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2006 DIGILAW 2464 (RAJ)

Jogendra Singh v. Chauth Mal

2006-08-13

A.C.SHARMA, SAMEER SINGH

body2006
Honble SHARMA, M.—This review petition has been filed under Section 229 of the Rajasthan Tenancy Act, 1955 against the impugned judgment of the Division Bench of the Board (constituting Honble Members Shri S.P. Pathak and Shri G.P. Sharma) dated 20.12.2000 in Appeal No.195/92. 2. The brief facts of this review petition are as under: 3. The plaintiff/non-petitioner No.1 filed a revenue suit u/S. 88 & 187 of the Rajasthan Tenancy Act with respect to Khasra No.938/149 measuring 7.10 bigha situated in Village Balita, Tehsil Ladpura, District Kota which was decreed by the trial Court on 23.1.90. Aggrieved by the impugned judgment and decree passed by the trial Court, an appeal was preferred before the Court of Revenue Appellate Authority by the present review-petitioner Jogendra Singh S/o Nand Singh and the same was rejected by the appellate Court vide its judgment dated 26.5.92. 4. The second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (to be referred hereinafter as `the Act) against the judgment and decree of the Revenue Appellate Authority, Kota dated 26.5.92 was filed before the Board. The D.B. of the Board constituting Honble Members Shri S.P. Pathak and Shri G.P. Sharma, dismissed the second appeal vide its judgment dated 20.12.2000 passed in the Second Appeal Decree No. 195/92/TA/Kota. The applicant-petitioner being aggrieved by the impugned judgment dated 20.12.2000 passed by the Board has now preferred a review petition dated 24.1.2001 before the Board. 5. We have heard the arguments of the learned advocates of both the parties and perused the entire record of the D.B. of this court and all the subordinate Courts. 6. The learned counsel for the review-petitioner has argued that the D.B. of the Board has overlooked certain important facts. It has been argued that there is no provision in the Rajasthan Tenancy Act by which the khatedari rights can be conferred through declaration by way of compromise between the contesting parties. It has further been argued that the trial court has erred in passing the impugned judgment and decree by declaring the khatedar-tenant of 7.3 bigha of khasra No.216 of the land under dispute. It has also been argued that without any evidence, oral or documentary, on record which could have proved Bhairu Lal, father of the present non-petitioner No.1 as sub-tenant since Svt. 2012 of the disputed land, the suit has wrongly been decreed in his favour. It has also been argued that without any evidence, oral or documentary, on record which could have proved Bhairu Lal, father of the present non-petitioner No.1 as sub-tenant since Svt. 2012 of the disputed land, the suit has wrongly been decreed in his favour. The plaintiff/non-petitioner No.1 could not prove his suit, even then the same has been decreed in his favour. It has also been put up assertively during the arguments that the subordinate courts have not appreciated this fact that the disputed land as per revenue record had been in the name of Madho and Narain who were also in possession and cultivation and plaintiff/non-petitioner No.1 Chauth Mal and his father have not cultivated the same. The petitioner is bonafide purchaser for value of this land who has been deprived of his rights by the impugned judgments of the subordinate courts and the courts have erred in passing the judgment and decree for the entire land 15 bigha of khasra No. 216. It has also been argued by the learned counsel for the petitioner that the revenue suit which was pending in the Court of S.D.O., Kota was transferred to Asstt. Collector which was without knowledge of the petitioner. Hence, the judgment and decree passed by the trial Court was without giving due opportunity to the petitioner-respondent. 7. The learned counsel for the petitioner has prayed that the judgment passed by the D.B. of the Board dated 20.12.2000 in Appeal No.195/92 be set aside and case be remanded to the trial Court for deciding it afresh. The learned counsel for the petitioner has relied on 2005 AIR Supreme Court page 592. 8. On the contrary, the learned advocate for the non-petitioners has assertively argued that the review petition is not at all maintainable because there is no error apparent on the face of the record in the impugned judgment of the D.B. of this Board. He has also argued that right from first memo of appeal in the appellate court onwards, nowhere it has been mentioned that the judgments given by the courts are for entire 15 bighas of land of khasra No. 216. Even the trial Court in its judgment and the decree parcha issued has mentioned only 7 bigha 10 biswa land. He has also argued that right from first memo of appeal in the appellate court onwards, nowhere it has been mentioned that the judgments given by the courts are for entire 15 bighas of land of khasra No. 216. Even the trial Court in its judgment and the decree parcha issued has mentioned only 7 bigha 10 biswa land. The learned advocate for the non-petitioners has argued that right from trial court to the second appellate court, everywhere the case has been fully contested and argued upon; and no material fact has been concealed or neglected. The findings of all the courts right from the original court of jurisdiction to the second appellate Court have been concurrent and decisive leaving no scope for any ambiguity. Hence, he has requested that the review petition, not being maintainable, be dismissed. The learned counsel for the non-petitioners relied upon 2005 RBJ page 540. 