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2013 DIGILAW 152 (JK)

Ghulam Hassan Wani v. Bashir Ahmad Wani & Ors.

2013-03-14

MOHAMMAD YAQOOB MIR

body2013
1. Civil Revision No.125/2004 tilted Ghulam Hassan Wani v. Bashir Ahmad Wani & ors stand dismissed vide judgment dated 07.06.2005. Review of the said judgment is sought on various grounds projected in the memo of review petition. 2. Precise factual background necessary for effectual adjudication of the grounds projected is as under: (I) One Shamas-ud-din and Mst. Sajida were married to each other, they were issueless. Bashir Ahmad Wani (respondent No.1 herein) 1 claimed to be the adopted son of Shamas-ud-din. After the death of I Shamas-ud-din, said Bashir Ahmad Wani filed suit for declaration and injunction captioned Bashir Ahmad Wani v. Mst. Sajida before the Court of Sub Judge, Handwara, for declaring late Shamas-ud-din as absolute owner of land measuring 5 kanals and 16 marlas covered by survey No.1506 situated at Battergam and 1 kanal 16 marlas of land situated at village Kupwara including residential house and shopping complex existing over the said land and for declaring him (plaintiff) as owner of the land as having devolved upon him by virtue of an oral gift. (II) Mst. Sajida(defendant in the suit) in opposition has pleaded that in fact it is she who was the absolute owner in possession of suit property as same was purchased by her, further has added that the adoption deed where-under plaintiff (Bashir Ahmad Wani) alleged to have been adopted by her husband, has been revoked by her. (III) Alongside suit, an application for grant of temporary injunction has been filed which was dismissed. Appeal preferred before District Judge, Kupwara also failed. Thereafter civil revision No.83/95 had been filed which also stand dismissed on 27.11.1997. As against the said order of dismissal, review application No.12/1997was filed by the plaintiff (Bashir Ahmad Wani). (IV) In the trial court plaintiff (Bashir Ahmad Wani) filed an application for amendment in view of the development i.e. during pendency of the suit, Mst.,Sajida (defendant) had executed a gift deed in favour of Ghulam Hassan Wani vis-a-vis some portion of the suit property. The application was allowed on 29.9.1998. Ghulam Hassan Wani(donee), filed revision petition No.146/1998 against the said order which has been dismissed on 27.12.2002. In the same order it is also recorded that the counsel appearing in review Petition No.12/97 submitted that the review petition may be dismissed as withdrawn, as such dismissed. (V) During pendency of Revision Petition No.146/98, Mst. The application was allowed on 29.9.1998. Ghulam Hassan Wani(donee), filed revision petition No.146/1998 against the said order which has been dismissed on 27.12.2002. In the same order it is also recorded that the counsel appearing in review Petition No.12/97 submitted that the review petition may be dismissed as withdrawn, as such dismissed. (V) During pendency of Revision Petition No.146/98, Mst. Sajida died, her legal heirs were brought on record vide order dated 20.11.2000. (VI) In the trial court when records were received, application for substitution on behalf of Mst. Sajida and others was filed whereas Ghulam Hassan Wani (donee), on 5.8.2003, filed an application seeking dismissal of the suit as having abated. Trial court vide order dated 7th July, 2004 allowed the application for substitution, however, dismissed application of Ghulam Hassan Wani seeking abatement of the suit. (VII) Against the said order dated 7th July, 2004 said Ghulam Hassa/i Wani(donee), filed civil revision No.125/2004 which stand dismissed vide judgment 7.6.2005. For review of the said judgment instant review petition has been filed". 3. The first ground projected is that in the judgment dated 07.06.2005 it has been recorded that the trial court records were called for by the Court in CR No.146/98 on or about 23.8.1999 and Mst. Sajida died on 29.8.1999, plaintiff could file application for substitution of legal representatives by 29.2.2000, no adverse inference can be drawn if he did not file any such application upto 23.8.1999 when records were sent to the High Court. The Civil Revision petition remained pending and was disposed of on 27.12.2002 and records were sent back to the trial court only thereafter. In this context, it has been projected that in terms of order dated 6.8.1999 recorded in Civil Revision No.146/98 record of the trial court was send for but that record had already been submitted by the trial court in Review Petition No. 12/1997. The court has proceeded on the assumption that the record was sent for in revision petition No.146/98, therefore, failure of filing the application in the trial court during the intervening period is well explained. Said observation in order dated 07.06.2005 is termed to be an error on the face of record. 4. The above referred first ground projected is totally misplaced. In the civil Revision No.146/98, the order recorded on 6.8.1999 read as under: "Send for the record. Mr. Said observation in order dated 07.06.2005 is termed to be an error on the face of record. 4. The above referred first ground projected is totally misplaced. In the civil Revision No.146/98, the order recorded on 6.8.1999 read as under: "Send for the record. Mr. Wani has stated that record has already been submitted by the trial court in a pending Review Petition. Mr. Wani is directed to provide the particulars of that case within weeks time in the Registry" Then in the order dated 17.8.1999 passed in C. Revision No.146/98, it is recorded "particulars of the review petition have been furnished, same be listed along with". Then on 23.8.1999, following order has been passed: "Mr. N. A. Tabasum has stated that respondent No.2 Mst. Sajida died two weeks ago. Mr. Qayoom is directed to make formal application for bringing of LR's within two weeks. List this matter along with Review Petition No.12/97. The office is again directed to call for the record of the trial court" (emphasis supplied) The trial court record thereafter is shown to have been received as per report of the Registry and tagged with the file. Interim order dated 14.10.1998 passed in Review Petition No.12/97 is to the following effect: "Issue notice to the respondents returnable within four weeks. Records be summoned". Then Registry on 19.2.1999 has recorded the following note "record received and tagged with file". There was no order recorded in the said review petition that the trial court records shall be send for. It appears that it is only in view of that position, in Civil Revision No.146/98, on 23.8.1999, office was directed to call for the record of the trial court which was received thereafter. So it is clear that the trial court records have been send for in Civil Revision No.146/98 and received in compliance to the said order, therefore, submission of the learned counsel that the trial court record was already submitted by the trial court in review petition No.12/97, is totally misconceived which fact is further supported by the report of the Sub Judge, Handwara(trial court) in terms of which trial court record is shown to have been submitted in compliance to the orders passed in civil Revision No.146/98. The correct position has been reflected in the order about receipt of trial court records in civil revision No.146/98. 