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2009 DIGILAW 1422 (RAJ)

Kusum Devi Chaturvedi v. Parmanand

2009-05-26

G.K.TIWARI

body2009
TIWARI, M.—This is a review petition under Section 229 of the Rajasthan Tenancy Act, 1955 (in short 'the Act') against the impugned judgment dated 2.2.09 of the Division Bench of this Court passed in appeal decree TA/4698/Jhalawar and Appeal Decree/TA/3321/05/Jhalawar. 2. Briefly stated, the facts in this regard are that the non-petitioner No. 1 appellant filed an appeal under section 224 of the Act against the impugned judgments and decree dated 23.3.01 and 25.4.05 of Revenue Appellate Authority. The Division Bench of this Court vide its judgment dated 2.2.09 dismissed the appeal No. 4698/03 and allowed the appeal No. 3321/05 and remanded the case of Sub-Divisional Officer Jhalawar for preparing final decree keeping in view the observations made in judgment dated 2.2.09. It was also directed that the proposal for division of holding among all the co-tenants by metes and bounds should be prepared by the concerned Tehsildar in accordance with the concerned rules of Rajasthan Tenancy (Board of Revenue) Rules, 1955. Thereafter Sub-Divisional Officer was directed to issue final decree affording opportunity of hearing to the rival parties. This judgment is sought to be reviewed by the petitioner under section 229 of the Act. 3. The impugned judgment dated 2.2.09 sought to be reviewed is judgment delivered by the Division Bench of this Court. The Division Bench comprised of Smt. Kushal Singh, Chairman, Board of Revenue and the undersigned. Hon'ble Chairman of this Division Bench stand transferred to Jaipur as Chief Secretary to the State Government as such this review is being decided by the undersigned the remaining member. 4. I have heard the learned counsel for the petitioner. 5. The learned counsel for the petitioner has argued that the appeal before the lower Court was barred by limitation. Without formal condoning of the delay the appeal was not maintainable. No finding is given on the point of limitation as such the impugned judgment dated 2.2.09 deserves to be reviewed on this ground only. It was also argued that the non-petitioner appellant Parmanand had admitted the mutual division of holding carried out among the co-tenants as such he was estopped from not accepting the partition effected by mutual consent of the parties. This point of estoppel was not discussed. It was also contended that Rules 18 to 21 of the Rajasthan Tenancy (Board of Revenue) Rules 1955 are only advisory and not mandatory. This point of estoppel was not discussed. It was also contended that Rules 18 to 21 of the Rajasthan Tenancy (Board of Revenue) Rules 1955 are only advisory and not mandatory. It was also contended that the application filed before Sub-Divisional Officer Jhalawar under Order 9 Rule 13of the Civil Procedure Code was rejected by the trial Court against which non-petitioner No. 1 did not file any appeal or revision as such the non-petitioner No. 1 appellant had no right to file appeal before this Court. As such the impugned judgment dated 2.2.09 should be reviewed and rescinded. The learned counsel cited 2006 RBJ 78, 2006(13) RBJ 345, 2007 RRD 560 and 2005(12) RBJ 432. 6. I have given thoughtful consideration to the submissions of the learned counsel for the petitioner, carefully gone though the judgment dated 2.2.09 of this Court and perused the record available on the file. 7. Under section 229(1) of the Act a review petition can be filed before Board of Revenue for reviewing its own judgment. Relevant part of this section is reproduced below:- "229. Power of review by Board and other revenue Courts.-Subject to the provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908)- (1) the Board of 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; ..................." The above section begins with the words 'subject to provisions of Code of Civil Procedure' (C.P.C. in short). The provisions of review are enshrined in Sec. 114 and Order 47 of the C.P.C. Sec. 114 of the C.P.C.is excluded from its operation in respect of the agricultural tenancy disputes as per IV Schedule (List 1) of the Act; as such only provisions of Order 47 of the C.P.C. are applicable in respect of review petition filed u/Sec. 229 of the Act. According to Order 47 review of a judgment can be allowed on the following grounds:- (i) Discovery of new and important matter of evidence which after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when decree was passed or order was mad; OR (ii) Some mistake or error apparent on the face of the record; OR (iii) For any other sufficient reason. 8. In light of above provisions of law for the review of judgment, the learned counsel for the petitioner has not submitted any fact which is covered under any of the grounds cited above. There is neither discovery of any new and important matter of evidence or fresh facts which after the exercise of due diligence was not within the knowledge of the applicant or could not be pro-duced by him at the time of passing of the judgment, nor there is any mistake or error apparent on the face of the record. The plea that the pleadings and arguments advanced by the petitioner were not heeded to or acted upon by this Court is not an error apparent on the face of record. An error apparent on the face of record means an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions as is held by Hon'ble Supreme Court in AIR 1995 SC 455 . The learned counsel for the petitioner has not pointed out such a striking error which stands out singularly on the face of record. 9. The contention of the learned counsel for the petitioner that the point of limitation was not discussed and decided by this Court, is not tenable in view of the face that para 9 of the judgment dated 2.2.09 deals exclusively with the point of limitation and it has been decided that the division of holding is a continuous right and a dispute involving division of holding should be decided on merits and not on technical consideration of limitation and as such the delay was condoned by adopting a liberal view and the matter was decided on merits only. As far as argument of the learned counsel for the petitioner that Rules 18 to 21 of the Rajasthan Tenancy (Board of Revenue) Rules 1955 are advisory and not directory it has been expressly held that these rules are mandatory and not just advisory. Rules 20 and 21 are meant for compliance in pursuance of a Court decree only. As far as citations of the learned counsel for the petition are concerned, the facts of 2007 RRD 560 are totally different wherein lands sought to be divided were situated in two different villages and so taking into consideration the special nature and distant situation of the disputed land a relevant and practical decision was made. Thus, the fact of these two appeals are altogether different and as such this ruling is not applicable in this case. The facts cited in 2006(13) RBJ 345 are also altogether different as it was held therein that a decision was given on the subject matter which was not impugned under a mistaken impression; it was also held that a fraud was played on the Court by misleading it; but such is not the instant case and as such in the matter under consideration this ruling is not applicable. The citation of Hon'ble High Court of Rajasthan as contained in 2005(12)RBJ 432 are respectively fully agreed to that this Court has power to review its own decision, provided the grounds for the review should cover the provisions of Order 47 Rule 1 of the CPC as held in AIR 1995 (SC) 455 ; but the petitioner has failed to establish that this case falls within the provisions and parameters of Order 47 Rule 1 of the C.P.C. 10. The contentions of the learned counsel that his earlier arguments were not given consideration and accepted by this Court could not be a ground for the review of a judgment. A point raised in the argument that has been heard and decided cannot form a ground for review even if assuming that the view taken in the judgment under review is erroneous; in this regard I am placing reliance on the pronouncement of Hon'ble Supreme Court as reported in 2005(1) RRT 545. 11. The learned counsel for the petitioner, in fact, has re-argued the case of appeal which already stands decided by the impugned judgment. 11. The learned counsel for the petitioner, in fact, has re-argued the case of appeal which already stands decided by the impugned judgment. The scope of review under Section 229 of the Act read with Order 47(1) of the CPC is quite limited. Hearing of review does not mean giving one more chance for re-hearing of the matter already disposed of. A review is not an alibi for a third appeal; it does not facilitate or provide fresh opportunity for reiteration of the arguments in respect of the dispute already decided in the appeal. I am fortified in holding this view by pronouncement of Hon'ble Supreme Court as reported in 2003(1) WLC (SC) 499. 12. In view of the foregoing discussions, the review petition fails and as such the review petition is dismissed in limine. Pronounced.