Research › Search › Judgment

Calcutta High Court · body

2002 DIGILAW 149 (CAL)

Jadav Chandra Paul v. Nirmal Das

2002-03-06

Narayan Chandra Sil

body2002
JUDGMENT N.C. Sil, J.: This is to consider an application under Order 47 Rule 1 of the Code of Civil Procedure. Heard the learned Advocates for both the parties. Perused the petition and the Affidavit-in-Opposition filed by the O.P. and the other materials on record. 2. Actually this present petition under Order 47 Rule 1 of the Code of Civil Procedure has been filed with a prayer to review the judgment passed by His Lordship Hon'ble Mr. Justice Amulya Kumar Nandy dated 4.2.1991 in connection with the Second Appeal No. 884 of 1975. The learned Judge was pleased to dismiss the appeal on contest. 3. It is stated in the review petition that the High Court failed to consider the effect of acquisition of title of the defendants and also both the courts failed to decide the case shifting the onus wrongly on the plaintiff. It is also stated that the High Court applied the case of Ambika Prasad vs. Ram Dulal, AIR 1966 SC 605 , without considering the said case law at all. It is also stated that during the communal riot in 1950 the Muslims bharatia having left the place, the thika tenant Jaharlal Dey allowed the defendants to occupy the premises along with other refugees. It is also stated that at the time of the preparation of revisional record-of-rights the defendant Nos. 1, 5, 6, 7 and 8 had recorded their names in respect of the premises but not in respect of the land where one Rajkumar Dey is the owner and Jaharlal Dey was the thika tenant. It is also stated that the O.PS. never claimed themselves to be the owner of the suit property and on 28.7.1972 they admitted that they were lease-holder of the suit property which will be reflected from Exhibit 2(a). In fact the contents of the said exhibit has been incorporated in the petition. It is also stated that the High Court failed to consider that all the legal heirs of Krishna Seal had not contested and claimed adverse possession against the plaintiff and thus, the High Court made an error apparent on the face of the record when none of the defendants claimed jointly about the adverse possession with respect to the occupation of the premises. It is further stated that the High Court made an error apparent on the face of the record in not considering exhibit 2(a). It is further stated that the High Court made an error apparent on the face of the record in not considering exhibit 2(a). 4. The petition has been contested by the O.P./respondent by filing an Affidavit-in-Opposition in which all the materials allegations are denied and it is, inter alia, stated that there is no case for the review of the order passed by this Court in disposing of the appeal on contest. 5. It is now incumbent upon me to determine whether there is any error apparent on the record making the application under Order 47 Rule 1 of the Civil Procedure Code liable to be allowed. 6. Mr. Gopal Chandra Mukherjee appearing for the petitioner/appellant submits before me that the exhibit 2(a) was not taken into consideration by the High Court at the time of disposal of the appeal although the same was on the record. It is also pointed out by Mr. Mukherjee that their case of adverse possession is totally dispelled by virtue of exhibit 2(a). According to Mr. Mukherjee, this non-consideration of the exhibit 2(a) is an error face on the record. Mr. Mukherjee has referred to the ratio decided in the case of M.M. Thomas vs. State of Kerala & Anr., 2000 (1) SCC 666 , in which it was, inter alia, held that the High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Court's power in that regard is plenary. Mr. Mukherjee has also referred to the ratio decided in the case of Premendu Bhusan Mondal vs. Sripati Ranjan Chakrauarty, AIR 1976 Cal. The High Court's power in that regard is plenary. Mr. Mukherjee has also referred to the ratio decided in the case of Premendu Bhusan Mondal vs. Sripati Ranjan Chakrauarty, AIR 1976 Cal. 55 , in which it was, inter alia, held that a squatter or trespasser who does not set up a claim of right cannot plead adverse possession and no length of mere squatting possession is a good defence in a suit for possession by the true owner. 7. Mr. Amalendu Kumar Paul appearing on behalf of the O.P./respondent has referred to the ratio decided in the case of Meera Bhanja vs. Nirmala Kumari Choudhury, AIR 1995 S.C. 455 . In the said case the Division Bench of the High Court at Calcutta allowed the review petition and after having considered the materials on record the Apex Court had observed that the Division Bench dealing with the review petition overstepped its jurisdiction under Order 47 Rule 1 of the Civil Procedure Code by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. The Apex Court also observed that in substance, the Review Bench had re-appreciated the entire evidence, sat almost as court of appeal and reversed the findings reached by the earlier Division Bench. Even if the findings of the earlier Division Bench regarding the C.S. Plot No.74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. It is also observed that right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned and it could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. 8. I have carefully gone through the judgment passed in the appeal by this court and it appears that although the learned Judge had observed in the judgment that the case was wholly based on the findings of fact and there is no point of law involved in the appeal and although it was further challenged, the second appeal was liable to be dismissed summarily, the learned Judge was pleased to deal with all the matters in dispute including the question of adverse possession in all details. The learned Judge appears to have dealt with the evidence adduced by the parties before the trial court and also the pleadings of the parties. The learned Judge observed: "If we carefully go through the evidence we will find that the evidence is eloquent to prove this animus. The defence witnesses proved that the defendants repeatedly resisted the plaintiffs' attempt to evict the defendants from the disputed property." 9. Rule 1 Order 47 of the Code of Civil Procedure reads as under: "(1) Any person considering himself aggrieved–– (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order." 10. Thus, on perusal of the above quoted provisions of the Code of Civil Procedure it is clear that a party aggrieved by a decree or a decision specified in clause (a), (b) or (c) of sub-rule (1) may apply for a review in any of the following cases: (I) on the ground of the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party, or could not be produced by him at the time when the decree was passed or order made; or (II) on account of some mistake or error apparent on the face of the record; or (III) for any other sufficient reason. From the arguments made by the learned Advocates for the parties and particularly by Mr. Mukherjee it appears that the case of the petitioner comes within the category of the ground No.2 above. From the arguments made by the learned Advocates for the parties and particularly by Mr. Mukherjee it appears that the case of the petitioner comes within the category of the ground No.2 above. Thus, it is to be explored whether there is any mistake or error apparent on the face of the record that crept in the judgment passed by the learned Judge in disposing of the appeal itself. And in fact that is what is the ratio decided in the case of M.M. Thomas (supra). Our scrutiny of exhibit 2(a), a xerox copy of which has been produced by the petitioner at the time of argument, it appears that it was an application made by the defendants before the executive officer, Howrah Municipality for mutation of their names for the purpose of determination of the taxes in respect of 13 Golam Abbas Lane, Salkia, Howrah. There it is claimed by the defendants that they are in occupation and possession of the said premises since 1950 and the settlement records has also been prepared accordingly. It is further stated there that they had not paid rents to the landlord nor did landlord claim any rent from them and the landlord had allowed them to stay there as lease-holder. 11. Although exhibit 2(a) does not find any mention specifically in the judgment of the learned Judge, the judgment appears to be a comprehensive one having dealt with all the aspects in all details and it is observed there that the determination and decision of the courts below as regards the nature of possession of the defendant is a question of pure facts. Accordingly, I do not find any ground that non-consideration of exhibit 2(a) warrants the court to invoke its jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure and as such the revisional application is liable to be rejected. 12. Accordingly, the review application is dismissed on contest. All the interim orders, if any, are hereby vacated. Review application dismissed.