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2021 DIGILAW 225 (MP)

Sunita Yadav v. Kamal Das Bairagi

2021-02-24

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. 1. Review petition under Order 47 Rule 1 read with Section 151 of CPC is being filed seeking review of order dated 12.03.2020 passed in S.A. No. 401/2014. The present petitioner/appellant has filed Second Appeal bearing No. 401/2014 before the Hon'ble Court against the judgment and decree passed by the Court below, whereby the suit of the petitioner for declaration and perpetual injunction has been dismissed which was affirmed by the learned lower appellate Court. The Hon'ble Court vide its order dated 12.03.2020 has dismissed the appeal filed by the petitioner on the ground that petitioner could not demonstrate the source of title of the property nor any documents in support his contentions are being filed by the plaintiff to show that they are title holder of the property in question. During the pendency of the appeal the petitioner/plaintiff/appellant has purchased the property in disputed by way of registered sale deed on 09.09.2016 from the earlier owner namely Shravan @ Sarvan Singh Sikh. 2. In the instant case the appeal filed by the appellant on the ground that the respondent has admitted the facts and averments mentioned in the memo of plaints but the trial Court has failed to consider that admissions made by the defendant in his written statement moreso the original sale deed was lost by the vendor, therefore, Ikrar Nama i.e. Ex. P/16 has been executed between the parties. The suit filed by the plaintiff in respect of land bearing No. 639 Min Rakva 0.300 hectare in which 0.009 hectare i.e. 40 x 25 ft. plot situated at Kolua Road Ashoknagar, which was subsequently merged in Survey No. 637/2/Min-1. Now the petitioner is having registered sale deed in her favour, therefore, present review petition is being filed. It is submitted that the Court has dismissed the appeal of the petitioner merely on the ground that petitioner could not produce registered sale deed in her favour but during pendency of appeal registered sale deed has been executed in favour of the petitioner. It is pertinent to mention here that earlier sale deed executed has been lost by the stamp vendor, therefore, the petitioner could not produce the same, hence, the present petition deserves to be allowed in the interest of justice. 3. It is pertinent to mention here that earlier sale deed executed has been lost by the stamp vendor, therefore, the petitioner could not produce the same, hence, the present petition deserves to be allowed in the interest of justice. 3. Learned counsel for the petitioner has pointed out that the petitioner has subsequently executed a sale deed during the pendency of the appeal. Therefore only seeks a direction that the liberty be extended to him to file the civil suit before the trial Court and the trial Court be directed to consider and decide the civil suit on merits. 4. Heard learned counsel for the petitioner and perused the record. 5. Petitioner counsel could not point out any glaring mistake apparent on the fact of record but has confined his arguments to the extent that liberty be extended to him to file a new civil suit. 6. Considering the fact that the petitioner is a subsequent purchaser. This cannot be a ground for review The law with respect to entertaining the review petition is settled in the case S. Bagirathi Ammal vs. Palani Roman Catholic Mission; (2009) 10 SCC 464 wherein the Hon'ble Supreme Court has held as under:- "12. An error contemplated must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and it must be one which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the appellant, in such circumstances, the review will lie." 7. Further in the case of State of West Bengal and Ors. v. Kamal Sengupta and Anr.; (2008) 8 SCC 612 wherein the Hon'ble Supreme Court has held as under :- "22. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. The term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC." 8. Further in the case of Lily Thomas Vs. Union of India and others, AIR 2000 SC 1650 wherein the Hon'ble Supreme Court has held as under:- "55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment." 9. Further in the case of Dr. Subramanian Swamy Vs. State of Tamil Nadu and Others in Civil Appeal No. 10620 of 2013, ( 2014 (5) SCC 75 ) wherein the Hon'ble Supreme Court has held as under: "40. Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. Edappakath Ayissa Bi & Ors., AIR 1949 PC 302 ; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 )." 10. The grounds of review are very limited. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. (Vide: Shah Shivraj Gopalji v. Edappakath Ayissa Bi & Ors., AIR 1949 PC 302 ; and Mohanlal Goenka v. Benoy Kishna Mukherjee & Ors., AIR 1953 SC 65 )." 10. The grounds of review are very limited. The aforesaid grounds raised by the petitioner does not fall under the parameter to enable this Court to entertain the review petition. No grounds for review are made out. Accordingly, the review petition is dismissed. 11. E-copy/certified copy as per the rules/directions.