an apparent error is there on the face of the record, that the Additional Commissioner did not at all discuss the evidence available on the file regarding the property being ancestral property, and that no partition had taken place earlier between the parties. The learned Addition Commissioner, by his order dated 23rd November, 1990, accepted the review application had set aside the order dated 17th September, 1990 and fixed the appeal for hearing on 12th of December, 1990 Against this order, this second appeal has been preferred. 3. I have the learned counsel for the parties, and have perused the record. 4. The question involved in this second appeal is, whether the lower appellate court is competent to revise its own order on the grounds mentioned in the review application. The learned counsel for the appellants argued that the appellate court committed a mistake by accepting the review application under Order XLVII., Rule 1, C.P.C. on the ground that error was manifest on the face of the record. The learned counsel for the appellants argued that en error in a finding can be challenged only in second appeal. The Additional Commissioner in his order dated 17th September, 1990 had discussed the evidence in evidence on record, and then had pronounced the judgment. The learned counsel cited a ruling of Hon'ble Supreme Court as reported in AIR 1980 SC 617, and also a ruling of Hon'ble High Court, 1998 ALJ 551. 5.
The Additional Commissioner in his order dated 17th September, 1990 had discussed the evidence in evidence on record, and then had pronounced the judgment. The learned counsel cited a ruling of Hon'ble Supreme Court as reported in AIR 1980 SC 617, and also a ruling of Hon'ble High Court, 1998 ALJ 551. 5. The learned counsel for the respondent argued that the case of the plaintiffs in the lower court was that the land in suit is ancestral property, and the plaintiffs and defendants were co-sharers and were in possession over the land in dispute. The lower court had given a clear finding about the land being ancestral, and on the basis of oral evidence a clear finding was given to the effect that no petition had taken place, and the family was a joint Hindu family. The trial court had also given a clear finding that plaintiff Kallu and the respondent Dal Singar both were claiming the land and possession and that they had equal share. The learned Additional Commissioner, while deciding the appeal, held that there was no evidence on record to prove that the land in dispute was an ancestral property. The lower appellate court also held on the basis of the oral evidence that it was proved that partition had taken place, and on that basis the appellate court set aside the order of the trial court and accepted that appeal. 6. A mere reading of the order of the lower appellate court shows that without discussing the evidence, in just two lines, he threw away the findings recorded by the trial Court. In its order dated 17th September, 1990, it held that there was no evidence to prove that the land was ancestral property. It also held on the basis of oral evidence that petition has taken place. The evidence on record, on the very face of it, is contrary to what the Additional Commissioner has mentioned in his judgment dated 17th September, 1990. There is a clear finding recorded on the basis of evidence by the trial court that the land was acquired when no partition had taken place. Even the witness of the defendant had accepted the possession of plaintiff over the land in dispute.
There is a clear finding recorded on the basis of evidence by the trial court that the land was acquired when no partition had taken place. Even the witness of the defendant had accepted the possession of plaintiff over the land in dispute. Various copies of Khatauni and Khasra, also the receipts of land revenue and irrigation dues are on the record, which indicated the possession of the plaintiff on the land in dispute. 7. Order XLVII, Rule 1 of the Code of Civil Procedure mentions the grounds on which a review application can be entertained. Hon'ble Supreme Court in Northern Indian Caterers (India) Ltd. v. Lt. Governor of Delhi, AIR 1980 SC 674 , has laid down, " Whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will no be reconsidered except where a glaring omission or paten mistake or like gave error has crept in earlier order by judicial fallibility."......."Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice." The same view was reiterated by Hon'ble High Court in Smt. Saghiran v. Saleem and others, 1988 ALJ 551. 8. In this view of the matter, I find that the learned Additional Commissioner acted beyond his jurisdiction in allowing the review petition, and thereby giving an opportunity of second hearing. It need hardly be emphasised that the purpose of Order XLVII, Rule 1 C.P.C. is not to enable the Court to writ a second judgment. Similarly, error in finding is also no ground for review. Even if it is pointed out to the Court that the conclusion arrived at is against the evidence on record, the remedy is not in accepting a review petition, but the parties can prefer a second appeal. It should be kept in mind that power to review is no an inherent power of the Court, vide case law reported in 1982 AWC 376 . Since a review lies only for paten error, as laid down in AIR 1984 SC 133 . I am not inclined to accepted the argument of the learned counsel for respondent.
It should be kept in mind that power to review is no an inherent power of the Court, vide case law reported in 1982 AWC 376 . Since a review lies only for paten error, as laid down in AIR 1984 SC 133 . I am not inclined to accepted the argument of the learned counsel for respondent. I am of the view that the learned Additional Commissioner went beyond his jurisdiction by allowing the review petition, and thereby giving to the application an opportunity of a second hearing. Hence, the judgment and order dated 23rd November, 1990 passed by the learned Additional Commissioner has to be set aside. 9. The appeal succeeds and is allowed, and the order of Additional Commissioner, Varanasi Division, dated 23rd November, 1990 is set aside, Parties to bear their own costs.