9. We have gone through the arguments of learned counsels of the rival parties and minutely observed and perused the records of the lower courts. here, we would also like to narrate the provisions for the review as enumerated in Order 47 Rule 1 of CPC read with Section 229 of the Rajasthan Tenancy Act:— "229. Power of review by Board and other revenue Courts.—Subject to the provisions of the Code of Civil Procedure, 1908 (Central V of 1908)— (1) the Board to its own motion or on the application of a party to a suit or proceeding, may review and may rescind, alter or confirm any decree or order made by itself or by any of its members." 10. It is explicitly clear that this section accepts the role of the provisions of CPC with reference to review of the decree/orders in the revenue cases. Section 229 beings with words "Sufficient to provisions of the Code of Civil Procedure" which relates to Order 47 Rule 1, which is as follows:— "O. 47, R. 1. It is explicitly clear that this section accepts the role of the provisions of CPC with reference to review of the decree/orders in the revenue cases. Section 229 beings with words "Sufficient to provisions of the Code of Civil Procedure" which relates to Order 47 Rule 1, which is as follows:— "O. 47, R. 1. Application for Review of Judgment.—Any person considering himself aggrieved— (a) by a decree or order from which 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." 11. On carefully looking into the provisions enumerated therein particularly O. 47 R. 1(c) of CPC, it is explicitly clear that the scope of review is applicable only in such cases where discovery of new and important matters or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner 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, desires to obtain a review of the decree or order passed. So far as the scope of review u/S. 229 is concerned, it is not unlimited and the powers under the said section is subject to conditions mentioned in CPC. It is obviously clear that in a review, the Court cannot sit in appeal over the impugned judgment sought to be reviewed. The only scope left with is the Court can only interfere by way of review if requirements of Order 47 Rule 1 read with Section 229 of the R.T. Act are fulfilled. It is obviously clear that in a review, the Court cannot sit in appeal over the impugned judgment sought to be reviewed. The only scope left with is the Court can only interfere by way of review if requirements of Order 47 Rule 1 read with Section 229 of the R.T. Act are fulfilled. We would like to also mention that error could be said to be apparent on the face of the record within the meaning and scope of Order 47 Rule 1 CPC, only when it can be noticed without going deep in record. 12. For a review, it is obligatory on the part of the petitioner to show existence of an error apparent on the face of the record. The Court deciding a review petition is not supposed to go into the correctness or otherwise of the decisions of the subordinate courts which have been decided on merit as fully contested cases. 13. In the light of the interpretation of the provisions of law as above, if we look into the entire litigation for the disputed land, it is very much clear that the judgments and decrees passed by various courts right from the original court of jurisdiction to this Board are based on the concurrent findings which are decisive in nature having no infirmity. The present petitioner has respondent has been given full opportunity, hence it has been wrongly alleged that the judgment and decree passed by the trial Court was without an opportunity of hearing given to him. Moreover, the learned advocate for the petitioner could not bring any fact to the notice of the Court which may attract the attention of the Court to exercise the jurisdiction for review after thoughtful consideration. 14. In the light of the above observations, we do not find any scope to entertain this petition for review of the impugned judgment passed by the Board in the second appeal No.195/92. Hence, the review petition having no force and substance is hereby dismissed and the judgment dated 20.12.2000 passed by the D.B. of the Board is maintained. 15. Pronounced in open Court.