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2019 DIGILAW 2908 (MAD)

Girish Adiga v. Mahabaleshwara Adiga

2019-10-24

K.S.MUDAGAL

body2019
ORDER : K.S. Mudagal, J. 1. "Whether the judgment and decree passed by this Court in R.S.A. No. 626/2002 c/w R.S.A. No. 627/2002 on 25.06.2008 suffer error apparent on the face of the record causing injustice to the petitioner?" is the question involved in this case. 2. Petitioner filed the regular second appeals before this Court in R.S.A. No. 626/2002 and R.S.A. No. 627/2002 against the respondents. Petitioner and respondent Nos. 6 to 9 in R.S.A. No. 626/2002 and respondent Nos. 1 to 4 in R.S.A. No. 627/2002 are the legal heirs of Padmanabha Adiga. Respondent Nos. 1 to 5 in R.S.A. No. 626/2002 and respondent Nos. 5 to 9 in R.S.A. No. 627/2002 are the legal heirs of Koteshwara Adiga. Respondent Nos. 10 to 12 in R.S.A. No. 627/2002 were the tenants of the disputed properties. 3. The subject matter of the suit in O.S. No. 177/1988 in respect of which R.S.A. No. 626/2002 arose were the lands bearing survey No. 302/12 measuring 0.38 acres, survey No. 304/11 measuring 0.20 acres, survey No. 302/15 measuring 0.20 acres, survey No. 306/7 measuring 0.90 acres and survey No. 303/11 measuring 0.07 acres. 4. Padmanabha Adiga and Koteshwara Adiga were full brothers. In a partition between them under the registered partition deed dated 04.06.1958 along with other properties, the aforesaid lands were allotted to the share of Padmanabha Adiga. It was alleged that on 07.04.1984, Padmanabha Adiga and his sons entered into an agreement of sale in respect of the above mentioned lands for consideration of Rs. 18,000/- in favour of Koteshwara Adiga and put him in possession of the said properties. 5. On 04.04.1988, respondent Nos. 1 to 5 filed O.S. No. 177/1988 against the petitioner and respondent Nos. 6 to 9 for permanent injunction claiming that under the agreement of sale dated 07.04.1984 they were put into possession and defendants therein were obstructing their peaceful possession. 6. On 16.06.1988, petitioner filed O.S. No. 304/1988 against his brothers and the children of Koteshwara Adiga in respect of the subject matter of the alleged agreement of sale dated 07.04.1984 and other properties of Padmanabha Adiga claiming that they were the ancestral properties and he is entitled to 1/5th share in the properties. He denied the execution of agreement of sale set up by the heirs of Koteshwara Adiga or possession of defendant Nos. 1 to 5. He denied the execution of agreement of sale set up by the heirs of Koteshwara Adiga or possession of defendant Nos. 1 to 5. He further claimed that if at all any such agreement was executed that document was void as those properties were ancestral properties. 7. The trial Court consolidated both the suits, recorded common evidence in O.S. No. 304/1988. By the common judgment and decree dated 27.03.2000, the trial Court decreed O.S. No. 304/1988 in favour of the appellant and dismissed O.S. No. 177/1988. 8. Issue Nos. 1 and 2 in O.S. No. 304/1988 were: (i) Whether the plaintiff proves that the suit schedule properties are the joint family properties of plaintiff and defendant Nos. 1 to 4 and he is having 1/5th share in the suit properties as contended in the plaint? (ii) Whether defendant Nos. 5 to 9 prove that they have purchased the suit properties under the agreement of sale dated 07.04.1984 and they are in possession of the same?" Those issues in the said suit were held in favour of the appellant. The trial Court held that agreement of sale set up by the heirs of Koteshwara Adiga was not valid and does not bind the appellant. 9. Respondent Nos. 1 to 5 challenged the said judgment and decree before the Civil Judge (Senior Division), Kundapura in R.A. No.22/2000 and R.A. No.23/2000. The First Appellate Court on 30.03.2002 by common judgment and decree allowed both the appeals, dismissed O.S. No.304/1988 and decreed O.S. No. 177/1988 granting permanent injunction in favour of respondent Nos. 1 to 5. 10. Appellant challenged the said judgment and decree of the First Appellate Court before this Court in R.S.A. No. 626/2002 and R.S.A. No. 627/2002. R.S.A. No. 626/2002 pertains to O.S. No. 177/1988 and R.S.A. No. 627/2002 pertains to O.S. No. 304/1988. 11. This Court admitted the appeals for consideration of the following substantial questions of law and additional substantial question of law. 1. R.S.A. No. 626/2002 pertains to O.S. No. 177/1988 and R.S.A. No. 627/2002 pertains to O.S. No. 304/1988. 11. This Court admitted the appeals for consideration of the following substantial questions of law and additional substantial question of law. 1. Whether the lower appellate Court is justified in reversing the judgments and decrees passed by the trial Court by raising adverse inference against the appellants who are the defendants in the suit filed by the respondents and when there is absolutely no entries in the revenue record to show that the plaintiffs in the said suit are in possession of the suit schedule property and when admittedly the question regarding grant of occupancy right is pending before the Land Reforms Tribunal? 