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2018 DIGILAW 1358 (GAU)

Amanat Hussain v. Musstt Sahida Begum

2018-09-14

A.K.GOSWAMI

body2018
JUDGMENT : Arup Kumar Goswami, J. Heard Mr. B.D. Deka, learned counsel for the review petitioners. Also heard Mr. A.C. Sarma, learned Sr. counsel appearing for the respondent. 2. By this review application, the review petitioners seek review of the common judgment and order dated 29.07.2015 passed in RSA Nos.193/2004 and 194/2004. 3. The respondent had filed a suit, being Title Suit No.10/1994 in the Court of Civil Judge, Junior Division No.1, at Goalpara against the review petitioners for declaration of right, title and interest in respect of Schedule-A and Schedule-B land; for a decree of mesne profit @ Rs. 1,000/- per month w.e.f. 01.03.1994 with interest @ 15% per annum; injunction, etc. Schedule-A land measures 1 katha 12 lechas and Schedule-B land measures 1 katha within the Schedule-A land. Recovery of possession was sought for in respect of Schedule-B land by evicting the defendants. 4. The review petitioners had also filed a suit against the plaintiff and her husband praying for right, title and interest in respect of Schedule-A land measuring 1 katha 12 lechas, which is the same very plot of land of Schedule-A of Title Suit No.10/1994. Prayer was also made for recovery of possession of 12 lechas of land mentioned in Schedule-B of the plaint and cancellation of sale deeds being Sale Deed No.4398 dated 25.11.1982 and Sale Deed No.1965 dated 19.03.1984 as well as mesne profit @ Rs. 2,000/- per month from the date of institution of the suit. 5. Title Suit No.10/1994 was dismissed by judgment and decree dated 23.12.2002 and in Title Appeal No.4/2004, the judgment and decree passed by the learned Trial Court was reversed by judgment and decree dated 28.05.2004. Against the said judgment, RSA No.194/2004 was preferred. 6. Title Suit No.75/1994 was decreed by judgment and order dated 23.12.2002 and in appeal i.e. Title Appeal No.3/2004, the judgment and decree dated 23.12.2002 was set aside by the learned Civil Judge (Senior Division), Goalpara, thereby allowing the appeal by judgment and decree dated 28.05.2004. RSA No.193/2004 came to be filed against the said judgment and decree. 7. Mr. Deka has submitted that RSA No.193/2004 was dismissed holding that Title Suit No.75/1994 was filed beyond the period of limitation. To that extent, Mr. Deka submits that the judgment under review cannot be faulted with. RSA No.193/2004 came to be filed against the said judgment and decree. 7. Mr. Deka has submitted that RSA No.193/2004 was dismissed holding that Title Suit No.75/1994 was filed beyond the period of limitation. To that extent, Mr. Deka submits that the judgment under review cannot be faulted with. He, however, submits that RSA No.194/2004 came to be allowed only on the ground that the challenge made in Title Suit No.75/1994 to the sale deeds executed in favour of the plaintiffs of Title Suit No.10/1994 was held to be barred by limitation, without independently deciding, as to whether the plaintiffs of Title Suit No.10/1994 had established their case. He pointedly draws the attention of the Court to paragraph 51 of the judgment to buttress his point. He submits that the law of limitation does not apply to a plea taken in defence by defendant even though that defence as a claim made by him may not be enforceable in Court being barred by limitation. What is sought to be articulated by him is that the plea taken by the plaintiffs of Title Suit No.75/1994 can validly be taken by way of defence in Title Suit No.10/1994. This aspect of the matter was not at all considered by this Court. Therefore, there is error apparent on the face of the record, he contends. In support of his submission, Mr. Deka has placed reliance on the judgment of the Supreme Court in Shrimant Shamrao Suryavanshi Vs. Pralhad Bhairoba Suryavanshi, (2002) 3 SCC 676 . 8. He has further pointed out that though this Court had, in passing, observed that the plaintiffs of Title Suit No.10/1994 had proved the sale deeds in question, the question as to whether the sale deeds had been executed in violation of principles of Mahomedan Law was not gone into. 9. Mr. A.C. Sarma, learned Sr. counsel has submitted that there was no error apparent on the face of the record. An elaborate judgment was rendered by this Court and the review petitioners cannot argue the whole matter once again. He also submits that the scope of review is limited and the same has to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. It is submitted by him that review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. He also submits that the scope of review is limited and the same has to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. It is submitted by him that review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. According to him, there is no merit in this review petition and accordingly, the same is liable to be dismissed. In support of his submission, he has relied on Meerabhanja Vs. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Haridas Das Vs. Usha Rani Banik & others, (2006) 4 SCC 78 . 10. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 11. Paragraph 51 of the judgment under review reads as follows:- ".................. 51. The plaintiffs of Title Suit No.10/94 had proved the sale-deeds in question. As the challenge made in Title Suit No. 75/94 to the sale-deeds executed in favour of the plaintiffs of Title Suit No. 10/94 has been held to be barred by limitation, the judgment of the learned lower Appellate Court decreeing the suit of plaintiffs in Title Suit No.10/94 cannot be faulted. ...................." 12. It is a fundamental principle of law that the plaintiff has to prove his case. Burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until the Court arrives at such conclusion, it cannot proceed on the basis of weakness of the other party. 13. In Shrimant Shamrao Suryavanshi, it was held that Limitation Act does not extinguish a defence, but only bars the remedy. On the facts of that case, it was held that since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action. 14. 14. Thus, Limitation Act may take away the remedy of a plaintiff to enforce his right by bringing an action in a Court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim may be barred by limitation and cannot be enforced in a Court of law. 15. The ratio laid down in Meerabhanja and Haridas Das is that review of a judgment and order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason. 16. An error which has to be established by long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be called an error on the face of the record. On the principles enunciated on the power of review of a Court, as noticed herein above, when I advert to the facts of the present case, I find that there was an error apparent on the face of the record in that only on the ground that Title Suit No.75/1994 was held to be barred by limitation, Title Suit No.10/1994 was decreed. It was necessary for this Court to have considered as to whether the plaintiffs of Title Suit No.10/1994 had established their case and were entitled to a decree as prayed for on the basis of materials and evidence on record. The same was not done. 17. In view of the above discussion, the impugned judgment dated 29.07.2015 is set aside. 18. However, it is conceded by Mr. Deka that finding recorded in RSA No.193/2004 with regard to dismissal of Title Suit No.75/1994 on the ground of limitation shall not be reopened by the review petitioners. 19. Registry will list the appeals before the appropriate bench after 3(three) weeks. 20. 18. However, it is conceded by Mr. Deka that finding recorded in RSA No.193/2004 with regard to dismissal of Title Suit No.75/1994 on the ground of limitation shall not be reopened by the review petitioners. 19. Registry will list the appeals before the appropriate bench after 3(three) weeks. 20. Registry will call for the records, if the same had been sent back in the meantime.