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2015 DIGILAW 3746 (ALL)

Ram Pratap Dubey v. Harishchandra

2015-12-01

RITU RAJ AWASTHI

body2015
JUDGMENT Ritu Raj Awasthi, J. Heard learned counsel for the review-petitioner as well as Mr. Mohd. Arif Khan, learned Sr. Advocate assisted by Mr.Mohd. Aslam Khan, appearing for the respondents and gone through the records. 2. This review petition arises out of the judgment and order dated 7.10.2013 passed in Second Appeal No.309 of 2013 whereby the second appeal preferred by Mr.Surjeet Kumar and others was dismissed at the admission stage with the observation that it does not contain any substantial question of law. The review-petitioner was appellant no.7 in the second appeal. 3. Mr.Anu Pratap Singh, Advocate was permitted by the Court to assist the review-petitioner to place his submissions as Mr.R.N.Gupta, Advocate who had filed the second appeal on behalf of the appellant/applicant had expressed his difficulties in appearing in the review petition. Serious allegations have been levelled against Mr.R.N.Gupta and Mr.Manoj Kumar Gupta, learned counsel for the appellant as it is said that they deliberately did not file certain important and relevant documents in order to make the case of the appellant/applicant weak. 4. It is submitted by the review-petitioner that the suit filed by the respondents was not maintainable as the civil court has no jurisdiction to entertain the suit in respect of plaintiff's right in the agricultural land and the proper remedy was to file a suit under Section 229-B, U.P.Z.A.& L.R. Act, for declaration of his rights. In support of his submissions, he has relied on the judgment rendered in the case of Smt. Sudama Vs. Hansraj; 1981 RD 116. 5. It is further submitted that the suit was barred under Section 331 of U.P.Z.A.& L.R. Act. It is also contended that in view of law laid down in the case of Hari Narain Vs. 4th A.D.J., Azamgarh; 2000 RD 138 , if title is disputed, suit for permanent injunction before the civil court is not maintainable rather suit under section 229-B, U.P.Z.A.& L.R. is only maintainable. Thus, the suit filed by Harish Chandra was not maintainable. Learned counsel for review-petitioner also submits that the suit was decreed in violation of Order 7, Rule 11(d) C.P.C. as well as Sections 9 and 54, C.P.C. 6. Thus, the suit filed by Harish Chandra was not maintainable. Learned counsel for review-petitioner also submits that the suit was decreed in violation of Order 7, Rule 11(d) C.P.C. as well as Sections 9 and 54, C.P.C. 6. Learned counsel for the review-petitioner has also tried to raise certain contentions on the merits of the orders passed by the Court below which do not require consideration as in the review petition they are not required to be considered at this stage. 7. Mr.Mohd. Arif Khan, learned Sr.Advocate assisted by Mr.Mohd. Aslam Khan, learned counsel appearing for respondents has vehemently opposed the maintainability of the review petition. 8. It is submitted that in view of the law laid down by the Apex Court as well as this Court in the case of Meera Bhanja vs Nirmala Kumari Choudhury; 1995 SCC (1) 170, it is well settled that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. The power of review is not to be confused with the appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court. 9. It is submitted that this review petition has been filed in order to linger on the proceedings. The review-petitioner has intentionally and deliberately made false allegations against earlier lawyers; namely, Mr. R.N.Gupta and Mr.Manoj Kumar Gupta in order to gain sympathy from the Court. The above averments are totally misleading, deliberate and false as the appellant/applicant has engaged Mr.Manoj Kumar Gupta, Advocate to represent him in pending Writ Petition No.79 (Consolidation) 2011 which is relating to the property in dispute. Mr. Manoj Kumar Gupta has sought adjournment on behalf of the appellant/applicant in the said writ petition on 18.4.2014. It is also submitted that there is no error apparent on the face of record. The review petition deserves to be dismissed with exemplary cost. 10. I have considered the submissions made by the parties' counsel and gone through the records. 11. The order under review clearly indicates that the Court by coming to the conclusion that the second appeal filed by the appellant/applicant is devoid of merits and it does not contain any substantial question of law, has recorded that a suit for perpetual injunction, subsequently amended with a relief for possession, was filed by the respondents. 11. The order under review clearly indicates that the Court by coming to the conclusion that the second appeal filed by the appellant/applicant is devoid of merits and it does not contain any substantial question of law, has recorded that a suit for perpetual injunction, subsequently amended with a relief for possession, was filed by the respondents. It was registered as Regular Suit No. 488 of 1987. While deciding the said suit, learned trial court has framed certain issues. 12. The issue nos. 1 & 2 were with respect to "whether plaintiff is owner and is in possession being bhumidhar over the disputed land and whether the land in dispute is indefinite" whereas issue no.4 was "whether the land in dispute belongs to respondent nos. 1 and 2 being abadi land". The trial court has also framed an issue "as to whether the suit in question is barred by Section 331 U.P.Z.A.& L.R. Act" and the Issue no.8 was "whether a suit is not maintainable in the absence of possession of plaintiff over the land in dispute". The learned trial court was of the opinion that since the evidence with respect to the issue nos. 1, 4 and 8 are the same, as such, the said issues can be decided jointly. It was also observed that the burden to prove issue nos.1 and 8 lies on the plaintiff whereas the burden to prove issue no.4 lies on the defendant. 