Aruppukttai Devangar Arts College v. Balasubramaniasamy Temple
2015-02-27
A.SELVAM
body2015
DigiLaw.ai
Judgment :- 1. This Review Application has been preferred against the Judgment and decree passed in Second Appeal(MD)No.1100 of 1998. 2. The respondents herein as plaintiffs have instituted Original Suit No.36 of 1996 on the file of the District Munsif Court, Aruppukkottai for the reliefs of cancellation of the gift deed dated 15.11.1970 and also for recovery of possession of the suit property, wherein the present review applicant has been arrayed as sole defendant. 3. In the plaint it is averred that the suit property is the absolute property of the plaintiffs. The erstwhile trustees namely Kanagasababathy Chettiar and Malliah Chettiar have falsely executed a gift deed dated 15.11.1970 in favour of the defendant and the same is void. As per gift deed dated 15.11.1970, the defendant has not derived any title to the suit property. under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendant, it is averred that the suit property is the absolute property of the executants of the gift deed dated 15.11.1970 and from the date of execution, the defendant has become an absolute owner of the same. Since the defendant has had enjoyed the suit property for more than a statutory period, the defendant has perfected title to the same by adverse possession and therefore the present suit deserves to be dismissed. 5. On the basis of the rival pleadings putforth on either side as well as on the basis of evidence adduced by them, the trial Court has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiffs as appellants have preferred Appeal Suit No.318 of 1996 on the file of the Sub Court, Virudhunagar. The first appellate Court after hearing both sides, has dismissed the appeal. The concurrent Judgments and decrees passed by the Courts below have been challenged in Second Appeal(MD)No.1100 of 1998 and this Court after hearing both sides and upon reappraising the evidence available on record, has allowed the appeal and thereby granted a decree of recovery of possession in favour of the plaintiffs and in order to review the Judgment and decree passed in Second Appeal(MD)No.1100 of 1998, the present Review Application has been filed by the sole defendant as review petitioner. 6.
6. The learned senior counsel appearing for the review petitioner has contended with great vehemence to the effect that the suit property has not been properly identified and the property mentioned in the gift deed is not at all the suit property and this Court has failed to consider the same and therefore the Judgment and decree passed in Second Appeal(MD)No.1100 of 1998 are liable to be reviewed. 7. In order to substantiate the contention putforth on the side of the review petitioner, the following decisions are relied upon: (i) In Phanidhar Kalita v. Saraswati Devi reported in LAWS(SC) 2014-3-24, it is held as follows: “We carefully considered the rival contentions and the records. The title of the appellant/plaintiff to the suit schedule-1 property has already been declared by the High Court and that finding has become final. The Trial Court as well as the Lower Appellate Court held that the Amin Commissioner has not measured the dags falling north east - east west of the appellant/plaintiff's land and the respondent no.1/defendant no.1's land. Whether schedule-2 is encroached property of the respondent no.1/defendant no.1 as alleged by the appellant/plaintiff has to be determined for adjudicating the other reliefs claimed in the plaint. In the interest of justice, we deem it fit to remit the matter to the Trial Court for fresh adjudication with regard to the reliefs of recovery of possession and permanent injunction only. The appeals are allowed and the impugned judgment and decree of the High Court, declining the reliefs of recovery of possession of schedule-2 property and permanent injunction, are set aside and the matter is remitted to the trial Court for fresh adjudication with regard to the said reliefs only and the parties are permitted to adduce evidence and the Trial Court after adjudication shall pass a comprehensive decree in respect of all the reliefs claimed in the suit. No costs. Since the title suit is of the year 1987 the Trial Court shall endeavour to dispose of the same as expeditiously as possible preferably within a period of six months from the date of receipt of records”.
