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2010 DIGILAW 1248 (RAJ)

Om Prakash v. Vijay Singh

2010-07-19

RAKESH HOOJA

body2010
Dr. HOOJA, C.—This is a review petition under Section 229 of the Rajasthan Tenancy Act, 1955 (in short the Act) directed against the impugned judgment dated 22.1.2010 of this court passed in Appeal Decree/TA/11336/99 (Old number 92/99)/Barmer. 2. Briefly stated the facts leading to the review petition are that the father of petitioners/plaintiffs had filed a suit under Section 88 of the Act against Shrimati Mangi Bai whose legal representatives are non-petitioners/defendants in the court of Assistant Collector, Jaisalmer who dismissed the suit by his judgment dated 31.3.1993, which was challenged in first appeal in the court of Settlement Officer-cum-Revenue Appellate Authority (Barmer-Jaisalmer) who dismissed the appeal vide his judgment dated 19.12.1988, against which second appeal under Section 224 of the Act was moved by the petitioners/plaintiffs before the Division Bench of this Court which rejected the appeal and upheld the judgments of both the lower courts vide its judgment dated 22.10.2010 which is sought to be reviewed and rescinded by the petitioners through the review petition under consideration. The judgment dated 22.10.2010 was passed by DB of the Board. One of the Members who had passed the order has ceased to be attached to the Board. Thus the petition is being heard and decided by the surviving member of the DB. 3. We have heard the learned counsel for the petitioners in this regard. 4. The learned counsel for the petitioners has pleaded that this Court has not considered the fact that the petitioners have been in possession of the land in dispute and that the non-petitioners were not in possession of the said land and had not submitted relevant revenue record in favour of their claim to khatedari of the said land. It was also contended that this Court has not considered the contention that on Issue Number 4 of the lower court had erred in relying merely on certificate of Municipality to consider the land in abadi area. In verbal pleadings the learned counsel contended that it was incumbent on the lower courts to have considered and decided each of the six issues and that this Court should in deciding the second appeal have discussed each issue. It was further contended in the verbal pleading that the various documents submitted in support of their case by the petitioners should have been discussed while deciding the second appeal. It was further contended in the verbal pleading that the various documents submitted in support of their case by the petitioners should have been discussed while deciding the second appeal. It has been prayed that the impugned judgment dated 22.10.2010 be set aside and that the second appeal be accepted. 5. We have given thoughtful consideration to the submissions of the learned counsel for the petitioners, perused the impugned judgment dated 15.1.2010 of this Court which is sought to be reviewed by the petitioners, and gone through the case file. 6. The learned counsel has repeated arguments made during the course of the hearing of the second appeal. The six issues framed by the lower court and whether the lower courts had considered each issue (including regarding possession of the land in question, and khatedari rights) in the light of available evidence, and the matter of decision of Issue Number 4 as to whether the land existed in abadi area, have all found mention and have been dealt with in the impugned order dated 22.10.20100 of this Court. Once a conscious decision has been made on the pleas raised by the petitioners/plaintiffs in the second appeal by this Court, such decision cannot be changed on re-submission of the same arguments through a review petition. A review can be undertaken only as per provisions of Section 229 of the Act, the relevant part of which, for the sake of convenience, is reproduced and discussed as under:- "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 view and may rescind, alter or confirm any decree or other made by itself or by any of its members;..." 7. 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 section 114 and Order 47 of the CPC. Section 114 of the CPC is excluded from its operation in respect of the agricultural tenancy disputes as per IV Schedule (List 1) of the Act and by virtue of specific exception made by Section 2008. The provisions of review are enshrined in section 114 and Order 47 of the CPC. Section 114 of the CPC is excluded from its operation in respect of the agricultural tenancy disputes as per IV Schedule (List 1) of the Act and by virtue of specific exception made by Section 2008. As such only provisions of Order 47 of the CPC are applicable in respect of review petition filed under Section 229 of the Act. According to Order 47 the scope of review is very limited, 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 made; or (ii) Some mistake or error apparent on the face of the record; or (iii) For any other sufficient reason (which has been interpreted in the past to be analogous to the two reasons specified above). 8. The learned counsel for the petitioners has not submitted any fact which is covered under any of the two grounds cited above. There is neither discovery of any new and important matter of evidence nor any new facts 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 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 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. The learned counsel for the petitioner has not pointed out such a striking error which stands out singularly on the face of record. In face while hearing arguments of learned counsel for petitioners this court repeatedly requested learned counsel as to what new or important matter of evidence as per Order 47 of CPC or mistake or error apparent on the face of record existed but failed to get any relevant or specific reply. 9. 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 (which has not been proved in this case); in this regard we are placing reliance on the pronouncement of Hon'ble Supreme Court as reported in 2005(1) RRT 545. 10. The learned counsel for the petitioners, 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. The scope of review is not the same as that of appeal (1973 RRD 273). Hearing of review does not mean giving one more chance for re-hearing of the matter already disposed of since in a review the court cannot sit in appeal over the decision sought to be reviewed. 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. We are fortified in holding this view by pronouncement of Hon'ble Supreme Court as reported in 2003(1) WLC (SC) 499. 11. In view of the foregoing discussions, there is no force in the review petition which stands dismissed, thus the impugned order dated 22.1.2010 stands. Pronounced in open court.