13. The learned trial court considering the evidence on record has come to the conclusion that the land in question is an agricultural land and the plaintiff was having possession over the land in dispute. It was also held that the appellants being defendants have failed to prove their possession over the land in question prior to 1.7.1952, as such they are not entitled to get the benefit of Section 9 , U.P.Z.A.&L.R. Act. Since the land in question is an agricultural land, therefore, the appellants/defendants cannot get the benefit of Section 123, U.P.Z.A.&L.R. Act. 14. Since the land in question is an agricultural land, therefore, the appellants/defendants cannot get the benefit of Section 123, U.P.Z.A.&L.R. Act. 14. In the present case, the trial court on the basis of evidence on record has come to the conclusion that the plaintiff is owner and is in possession being Bhoomidhar over the land in dispute and respondent has failed to prove his possession over the land in question prior to 1.7.1952 and, as such, has come to the conclusion that the suit was not barred by the provisions under Section 331 of U.P.Z.A.&L.R. Act. Even as per own case of the review-petitioner/applicant the land in question being Abadi land was in possession of the appellant. 15. Normally, Section 331, U.P.Z.A.&L.R. Act is attracted in such cases where a declaration of right or status of a tenure holder is necessarily needed. A recorded tenure holder or a person having possession over the land in question being Bhoomidhar cannot be denied the relief by civil court on the ground of non-maintainability of suit in view of Section 331, U.P.Z.A. & L.R. Act. 16. In the case of Ram Padarath Vs. AD.J, Sultanpur; 1989 AWC 291, the Full Bench of this Court has outlined the scope of Section 331, U.P.Z.A.& L.R. Act in detail. It has been held that Section 331 of U.P.Z.A.& L.R., excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the Act. Section 331 of U.P.Z.A.&L.R. Act alongwith explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court notwithstanding the fact that the consequential relief or ancillary relief flowing out of the main relief the grant of which also becomes necessary can be granted by the revenue court alone. The relevant paragraphs 35, 39 and 41 on reproduction read as under: "35. Section 331 of the U.P. Zamindari Abolition and Land Reforms Act excludes the jurisdiction of civil court in respect of those matters for which relief can be had from the revenue court by means of a suit, application or proceedings mentioned in Schedule II to the 'Act'. Section 331 of the Act, if read without Explanation, does not create any difficulty. Section 331 of the Act, if read without Explanation, does not create any difficulty. Dispute regarding jurisdiction arises when Explanation which is an integral part of the section is interpreted and applied to the facts of a particular case. The object of Explanation to any statutory provision is to understand the Act in the light of the Explanation which ordinarily does not enlarge scope of the original section which it explains, but only makes its meaning clear beyond dispute. The Explanation thus makes the things still more explicit and exists primarily removing doubts and dispute which may crop up in its absence. Section 331 of the 'Act' alongwith Explanation cannot be read so as to oust the jurisdiction of civil court if the primary relief on the same cause of action can be granted by the civil court notwithstanding the fact the consequential relief or ancillary relief flowing out of the main relief the grant of which also becomes necessary can be granted by revenue court alone. 39. Section 331 (1-A) of U.P. Zamindari Abolition and Land Reforms Act is analogous to section 21 of Civil Procedure Code. Section 21 of the Civil Procedure Code is also in similar language. Section 331 (1-A) of U.P. Zamindari Abolition and Land Reforms Act, like Section 21 Civil Procedure Code, requires that all the three conditions must co-exist i.e., objection is raised before the trial court before framing of the issues and that there has been no failure of justice and the appellate court or revisional court cannot entertain such an objection except when it is established that there has been failure of justice in trial of the proceedings in that court. 41. We are of the view that the case of India Deo v. Smt. Ram Pyari 1982 All LJ 1308 has been correctly decided and the said decision requires no consideration, while the Division Bench case, Dr. Ayodhya Prasad v. Gangotri 1981 All LJ 647 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court it does not lay down a good law. Ayodhya Prasad v. Gangotri 1981 All LJ 647 is regarding the jurisdiction of consolidation authorities, but so far as it holds that suit in respect of void document will lie in the Revenue Court it does not lay down a good law. Suit or action for cancellation of void document will generally lie in the Civil Court and a party cannot be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him to approach the Court of law and in such case he can also claim ancillary relief even though the same can be granted by the Revenue Court." 17. In the case of Smt. Sudama Vs. Hansraj (Supra), it has been held by this Court that the civil court has no jurisdiction to entertain a suit for declaration of rights of plaintiff in an agricultural land. The said relief could be granted by the revenue court of a competent jurisdiction notwithstanding the provisions of Section 49, U.P.C.H. Act. In the facts and circumstances of the present case, the judgment of this Court in the case of Smt. Sudama Vs. Hansraj (Supra), would not be applicable as the issue of declaration of rights of the parties over the land in question was not before the civil court. 18. It is also to be noted that it was the burden on defendants (present appellant-applicant) before the learned trial court to establish that the land in question is an abadi land of defendant nos. 1 and 2. The appellant-defendants have failed to produce any cogent evidence in this regard and the said issue was decided in favour of plaintiff. As such, I am of the view that the law laid down by this Court in the case of Hari Narain Vs. 4th A.D.J. Azamgarh (Supra), would not be of any assistance to the review petitioner as there was hardly any dispute with regard to title and ownership over the land in dispute. 