No costs. Since the title suit is of the year 1987 the Trial Court shall endeavour to dispose of the same as expeditiously as possible preferably within a period of six months from the date of receipt of records”. Even a cursory look of the decision rendered by the Hon'ble Apex Court, it is made clear that the property in question has not been properly measured by the Amin Commissioner and under the said circumstances, the Hon'ble Apex Court has held that the property in question has to be measured properly and therefore the Original Suit has been remitted to the file of the trial Court. (ii) In Haridas Das v. Usha Rani Banik (Smt) and Others reported in (2006)4 Supreme Court Cases 78, it is held that on the basis of given circumstances, the subsequent suit is not barred under Order 2, Rule 2 of the Code of Civil Procedure, 1908. 8. In order to resile the contentions putforth on the side of the review petitioner, the learned counsel appearing for the respondents has laconically contended that in the written statement filed on the side of the defendant, no mention has been made with regard to identity of the suit property and the specific contention putforth on the side of the defendant is that the suit property is the absolute property of the executants of gift deed dated 15.11.1970 and ultimately on the side of the defendant it is stated that the defendant has perfected title to the suit property by adverse possession and this Court after considering the fact that the suit property is not the absolute property of the executants of the gift deed dated 15.11.1970, has rightly held that the plaintiffs are having title to the same and this Court has not committed any error nor mistake apparent on the face of the record and as per Order 47, Rule 1 of the Code of Civil Procedure, 1908, review application is maintainable only on the basis of error apparent or mistake in the Judgment in question and under the said circumstances, this review application is not at all maintainable and therefore the same deserves to be dismissed. 9.
9. In order to encrust the contentions putforth on the side of the respondents, the following decisions are relied upon: (i) In Smt.Meera Bhanja v. Nirmala Kumari Choudhury reported in AIR 1995 Supreme Court 455, it is held that 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. (ii) In Lily Thomas etc. v. Union of India and others reported in AIR 2000 Supreme Court 1650, it is held that Order 47, Rule 1 can be invoked only for correction of mistakes and not to substitute views. (iii) In Ramasamy & Co., by its Partner, S.Chelladurai and Others v. B.Ashok Kumar and Others reported in 2014(3) MWN (Civil) 402, this Court has held that review permissible only for correction of a mistake or an error apparent on face of record. (iv) In Parsion Devi & Ors. v. Sumitri Devi & Ors. reported in 1998-1- L.W.106, the Hon'ble Apex Court has held that under Order 47, Rule 1 of the Code of Civil Procedure, 1908, review can be invoked only on error apparent on the face of the record. 10. From a cumulative reading of the decisions referred to supra, it is made clear to the Court that Order 47, Rule 1 of the Code of Civil Procedure, 1908 can be invoked only on the ground that there is a mistake or error on the face of record. 11. In the instant case, this Court has much analysed the written statement filed on the side of the defendant and ultimately found that it has not been specifically pleaded that the suit property has not been identified properly. Further it is not the plea of the defendant that the suit property is not found place in the trust deed mentioned in the plaint. The specific case putforth on the side of the defendant is that the suit property is the absolute property of the executants of the gift deed dated 15.11.1970 and this Court has specifically held that the defendant has failed to prove that the suit property is the absolute property of the executants of the gift deed mentioned supra. Further this Court has held that the suit property is the absolute property of the plaintiffs.
Further this Court has held that the suit property is the absolute property of the plaintiffs. Since this Court has decided the issue on the basis of records, the review petitioner/defendant cannot say that this Court has committed error apparent or mistake on the face of record. 12. It has already been pointed out that Order 47, Rule 1 of the Code of Civil Procedure, 1908 can be invoked only on the basis of error apparent or mistake on the face of record. In the instant case, the aforesaid aspect has not arisen. Since the aforesaid aspect has not arisen, it is needless to say that the present review application is not at all maintainable. 13. On the side of the review petitioner, an application in M.P(MD)No.1 of 2013 has been filed for reception of additional documents and this Court has perused the documents filed alongwith M.P(MD)No.1 of 2013 and the same are not relevant for the purpose of deciding the present review application. Under the said circumstances, M.P(MD)No.1 of 2013 is liable to be dismissed. 14. As pointed out earlier, the present review application is not at all legally maintainable and since the same is not at all legally maintainable, the same is liable to be dismissed. 15. In fine, this Review Application is dismissed with costs. Consequently, connected M.P(MD)No.1 of 2014 is dismissed.