2. Whether the Court below could have relied upon Ex. D3, D4 and D13 in which the appellants are not parties? 3. Whether Ex. D2 could have been considered to be an agreement when admittedly all the parties who are named in the said agreement have not signed the said agreement? 4. Whether the Court below could have reversed the judgment and decree passed by the trial Court in the appeal filed by the appellants for partition and separate possession by only depending upon Ex. D2 agreement? Additional substantial question of law: Whether the plaintiffs in O.S. No. 177/1988 were entitled to maintain a suit for bare injunction seeking protection under Section 53A of the Transfer of Property Act ('the Act' for short) without seeking the relief of specific performance relating to such agreement under which the possession is sought to be protected? (Emphasis supplied) 12. This Court by common judgment dated 25.06.2008 dismissed both those appeals. The said judgment reveals that during the course of arguments, learned Counsel for respondent Nos. 1 to 5 produced copy of the partition deed dated 25.09.2000 said to have been entered into between the appellant and respondent Nos. 6 to 9 with a memo. The judgment further reveals that this Court received the document and held that O.S. No. 304/1988 was for partition and since the parties have partitioned the properties, cause of action to the suit got eroded and does not arise, therefore, R.S.A. No. 627/2002 which arises out of O.S. No. 304/1988 has become infructuous. 13. So far as R.S.A. No. 626/2002 referring to the same agreement, it was held that respondent Nos. 1 to 5 were in possession. 13. So far as R.S.A. No. 626/2002 referring to the same agreement, it was held that respondent Nos. 1 to 5 were in possession. It was further held that agreement of sale dated 07.04.1984 set up by respondent Nos. 2 to 5 was voidable, it is open for the appellant to file suit for possession and in case respondent Nos. 1 to 5 file a suit for specific performance to raise such defence. 14. Appellant filed the above review petition seeking review of the judgment on the ground that this Court committed apparent error in receiving the said partition deed and disposing his appeals without adjudication on Ex. D2. He contended that without giving opportunity to him to file objections to the memo for production of documents, the appeals were disposed of. He contended that disposing of the appeals without answering the substantial questions of law has caused injustice to him, therefore the judgment and decree in both the appeals require to be reviewed. 15. This Court vide order dated 30.03.2009 disposed of the review petition in the following terms: "2. In my view, even if the grounds point to the fact that there is error committed by this Court, the petitioner herein would have to avail the appropriate course open and would not fall within the parameters of review as provided. Hence, the petition is disposed of without any specific orders" (Emphasis supplied) 16. The appellant challenged the said order before the Hon'ble Supreme Court in Civil appeal No(s) 7252-7254 of 2011. In the meantime, respondent Nos. 1 to 5 filed O.S. No. 169/2009 against the appellant and respondent Nos. 6 to 9 before the Civil Judge (Junior Division), Kundapura for specific performance of agreement dated 07.04.1984. 17. The Hon'ble Supreme Court vide order dated 28.03.2019 permitted the trial Court to go on with the said suit, but directed not to pronounce the judgment till further orders in the above referred civil appeals. In Civil Appeal No(s) 7252-7254 of 2011, the Hon'ble Supreme Court remitted the review petition to this Court for fresh consideration on the points raised by the appellant. 18. The relevant para of the said order reads as follows: "................................................... The appellant filed a review petition wherein he has contended that the Second Appeal ought to have been decided on merits and should not have been dismissed as having become infructuous. 