19. As such, I am of the view that the law laid down by this Court in the case of Hari Narain Vs. 4th A.D.J. Azamgarh (Supra), would not be of any assistance to the review petitioner as there was hardly any dispute with regard to title and ownership over the land in dispute. 19. In view of the findings recorded by the trial court which were confirmed by the first appellate court, I am of the view that there is no question of violation of Order 7, Rule 11 (d) and Sections 9 and 54, C.P.C. and the suit filed by the plaintiff cannot be said to be barred by any law and the civil court had competence to decide the said suit. 20. It is also to be noted that the plaintiff/respondent had filed the suit claiming himself to be Bhumidhar. The consolidation operations had come to an end after notification under Section 52 of U.P.C.H. Act in the concerning village, hence the defendants/appellants or anyone else could not have challenged the same as it was barred by Section 49 of U.P.C.H. Act. 21. The trial court after framing necessary issues and after considering the entire oral as well as documentary evidence on record had decreed the suit vide judgment and decree dated 15.10.2007. Being aggrieved by the said judgment and decree, appellant/applicant had filed first appeal before the District Judge, Pratapgarh which was dismissed vide judgment and order dated 17.7.2013. Thereafter the appellant/applicant had filed the Second Appeal No.309 of 2013. This Court vide a detailed judgment and order has dismissed the second appeal at the admission stage. 22. It is also to be noted that there is limited scope of interference under the review jurisdiction. This view find support from the judgment and order dated 31.10.2014 passed by this Court in Review Petition No. 517 of 2014;Smt. Sheshpati and others Vs. Ram Krishna. The relevant paragraphs on reproduction read as under: - "In this regard Hon'ble the Apex Court in the case of M/s. Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372 , held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372 , held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out. Hon'ble the Apex Court in Subhash Vs. State of Maharastra & Another, AIR 2002 SC 2537 , the Apex Court emphasised that Court should not be misguided and should not lightly entertain the review application unless there are circumstances falling within the prescribed limits for that as the Courts and Tribunal should not proceed to re-examine the matter as if it was an original application before it for the reason that it cannot be a scope of review. This Court in the case of Bhagwant Singh Vs. Deputy Director of Consolidation & Another, AIR 1977 All. 163 , rejected the review application filed on a ground which had not been argued earlier because the counsel, at initial stage, had committed mistake in not relying on and arguing those points, held as under: - "It is not possible to review a judgment only to give the petitioner a fresh inning. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued. It is not for the litigant to judge of counsel's wisdom after the case has been decided. It is for the counsel to argue the case in the manner he thinks it should be argued. Once the case has been finally argued on merit and decided on merit, no application for review lies on the ground that the case should have been differently argued." In Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 , in a review petition filed under Order 47 Rule 1 CPC the Supreme Court held that the power of review under Article 226 of the Constitution of India, in reviewing its own orders, every Court including High Court inheres plenary jurisdiction, to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Further, the review lies only on the grounds mentioned in Order 47, Rule 1 read with Section 141 CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other " sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in the said provision of C.P.C. Thus, in view of the abovesaid facts, review can be allowed only on (1) discovery of new and important matter of evidence which, after exercise of due diligence, was not within the knowledge of the person seeking review, or could not be produced by him at the time when the order was made, or (2) when some mistake or error on the face of record is found, or (3) on any analogous ground. But review is not permissible on the ground that the decision was erroneous on merits as the same would be the province of an Appellate Court. In View of the above discussion , the law of review can be summarized that it lies only on the grounds mentioned in Order 47, Rule 1 CPC . The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other' sufficient reason' must satisfy that the said reason is analogous to the conditions mentioned in Order 47, Rule 1 CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for possible for the Court to take a view contrary to what had been taken earlier. Review lies only when there is error apparent on the face of the record and that fallibility is by the over-sight of the Court. Hon'ble Supreme Court in the case of Zahira Habibullah Sheikh Vs. State of Gujarat, (2004) 5 SCC 353 , after placing reliance on its earlier judgments i.e. P.N. Eswara Iyer etc. Vs. Registrar Supreme Court of India, (1980) 4 SCC 680 ; Sutherdraraja Vs. State, (1999) 9 SCC 323 ; Ramdeo Chauhan Vs. State of Assam, AIR 2001 SC 2231 ; and Devender Pal Singh Vs. State of NCT of Delhi, AIR 2003 SC 3365 ; observed that review applications "are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well." 23. Keeping in view the above legal position in mind, I do not find any good ground in the present review petition to grant indulgence. I am of the considered view that it does not call for any interference in the judgment and order dated 7.10.2013 passed in the Second Appeal No.309 of 2013. The review petition is liable to be dismissed. 24. It is accordingly dismissed 25. Interim order, if any, stands discharged.