Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 1739 (RAJ)

Harpal Singh v. Surendra Kaur

2005-07-10

SANJAY DIXIT

body2005
DIXIT, MEMBER–This review petition has been filed against the order of Honble Member of the Board Shri Vipin Chandra Sharma in a Single Bench judgment dated 8.3.2001. (2). The brief facts of the case are that the disputed land belonged to Mehtab Singh and after his death, the land was entered in the name of his son Harpal Singh who is the petitioner. The non-petitioners No. 1 to 4 filed an appeal, which was dismissed by the S.D.O. but later on an appeal before the Commissioner Bikaner Division has been accepted. Thereafter, a revision was filed in the Board of Revenue which was rejected on the following grounds. ``It is very difficult to ascertain whether respondent No. 2 to 4 were borne out of wedlock with Om Prakash and not with Mehtab Singh. There are a number of conflicting records in this case. I have gone through the order of the Divisional Commissioner, Bikaner and I agree with her that we cannot determine the paternity issue right now and therefore unless the matter is proved otherwise, it is presumed that all the children are of Mehtab Singh. If the children were of Om Prakash, then Surendra Kaur would have entered the children in schools as issue of Om Prakash. Even the ration card mentions the children as son of Mehtab Singh and therefore I find that the order of Divisional Commissioner is perfect in order and paternity right of children cannot be decided on the basis of oral evidence alone. Therefore, this revision has no substance and is being dismissed. (3). The counsel for the applicant has argued that an error apparent on the face of record has been committed by the revisionary court by not looking at the evidence furnished by them and deciding the case against them. (4). I heard the counsel for the applicant and went through the file. (5). What has been alleged as the error apparent on the face of record by the learned counsel for the applicant is actually pertaining to appreciation of evidence. It is well settled that the appreciation of evidence cannot be done by a court of review. The scope of review has been defined in various rulings, some of which may be worth mentioning here :- (6). It is well settled that the appreciation of evidence cannot be done by a court of review. The scope of review has been defined in various rulings, some of which may be worth mentioning here :- (6). Supreme Court in the case of `Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma AIR 1979 SC 1047 speaking through Chinnappa Reddy, J. made following pertinent observations with regard to the powers of review of the High Courts and which would mutatis mutandis apply to this Court being a court of plenary jurisdiction: ``It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court. (7). The power of review of the Board of Revenue emanates from section 86 of the LR Act which is akin to order 47 rule 1 of the CPC and it is also provided in sub-clause III of Section 86 that an application for review under this Section shall lie on any of the grounds mentioned in rule 1 of order 47 of the first schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) and the provisions of the said order shall, subject to the provisions contained in sub-section 1 or Section 2 (sic?) be applicable. (8). (8). Regarding the power of review under order 47 rule 1 CPC, the Supreme Court has stated in `Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary AIR 1995 SC page 455 that an error would not become a patent error or error apparent by merely styling the reasoning adopted by an earlier bench as suffering from a patent error. The Supreme Court went on to say that ``in substance, the review Bench has reappreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench findings were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of the appellate court. (9). It further went on to say that ``Right or wrong the earlier Division Bench judgment had become final so far as the High Court was concerned. 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. (10). In view of the ratio of the above rulings, it is crystal clear that it would not be possible for this court to reopen the case in review. An error apparent on the face of record should be an error which strikes one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. This is not the case in the petition before me. In fact, the review petition consists of a long winded reasoning in trying to prove errors on face of record. That being the case, I am not inclined to agree with the learned counsel for the applicant that there is an error apparent on the face of record. In any case, the case is still alive in the Trial Court, which is the right forum for reappreciating all the evidence which have been put forth by the applicant. The request for admission of the review petition is, therefore, rejected. Pronounced in open court.