18. The relevant para of the said order reads as follows: "................................................... The appellant filed a review petition wherein he has contended that the Second Appeal ought to have been decided on merits and should not have been dismissed as having become infructuous. The High Court disposed of the review petition by holding that it was not maintainable even if the grounds raised by the appellants are accepted. On 31.7.2009, this Court issued notice in the above appeal to the respondents to show cause as to why the impugned orders passed in review petition shall not be set aside. Though, Mr. Rajesh Mahale, learned counsel for the respondent submitted before us that the Second appeal arising out of the suit for partition has in fact become infructuous in view of the partition between the plaintiff and the defendant Nos. 1-4, Mr. Shekhar Naphade, learned senior counsel appearing for the appellant stated that the agreement dated 7.4.1984 has intricate connection with issues arising out of the suit filed for partition. Without expressing any view on the merits of the matter, we remit the review petition to the High Court for fresh consideration of the points raised therein. The suit filed for specific performance of the agreement dated 7.4.1984 is pending before the Civil Court. By an order dated 24.10.2016, we permitted the trial of the suit to go on but not to pronounce judgment till further orders of this Court. As we are remitting the review to the High Court for fresh consideration, the trial of the suit will proceed and the pronouncement of the judgment shall be subject to further orders to be passed by the High Court. The parties are directed to appear before the High Court on 9.4.2019. The High Court is requested to dispose of the review expeditiously. The appeals are disposed of, accordingly. Pending application(s), if any, stand disposed of." (Emphasis supplied) 19. The parties are directed to appear before the High Court on 9.4.2019. The High Court is requested to dispose of the review expeditiously. The appeals are disposed of, accordingly. Pending application(s), if any, stand disposed of." (Emphasis supplied) 19. Reiterating the grounds of review petition Sri Varadaraj R. Havaldar, learned Counsel for the appellant/petitioner seeks review of the judgments on the following grounds: (i) While receiving the partition deed relied upon by the respondents this Court did not consider the provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908; (ii) No opportunity was given to the appellant to meet or explain the said document; & (iii) The effect of the judgment of the First Appellate Court or the proposed disposal of the appeal by this Court without answering the substantial questions of law was not considered by this Court and such course is error apparent on the face of the record and that led to miscarriage of justice to the appellant. 20. In support of his contentions, he relies upon the following judgments: 1. Moran Mar Basselios Chatholicos and another v. Most Rev. Mar Poulose Athanasius and others, AIR 1954 SC 526 2. Chairman and Managing Director, Central Bank of India and Ors. v. Central Bank of India SC/ST Employees Welfare Association and Ors., AIR 2016 SC 326 . 21. Per contra, Sri M.S. Narayana Rao, learned Counsel for respondent Nos. 1 to 5 opposes the review petition on the following grounds: (i) Since the partition deed was appellant's own document and unrefutable one, there was nothing wrong in this Court relying on the said document; (ii) The judgment in R.S.A. No. 626/2002 was rendered on merits. Therefore, even if according to the appellant, judgment in R.S.A. No. 627/2002 suffers any illegality, the judgment in R.S.A. No. 627/2002 still stands; & (iii) If the judgments suffer any legal flaw, the remedy available to the appellant is to challenge the same in appeals and he cannot seek appellate remedy in disguise of review petition. 22. In support of his contentions, he relied on the following judgments: 1. Lily Thomas vs. Union of India and others, AIR 2000 SC 1650 2. Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455 3. C.N. Rama chandra vs. State of Karnataka and others, AIR 1997 Karnataka 181 4. Naminath vs. Govind Rao, AIR 1960 Mysore 214 5. Col. Lily Thomas vs. Union of India and others, AIR 2000 SC 1650 2. Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455 3. C.N. Rama chandra vs. State of Karnataka and others, AIR 1997 Karnataka 181 4. Naminath vs. Govind Rao, AIR 1960 Mysore 214 5. Col. Avtar Singh Sekhon vs. Union of India and others, AIR 1980 SC 2041 6. M. Narayanappa vs. Hemavathi, ILR 1987 KAR 715 7. M/s. Thungabhadra Industries Ltd. vs. The Government of Andhra Pradesh, represented by the Deputy Commissioner of Commercial Taxes, Anantapur, AIR 1964 SC 1372 23. In Lily Thomas's case relied upon by learned Counsel for respondent Nos. 1 to 5, the Hon'ble Supreme Court held that review means act of looking, at something again with a view for correction or improvement. It was further held that though review cannot be treated as an appeal in disguise, but that statutory remedy cannot be denied in deserving cases. It was further held that if the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. It was further held that rectification of an order thus stems from the fundamental principle that justice is above all. Review is exercised to remove the error and not for disturbing finality. 24. The ratio in the judgments relied upon by learned Counsel for respondent Nos. 1 to 5 is that unless error apparent on the face of the record is found, review cannot be resorted to by way of an appeal in disguise. 