1. This is an application for review of our judgment summarily dismissing the applicant's appeal herein under the Letters Patent. The applicant was the original plaintiff in the suit and had brought the suit against the respondents claiming certain rights over a passage or lane which he alleged was a public street. The trial Court held against his contentions and dismissed the suit. The appellate Court reversed the judgment of the trial Court and decreed the suit in favour of the applicant. From this decision of the appellate Court the respondents preferred a second appeal to this Court. That appeal was heard by Mr. Justice Madgavkar who reversed the judgment of the lower appellate Court and restored that of the trial Court. The applicant obtained leave from Mr. Justice Madgavkar to prefer an appeal to this Court under the Letters Patent. On the appeal coming on before us for admission, after we had heard the learned pleader for the applicant we summarily dismissed the appeal.
2. The applicant has set out several grounds in his petition for review. He has now abandoned all those grounds except one which is that there is a mistake or error apparent on the face of the record and there is otherwise sufficient reason for us to review our judgment. The mistake or error relied on is said to be apparent on the judgment of Mr. Justice Madgavkar. It has been contended before us that in contravention of the provisions of Sections 100 and 101 of the Civil Procedure Code, Mr. Justice Madgavkar has reversed the lower appellate Court's judgment purely on a question of fact and hence the judgment was without jurisdiction. This ground was taken before us in the grounds of appeal under the Letters Patent. In summarily dismissing the appeal we gave no reasons for our judgment. Under the ruling of the Privy Council in Chhajju Ram v. Neki (1922) L.R. 49 I. S 144, 34 Bom. L.R. 1238, Order XLVII, Rule 1, of the Civil Procedure Code, under which this application for review is made to us, must be read as in itself definitive of the limits within which review of a decree or order is now permitted, and the words 'any other sufficient reason ' means a reason sufficient on grounds at least analogous to those specified in the rule. Their Lordships of the Privy Council have hold that a Court hearing an application for the review of a decree on appeal has no jurisdiction to order a review because it is of opinion that a different conclusion of law should have been arrived at.
3. Order XLVII, Rule 1, states :-
Any person considering himself aggrieved...
(b) by a decree or order from which no appeal is allowed...
(c)...and who,...on account; of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
4. Mr. Munshi on behalf of the applicant has contended that the word ' record' appearing in Order XLVII, Rule 1, should not be restricted to our judgment in the case but its meaning should be extended so as to include the grounds of appeal and the judgment which was the subject-matter of the appeal before us. Even accepting such a view as correct, it would not be open to us under the ruling in Chhajju Ram v. Nehi to grant a review if as the result of the arguments we have now heard we were converted to the opinion that a different conclusion of law should have been arrived at at the time we originally heard the appeal. There does not, however, appear to be any error of law on the face of the judgment of Mr. Justice Madgavkar. Mr. Justice Madgavkar has stated in his judgment:-
But the question of public street or otherwise must be decided not by understanding alone but in the light of its definition under Section 3 (13) of the Bombay District Municipal Act, III of 1901, Clauses (a), (b), (c).
5. He has further stated in his judgment:-
Under these circumstances, the conduct as between 1906 and 1918 on the one hand and in 1922 on the other cannot help either party. I agree that in law the trial Court was right in holding that the vanda was not proved to be a public street.
6. From the judgment of the lower appellate Court it is clear that the finding of fact was arrived at by that Court not by a consideration of the oral evidence but on certain inferences the Court deduced from the documents before it. It was open to Mr. Justice Madgavkar to deduce inferences from those documents as he has done and come to a contrary decision. Construction of documents is a matter of law which this Court in second appeal can properly go into.
7. I am, therefore, of opinion that this application fails and should be disallowed with costs.
8. This is an application for review of the judgment in Letters Patent Appeal No. 10 of 1929 confirming the decision of Mr. Justice Madgavkar in Second Appeal No. 694 of 1926. The application is based on two grounds, first, on the discovery of new and important evidence which could not have been produced before the lower Courts, and, secondly, on the ground that there is a mistake or error apparent on the face of the record.
9. With regard to the first point a preliminary objection is raised on behalf of the opponent that; additional evidence cannot be adduced in second appeal. That contention is supported by the decision in Hari Ganu v. Hari Ganu (1928) 31 Bom. L.R. 436, where it was held that an application for review cannot be entertained on the ground of fresh evidence in second appeal. The applicant's counsel, however, gave up the point with regard to the discovery of additional evidence, and restricted his argument only to the second ground that there was a mistake or error apparent on the face of the record.
10. In the Letters Patent appeal against the judgment of Mr. Justice Madgavkar no judgment was delivered by this Court. Therefore, no mistake or error apparent on the face of the judgment of this Court could be pointed out by the learned counsel, but it was argued that the words ' on the face of the record ' would cover not only the judgment of the Division Bench of this Court but also the judgment of the single Judge appealed against. It is difficult to accept the argument. Assuming, however, that the contention is correct, we find that; Madgavkar J. in second appeal came to a different conclusion of fact not merely on the appreciation of evidence, but he drew an inference from the proved facts and circumstances in the case after taking into consideration the definition of ' public street ' in the Bombay District Municipal Act. It cannot, therefore, be said that the learned Judge in second appeal arrived at a different finding of fact merely on appreciation of evidence and thereby infringed the rule laid down by the Privy Council in the cases of Mussummat Durga Choudhrain v. Jawahir Singh Ghoudhri (1890) L.R. 17 I. S 133; Raja of Pittapur v. Secretary of State (1929) 31 Bom. L.R. 8S6.; and Ramji Patel v. Kishoresingh : (1929)31BOMLR883 . We think, therefore, that even assuming that the word 'record' is wide enough to include the judgment appealed against, it has not been shown that there is any mistake or error apparent on the face of the record, Even assuming that the judgment of Madgavkar J. is wrong on a point of law, that is not a ground for review according to the decision in Chhajju Ram v. Neki , where it was held that a Court hearing an application for review has no jurisdiction to order a review because it is of opinion that a different conclusion of law should have been arrived at. We, think that there is no ground for allowing the review application.
11. We would, therefore, discharge the rule with costs.