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Kariya Mahto Kurmi Vs. Ram Sarup and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in37Ind.Cas.399
AppellantKariya Mahto Kurmi
RespondentRam Sarup and anr.
Excerpt:
civil procedure code (act v of 1908), order xlvii, rule 4 - review--production of new document--proof, necessity of. - - the present position, therefore, is that kariya has been defeated in both suits......first and ram sarup and bhagwat prasad won it. they got a decree on the 10th september 1913.5. kariya appealed and won the appeal, with the result that by its order of the 25th february 1914 the appellate court directed that the suit no. 526 of 1913 should be dismissed.6. meantime the suit in which kariya was plaintiff was still pending. when he won his appeal he produced a copy of the appellate judgment before the munsif and got a decree in his case no. 622 of 1913.7. the opposite pirty filed an appeal and they also filed an application for review of the appellate judgment dated the 25th february 1914. both of these came before another judge than the one who had tried the appeal. he allowed the application for review and reversed the appellate order passed by his predecessor and.....
Judgment:

Lindsay, J.

1. These appeals are connected and may be disposed of by the same judgment. The facts are as follows:

2. The parties are co-sharers in the village of Padri Mahdeo Buzurg. The appellant here, Kariya Mahto, is the owner of a plot No. 627/3 in this village and adjacent to it is another plot No. 627/4, the property of the respondents Ram Sarup and Bhagwat Prasad.

3. The parties are at variance regarding the boundary line between these two plots and in the year 1913 they brought cross-suits against each other.

4. In one suit No. 526 of 1913, Ram Sarup and Bhagwat Prasad were the plaintiffs. Their case was that Kariya had encroached upon a portion of their plot No. 627/4 and included it in his plot No. 627/3. In the other suit No. 622 of 1913, Kariya was the plaintiff and his story was that Ram Sarup and Bhagwat Prasad had taken away a portion of his plot No. 627/3 and included it in their plot No. 627/4.

4. Suit No. 526 of 1913 was tried first and Ram Sarup and Bhagwat Prasad won it. They got a decree on the 10th September 1913.

5. Kariya appealed and won the appeal, with the result that by its order of the 25th February 1914 the Appellate Court directed that the suit No. 526 of 1913 should be dismissed.

6. Meantime the suit in which Kariya was plaintiff was still pending. When he won his appeal he produced a copy of the appellate judgment before the Munsif and got a decree in his case No. 622 of 1913.

7. The opposite pirty filed an appeal and they also filed an application for review of the appellate judgment dated the 25th February 1914. Both of these came before another Judge than the one who had tried the appeal. He allowed the application for review and reversed the appellate order passed by his predecessor and acting upon the additional evidence which he permitted to be produced before him, he decreed the appeal or Ram Sarup and Bhagwat Prasad. The present position, therefore, is that Kariya has been defeated in both suits.

8. He has filed two appeals here No. 1809 of 1914 is directed against the order allowing review of judgment, No. 94 of 1915 is against the appellate order allowing the appeal of Ram Sarup and Bhagwat Prasad by which Kariya's suit (No. 622 of 1913) has been dismissed.

9. In the first of these appeals it is argued that the Court below improperly admitted the application for review and, in my opinion, the argument must prevail. It is only necessary to refer to the terms of the application for review dated the 31st March 1914 to show that there was no case for review at all. The following grounds were set out in the application: (1) that the Judge who had decided the appeal by his order of the 25th February 1914 had paid no attention to a certain document, viz., a list of plots prepared at partition, (2) that the map prepared by the Commissioner was correct and proved the applicants' case, they said they would file a copy of it before the Appellate Court, (3) that this documentary evidence was not before the Court at the time the appeal was heard and (4) that the partition map which had been relied upon was wrongly coloured and that the applicants had a correct map which they would put in.

10. This latter map, said to have been prepared at a later partition, was received by the Judge and upon the strength of it he has decided both cases in favour of Bam Sarup and Bhagwat Prasad. In his judgment allowing the review he remarks that neither the parties nor his predecessor-in-office had been aware that the earlier partition map relied on in the previous judgment had been superseded by the later map produced before him now by Ram Sarup and Bhagwat Prasad. It was for the applicants for review to show that this later map, which they persuaded the Court to accept, was not available at the time when the appeal was first tried, or to satisfy the Court that if it was available its non-production was not due to any lack of diligence on their part, and under Rule 4 of Order XLVII, they were bound to furnish strict proof of any allegations made to this effect. I have not been referred to any proof at all of the allegations contained in the petition for review and so far as I can see, the lower Appellate Court never called for any but was content to act upon the application as it stood. The learned Additional Judge was not entitled to act in this way and his order allowing the petition for review must be discharged.

11. It also follows that Appeal No. 91 of 1915 must be allowed, as the Judge's order appealed against is based upon the documentary evidence which he improperly admitted in the proceedings in review. The result is that both these appeals are allowed with costs.


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