25. In Moran Mar Basselios Chatholicos's case relied upon by the learned Counsel for the appellant, it was held that Court can review its own judgment, if there is mistake or error apparent on the face of the record or for any other sufficient reasons. It was held that to decide against the party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record. Ultimately review petition was allowed on the ground that matter was dealt with in a superficial or summary manner. 26. It was held that to decide against the party on matters which do not come within the issues on which the parties went to trial clearly amounts to an error apparent on the face of the record. Ultimately review petition was allowed on the ground that matter was dealt with in a superficial or summary manner. 26. In the light of the above ratio in the judgments relied, this Court has to see whether the judgments in R.S.A. No. 626/2002 and R.S.A. No. 627/2002 are outcome of the error apparent on the face of the record causing miscarriage of justice to the appellant. 27. The first question that arises for consideration is even assuming that the partition deed dated 25.09.2000 which was abruptly produced before this Court during the course of arguments in the above referred appeals was unrefutable, whether cause of action for partition suit got eroded. 28. It is clear from the pleading of O.S. No. 304/1988 that cause of action in the suit was not mere demand for partition. The contention was raised on validity of Ex. D2 agreement of sale set up by respondent Nos. 1 to 5. There were divergent findings by the Courts below. The trial Court held in favour of the appellant. The trial Court's judgment was passed on 27.03.2000. 29. Secondly, the said partition was allegedly effected pending the appeal before the First Appellate Court. Therefore, that was subject to the result of the said appeal. The appellant lost before the First Appellate Court. In light of that, Ex. D2 continued to operate/exist. The partition deed and Ex. D2 were interwoven. The partition under the partition deed relied upon by this Court and the rights of the parties there under could sustain only in case Ex. D2 lost its validity. Otherwise, Ex. D2 defeats the right of the sharer to whom the properties covered under that were allotted. Therefore, the appellant was before this Court in R.S.A. No. 627/2002. Under the circumstances, the disposal of the appeal in summary manner in the context of the partition deed dated 25.09.2000 without reference to Ex. D2 and to the eventuality of such summary disposal of appeal is an error apparent on the face of record. That has caused miscarriage of justice to the appellant. 30. Under the circumstances, the disposal of the appeal in summary manner in the context of the partition deed dated 25.09.2000 without reference to Ex. D2 and to the eventuality of such summary disposal of appeal is an error apparent on the face of record. That has caused miscarriage of justice to the appellant. 30. Thirdly once the second appeal under Section 100 of CPC admitted for consideration of some substantial questions of law, the Court has to decide the appeal on such questions, unless the appellant himself seeks withdrawal of the appeal or due to abatement of appeal etc. That cannot be disposed of in a summary manner. 31. Fourthly in R.A. No. 22/2000 and R.A. No. 23/2000 the parties had not gone for adjudication based on the partition deed dated 25.09.2000. The document itself states that preliminary decree is passed in their favour, therefore, they have entered into partition. While dismissing the appeal relying on that document the operation of Order XLI Rule 27 of Code of Civil Procedure, 1908 with reference to that document was also not considered. Substantial question of law Nos. 3 and 4 formulated for hearing in the appeals related to agreement of sale Ex. D2. 32. Whether possession of defendants was lawful was dependent on the validity of Ex. D2 which question remained unanswered in R.S.A. No. 627/2002. As common judgment was passed by the trial Court in favour of the appellant, R.S.A. No. 626/2002 and R.S.A. No. 627/2002 are inseparable. 33. Under such circumstances, disposal of R.S.A. No. 627/2002 in summary manner and consequential disposal of R.S.A. No. 626/2002 driving the appellant to file the suit for possession or taking appropriate defence in the suit for specific performance that may be filed by the agreement holders perpetuated the error apparent on the face of the record. The case is clearly covered by the judgments in Lily Thomas's case, and Moran Mar Basselios Chatholicos's case. Therefore, the review petition is allowed. Common judgment dated 25.06.2008 in R.S.A. No. 626/2002 and R.S.A. No. 627/2002 are hereby recalled and the said appeals are restored to the file for hearing on the substantial questions of law. Registry shall post the matters for final hearing.