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Musammat Mariam-un-nissa Bibi Vs. Babu Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in73Ind.Cas.1016
AppellantMusammat Mariam-un-nissa Bibi
RespondentBabu Ram and ors.
Cases ReferredNandkishore v. Aliwar Hussain
Excerpt:
civil procedure code (act v of 1908), order xlvii, rule 1 - second appeal, disposal of--discovery of fresh evidence--review. - - 2. the application made before us sets out, that certain documentary evidence has been discovered since, which if entertained would prove that the plaintiff-appellant, mariam-un-nissa, had a good title to the property in dispute. the courts below found that the plaintiff had failed to give satisfactory proof that the record in question has been wrongly framed......just referred. it has been argued before us that the matter before this court is not a question of fact but a question of law. we cannot agree with this. the case of the plaintiff all through was that certain revenue records had been wrongly prepared and that if the records had been prepared in a proper manner her title to the property would have been established. the courts below found that the plaintiff had failed to give satisfactory proof that the record in question has been wrongly framed. the documentary evidence which has now been discovered is put forward for the purpose of showing that the record was, as a matter of fact, incorrectly framed and to induce us, therefore, to decide in favour of the plaintiff on that basis.6. the question whether any particular, record has been.....
Judgment:

1. This is an application for review of judgment. The judgment sought to be reviewed is a judgment passed on the 19th May 1922; dismissing, under Order XXI Rule 11, the appeal of one Mariam-un-nissa. The appeal was a second appeal.

2. The application made before us sets out, that certain documentary evidence has been discovered since, which if entertained would prove that the plaintiff-appellant, Mariam-un-nissa, had a good title to the property in dispute.

3. The application for review has been opposed on the ground that it is not competent to this Court to entertain such an application and various authorities have been cited before us. We need only refer to an authority of our own Court in Nandkishore v. Aliwar Hussain 4 Ind. Cas. 860 : 32 A. 71 : 6 A.L.J. 979.

4. It was held there following two other rulings that the High Court cannot in a second appeal entertain an application for a review of judgment based on the ground that since the disposal of the appeal documentary evidence has been discovered which, if sufficiently proved, would have led the Court below to come to a different finding although had such evidence been discovered before the disposal of the appeal the Court might have allowed the appellant to withdraw the appeal with a view to apply to ,the lower Appellate. Court for a review of judgment on the ground of discovery of fresh evidence.

5. We have already adverted to the fact that the second appeal has already been disposed of by this Court. We can see no ground upon which the present case can be distinguished from the case to which we have just referred. It has been argued before us that the matter before this Court is not a question of fact but a question of law. We cannot agree with this. The case of the plaintiff all through was that certain Revenue Records had been wrongly prepared and that if the records had been prepared in a proper manner her title to the property would have been established. The Courts below found that the plaintiff had failed to give satisfactory proof that the record in question has been wrongly framed. The documentary evidence which has now been discovered is put forward for the purpose of showing that the record was, as a matter of fact, incorrectly framed and to induce us, therefore, to decide in favour of the plaintiff on that basis.

6. The question whether any particular, record has been rightly or wrongly framed is certainly a question of fact and not a question of law. Following the ruling of tins Court, to which we have referred above, we hold that this application is not entertainable and we, therefore, dismiss it with costs including in this Court fees on the higher scale.

7. Let these papers be returned to the Collector of Moradabad.


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