5. The correct position has been reflected in the order about receipt of trial court records in civil revision No.146/98. 5. Next ground projected in the review petition is that in the judgment dated 07.06.2005 passed in civil Revision No.125/2004 Court has observed that Mst. Habla, Haleema and Rafiqa were brought on record in civil Revision No.146/98 by none else than the petitioner himself, is not correct. Application was filed in civil revision for arraying legal heirs of Mst. Sajida i.e. her two sisters, namely, Syeda Begum and Khatija Begum, which is a fact but the order dated 20.11.2000 would provide that an application has been filed for arraying Mst. Sayeeda Begum and Mst. Khatija Begum as parties in place of Mst. Sajida Begum to which counsel for the respondents had not objected except it was submitted that besides Sayeeda Begum and Khatija Begum, Habla Begum, Rafiqa Begum and Haleema Begum are the three other legal heirs of said Sajida Begum besides Bashir Ahmad Wani who is already respondent No.1. On hearing counsel for the parties, all the five i.e. Mst. Sayeeda Begum, Khatija Begum, Habla Begum, Rafiqa Begum and Haleema Begum have been impleaded as being necessary and proper parties to the revision petition. The said order dated 20th November, 2000 has not been challenged anywhere. Virtually it is at the behest of petitioner, legal representatives were brought on record, it is in the aforesaid context Court has observed as to how the petitioner can challenge their position. The Court has considered the position as it was, therefore, 'it cannot be termed to be an error on the face of record. The Court has also opined in the judgment dated 07.06.2005 that the application was for impleadment of Mst. Khatija and Mst. Haleema in place of Mst. Sajida which can be due to ignorance. When the names of some heirs are omitted in the application, it cannot be said that 'the omission to mention their names in the application resulted in abatement of the suit. So the Court has considered this aspect, whatever finding cannot be corrected by invoking the review powers, scope of which is limited to correction of error apparent on record. 6. So the Court has considered this aspect, whatever finding cannot be corrected by invoking the review powers, scope of which is limited to correction of error apparent on record. 6. Next it has been projected that while dismissing revision petition it has been noticed in the order "it would appear that the subject matter of the dispute involved in the-suit is divisible, therefore, at best abatement of suit could be against other natural legal representatives of the deceased defendant i.e. Mst. Khatija and others. No objection so far appears to have been raised by them", when according to learned counsel, Mst. Khatija had not caused her appearance in the case before the trial court, so how could she raise objection. From the trial court records it is clear that summon was issued for procuring her presence which was not received back, so the observation that Mst. Khatija has not raised any objection about abatement of the suit, is a mistake apparent on the face of record. 7. The aforesaid submission is without any substance because Court has specifically observed in the order that Mst. Khatija and others have not raised objection. It is not only about Mst. Khatija but others also who have not raised objection. The said observation was in the context of the position of the gift because Mst. Sajida (deceased) had allegedly parted with the part of property (assuming it to be so) in favour of petitioner (Ghulam Hassan Wani) who already was a party. The property was divisible, therefore, to his extent there could be no abatement. When it is so, petitioner has no purpose in projecting case of Mst. Khatija and others, about whom the Court has observed that they have not raised any objection, therefore, this cannot be termed to be an error apparent on the face of record which can be, in any manner, to the advantage of the petitioner. In my opinion, it is not an error apparent. 8. Next it has been projected that the order dated 19.6.2003 recorded by the trial court in the suit proceedings has not been taken into consideration while deciding the revision petition. The said order, copy of which is placed on record, reads as under- "Counsel for the parties present. Plaintiff is also present. He has moved an application for deleting defendant No.1, who died on 9.8.99, from the list of defendants. The said order, copy of which is placed on record, reads as under- "Counsel for the parties present. Plaintiff is also present. He has moved an application for deleting defendant No.1, who died on 9.8.99, from the list of defendants. Counsel for defendants has no objection in accepting the application of the plaintiff. It is pertinent to mention here that before the High Court of J&K where the case was pending application for bringing L.R of defendant No.1 was filed and that application was within time. So keeping into consideration the submission of the parties defendant No.1 is deleted and office shall make necessary correction in the index. Let file come up on 19.7.2003 for recording the preliminary statements of the parties". 9. The position of the said order dated 19.6.2003 has been specifically referred to in the judgment under review at page 3, after consideration of the same along with other grounds, Court has formed the opinion which is not open for interference within the confines of review powers. Therefore, to claim that the order dated 19.6.2003 passed by the trial court has not been taken into consideration is imaginary. 10. The grounds projected for review of the judgment dated 07.06.2005, for the reasons stated above, are totally misplaced, no case for review is made out. The review petition is dismissed. The trial court shall ensure expeditious trial of the suit by scheduling its proceedings in a convenient manner so that this long pending matter is decided preferably within six months. 11. Copy of the order be sent to the trial court for information.