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2018 DIGILAW 816 (ORI)

Abhaya Kumar Badjena v. State Of Orissa

2018-11-20

D.DASH

body2018
JUDGMENT D.Dash. J. - The petitioner-appellants, by filing this application under section 114 read with Order 47, Rule 1 of the Code of Civil Procedure, has prayed for review of the order dated 04.09.2015 passed by this Court in Regular Second Appeal No.340 of 2010. 2. Learned counsel for the petitioners-appellants submits that the order by which this Court has refused to admit the Second Appeal finding involvement of no such substantial question of law in the case, suffers from the vice of error apparent on the face of record. 3. He further submits that while going for searching out the substantial question of law, this Court has failed to appreciate the established position of law that the Civil Court can go beyond the settlement entry to find out as to who are the real title holders of the land in question. It is also submitted that the Court while appreciating the matter has not read the plaint as a whole and only picking out a sentence in isolation and other stray sentences as have been referred to by the learned counsel for the State has been swayed away to pass the order that the appeal does not merit admission. According to him, for non-consideration of the above aspects, there arises error apparent on the face of the record so as to review to the said order. 4. Learned counsel for the State submits all in favour of the order. According to him, the grounds taken in the petition as also urged by the learned counsel for the petitioner-appellants for review are untenable. 5. It is settled position of law that a review by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but it only lies when there appears errors apparent on the face of record. 6. In Parsion Devi vs. Sumitri Devi, (1997) 8 SCC 715 , the Apex Court after referring to Thungabhadra Industries Ltd. vs. Govt. of A.P., (1964) AIR SC 1372 , Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, (1979) 4 SCC 389 has held that under order 47 rule 1 of the Code, a judgment may be open to review, inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the court to exercise its power of review under order 47 rule 1 of the Code. In exercise of the jurisdiction under order 47 rule 1 of the Code, it is not permissible for an erroneous decision to be "reheard and corrected." It must be remembered that a review petition has a limited purpose and cannot be allowed to be "an appeal in disguise". 7. In case of Sasi (Dead) through L.Rs. Vrs. Aravindakshan Nair and Others, (2017) 4 SCC 692 , while stating the nature, scope and ambit of power to be exercised, the Apex Court has further stated that the error has to be self-evident and not those being found out by a process of reasoning. 8. Keeping in view the settled principles of law as aforesaid, now going to consider the submissions made, para-5 and 6 of the order which have the bearing are to be referred to. Given a careful reading to the order, it is seen that at para-5, the substantial questions of law as projected by the appellants for the purpose of admission of appeal have been clearly noted and in the next paragraph-6, the rival case has been examined with reference to the evidence on record and discussion of the same as has been made by the courts below for consideration as to whether those two substantial questions of law noted in para 5 do arise in the case in hand for being so answered upon hearing. 9. So far as issue no.2 in the suit is concerned, this Court has come to a conclusion that the properties having vested with the State free from all encumbrances as per the provision of the O.E.A. Act and no such right of the plaintiffs or their predecessors having been recognized by the State, further even in the settlement of the year 1973 which has prevailed over the earlier record of right, the findings recorded by the courts below on those scores have been found to be in order. 10. 10. Going to the next issue, upon detail discussion, it has been found that the findings recorded by the courts below on the score that the suit land is communal, recorded as 'Samsan' as kisam and Sarbasadharan has not been the outcome of perverse of appreciation of evidence and without being the alive to the settled law holding the field. 11. The decisions cited by the learned counsel for the petitionerappellants have been noted in the judgment and the same having been gone through, this Court has found that those do not come to the aid of the petitioner-appellants. 12. For all the aforesaid and keeping in view the settled position of law as discussed, this Court finds no such error apparent on the face of record so as to say that this review application merits acceptance. The RVWPET is accordingly dismissed. No order as to cost.