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2014 DIGILAW 992 (GAU)

Khasnur Ali v. Khargeswar Baruah and ors.

2014-11-13

A.K.GOSWAMI

body2014
A. K. Goswami, J.:-- Registry will number the review petition. 2. This is an application under Order 47, Rule 1 of the CPC, 1908 praying for review of the judgment and order, dated 28.6.2013, passed by this court in RSA No.51/1999. 3. The review application is filed by the defendant No.1 in the suit, who was arrayed as principal respondent No.1 in the second appeal. 4. The suit land comprised of two schedules - Schedule-A and Schedule-B. 5. The learned trial court had decreed the suit declaring the plaintiffs right, title and interest over the suit land with a direction to the defendant No.1 to vacate the possession over the suit land in favour of the plaintiff within 6 months from the date of delivery of judgment, failing which the decree could be executed in accordance with law. 6. So far as Schedule-A is concerned, defendant No.1 had stated in the written statement that Schedule-A land is not a periodic Patta land, but is Government land and that the same is in his possession for 15 years or so. As regards Schedule-B land, the plea taken in the written statement was that the father of the plaintiff had sold, by way of registered deed, a plot of land measuring 1 Bigha to one Sanibar Nath, who, in turn, sold the said plot of land to defendant No.1. That apart, 1 Bigha, 2 Katha, 5 Lechas of land was also transferred by the plaintiff to defendant No.1, by way of endorsement in the chitha, instead of a sale deed. 7. The learned lower appellate court modified the decree of the learned trial court to the extent that defendant No.1 had title in respect of land measuring 1 Bigha of Schedule-B land by way of adverse possession. 8. This court, by the judgment under review, held that the plaintiff failed to prove his right, title and interest in Schedule-A land. It was also held that the plaintiff will be entitled to a declaration of right, title and interest in respect of Schedule-B land and the defendant No.1 will be liable to be ejected from Schedule-B land. 9. Mr. U. Dutta, learned counsel for the review petitioner submits that the finding of this court that there is no pleading regarding adverse possession by the defendant No.1 is vitiated by an error apparent on the face of record. 9. Mr. U. Dutta, learned counsel for the review petitioner submits that the finding of this court that there is no pleading regarding adverse possession by the defendant No.1 is vitiated by an error apparent on the face of record. He also submits that the learned trial court had also framed an issue, being Issue No.7, relating to adverse possession and, therefore, the judgment is required to be reviewed. 10. On the other hand, Mr. S. Chouhan, learned counsel for the appellant/respondent in the review petition submits that there is no error apparent on the face of the record and this court rightly held that there was no pleading whatsoever regarding adverse possession. 11. Issue No.7 reads as follows : "7. Whether the defendant has been possessing the Schedule 'B' land since 1978-79 continuously against the interest of the plaintiff and whether he constructed pacca houses, bathroom, etc., as alleged in para 12(VIII)(IX)(X) of the written statement and whether the defendant spent ' about Rs. 2 lakhs in constructing this houses and other structures, etc., in Schedule 'B' land?" 12. 'Paragraph 12' is a typographical error and the same ought to have been referred to as 'paragraph 22'. Paragraphs 22(VIII), 22(IX) and 22(X) of the plaint read as follows : "22(VIII) That, in about 1978/79 the defendant No.1 constructed a full wall pucca house with asbestos roofing measuring 38' x 12' ft. on the Northern side. To the south there is varandah measuring 6 ft. in width. There stands a pucca bathroom and sanitary latrine to the east of this house. The defendant No.1 planted betel nut coconut, other fruit-bearing trees in about 1978. 22(IX) That to the western side of the Schedule-B land, the defendant No.1 constructed another full wall pucca house with asbestos roofing measuring 27' x 10' ft. This house has also a verandah both on western and eastern side. The western verandah measures 6 ft. in width and the eastern verndah measuring 4 feet. 22(X) That in the southern side of the plot there is another tin roofed wooden frame house measuring 20' x 10' ft. Besides this pucca construction, the defendant No.1 has also constructed four other thatched houses and has also dug a tank." 13. It will be also appropriate to quote paragraph 22(XIII) and 22(XIV). 22(X) That in the southern side of the plot there is another tin roofed wooden frame house measuring 20' x 10' ft. Besides this pucca construction, the defendant No.1 has also constructed four other thatched houses and has also dug a tank." 13. It will be also appropriate to quote paragraph 22(XIII) and 22(XIV). They read as follows : "22(XIII) That the plaintiff lost his right, title in respect of Schedule A and B land long-long back. 22(XTV) That the plaintiff has been in long continuous possession of the Schedule-A land and B land more than 12 years as of right." 14. The aforesaid paragraphs do not indicate any pleading regarding adverse possession. The specific case of defendant No.1, in respect of Schedule-B land, was transfer of possession by way of sale. Both the trial court and the appellate court held that the defendant No.1 had failed to prove the sale of land in accordance with law. 15. Review proceedings are not by way of appeal and have to be confined to the scope and ambit of Order 47, Rule 1 , CPC. 16. An error apparent on the face of the record must be such an error, which is apparent and is self-evident and would not require any long-drawn process and reasoning on points, where there may be divergent opinions. 17. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise. It cannot be exercised on the ground that the decision rendered was erroneous on merits. Therefore, the submission of Mr. Dutta, that this court should have liberally construed the pleadings and ought to have held that the defendant No.1 had pleaded adverse possession, is, in essence, a challenge to the finding recorded, which can be corrected only by an appellate court. 18. In view of the above, there is no merit in this review petition and the same, accordingly, stands dismissed. -----------