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Karnamalai Konar Alias Karanthamalai Konar Vs. B. Venkateswaran and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ30
AppellantKarnamalai Konar Alias Karanthamalai Konar
RespondentB. Venkateswaran and anr.
Cases ReferredSushil Kumar Sen v. State of Bihar
Excerpt:
.....and asking for vacant possession. second defendant claimed that she has secured patta for the suit properties and being the owner of the properties she bad validly conveyed the properties under exhibit b-12. the trial court decreed the suit and the appeal filed by the first defendant was rejected and which was also confirmed by this court in s. counsel for petitioner, would further claim that there being an error on the face of the record, in that the lower appellate court had totally misunderstood the law in regard to the vesting of title in the state pursuant to the notification made under section 3(b) of the act xxvi of 1963 and of its failure to properly comprehend the scope of the order of the settlement officer made under exhibit b-9 dated 8th march, 1968 and the patta no...........a suit for declaration and possession and for past and future mesne profits in respect of the suit properties which consist of two items. first item is an extent of 7 cents of natham in r. s. no. 200 of 1974 and second item is an extent of 23 cents of punja lands in r. s. no. 150/1-a1. the present dispute is confined to the first item, which was purchased by one subramania sastri in a court-auction sale in o. s. no. 489 of 1900 as evidenced by exhibit b-13 and thereafter his son krishna-swami sastri became entitled to the properties. there is no dispute regarding the identity of the suit properties. krishnaswami sastri had two wives and second defendant is his second wife and through his first wife he had a son by name ramamurthi iyer and these two persons survived as the heirs of.....
Judgment:
ORDER

T. Sathiadev, J.

1. First defendant in the suit and who was the appellant in S. A. No. 964 of 1974 is the petitioner herein. First respondent herein, as plaintiff, filed a suit for declaration and possession and for past and future mesne profits in respect of the suit properties which consist of two items. First item is an extent of 7 cents of natham in R. S. No. 200 of 1974 and second item is an extent of 23 cents of punja lands in R. S. No. 150/1-A1. The present dispute is confined to the first item, which was purchased by one Subramania Sastri in a Court-auction sale in O. S. No. 489 of 1900 as evidenced by Exhibit B-13 and thereafter his son Krishna-swami Sastri became entitled to the properties. There is no dispute regarding the identity of the suit properties. Krishnaswami Sastri had two wives and second defendant is his second wife and through his first wife he had a son by name Ramamurthi Iyer and these two persons survived as the heirs of Krishnaswami Sastri. There was a partition between Ramamurthi Iyer and the second defendant under Exhibit A-2 dated 19th January, 1963 in which item No. 1 was allotted to Ramamurthi Iyer. It is the admitted case that when Krishnaswami Sastri was alive, first defendant's brother Alagappan took the properties on lease for locating a rice mill and a lease deed was executed on 23rd January, 1949, and he was paying the annual rent of Rs. 100 inclusive of the usufructs of the trees and in or about 1956 it was revised as Rs. 120 per annum. After Alagappan's death, first defendant continued to enjoy the benefits of the lease While so, on 11th May, 1969, the plaintiff purchased the property from Ramamurthi Iyer and immediately issued a notice Exhibit A-4 to the first defendant on 25th June, 1969, terminating the lease and asking for vacant possession. It is after receipt of the said notice, first defendant had purchased the property from the second defendant on 3rd July, 1969, under Exhibit B-12. Therefore, the suit was filed by plaintiff for the reliefs claimed therein.

2. First defendant claimed that he was unaware of the partition under Exhibit A-2 and that in regard to the properties after being leased to Alagappan in 1949, it is only the first defendant who has been continuously enjoying the properties as a lessee, and in respect of plantain trees and coconut trees he is the cultivating tenant and therefore he cannot be evicted. Regarding the first item, it being an inam land having been taken over under Tamil Nadu Act XXVI of 1963, a patta had been issued in favour of the second defendant under Section 15(4) of the Act and therefore plaintiff has no title to the property under Exhibit A-1, and hence the notice to quit is invalid. Second defendant claimed that she has secured patta for the suit properties and being the owner of the properties she bad validly conveyed the properties under Exhibit B-12. The trial Court decreed the suit and the appeal filed by the first defendant was rejected and which was also confirmed by this Court in S. A. No. 964 of 1974.

3. The present petition for review is filed on the ground that 'the learned Judge erred in holding that though the partition deed does not specifically include the property in question, it must be deemed to have been included by reference to the boundaries'. Mr. T.R. Srinivasan. counsel for petitioner, would further claim that there being an error on the face of the record, in that the lower Appellate Court had totally misunderstood the law in regard to the vesting of title in the State pursuant to the notification made under Section 3(b) of the Act XXVI of 1963 and of its failure to properly comprehend the scope of the order of the settlement officer made under Exhibit B-9 dated 8th March, 1968 and the patta No. 17 issued Exhibit, B-10, the judgment rendered by this Court on 8th November, 1977 requires to be reviewed, in support of this contention, he refers to the passage in the judgment of the lower Appellate Court to the following effect:

The inam lands got vested with the Government only for the limited purpose of classifying the lands as per Tharam and for converting them into ryotwari lands and for grant of patta. The possession of the properties and the legal title therein cannot be said to have got vested with the government even under Section 3(b) of the said Act. Therefore, it cannot be said that the legal title of the erstwhile Inamdar was completely extinguished.

Hence he contends that when this statement of law is erroneous, even though this aspect had not been dealt with in the judgment dated 8th November, 1977, it will be open to the review petitioner to claim that grounds having been taken in the second appeal, and not canvassed earlier, can now be argued by invoking Order 47, Rule 1 of the Code of Civil Procedure, on the ground that the judgment of the lower Appellate Court will form part of the records of the case, and, therefore such an error found on the face of the records can be-corrected even at this stage.

4. A Division Bench of this Court in Pakkiri Muhammed Rowther v. I. Swaminatha Mudaliar (1938) 1 M. L. J. 796 : : AIR1938Mad573 : 47 LW 474 : AIR1938 Mad 573 in dealing with the scope of review under Order 47 of the Code of Civil Procedure, has laid down that there are three stages for a review application : (1) ex parte stage when the Court may either reject the application at once or issue a rule calling upon the other side to show cause as to way review should not be granted; (2) after hearing the respondent, it may admit or reject it; (3) if it entertains the application, in the third stage it will hear the matter on merits which may ultimately result in a repetition of the former decree or may be varied by it and what is decided ultimately will be a fresh decree in the matter.

5. Already notice had been issued on the basis of the points taken by Mr. Srinivasan and the matter is now in the second stage. Mr. Swaminathan, counsel for respondent, contends that the onus is on the petitioner to establish any error on the face of the record which would necessitate going into the merits of the matter in great detail, and in reading the order already made if no error can be made out, merely because a particular point had not been canvassed assuming it to be so, or that the Courts below have misunderstood the law on one aspect, a Court cannot keep on re-writing its judgments. Though not the entire merits of the matter can be gone into at this stage, if the error is touched upon on the face of the record, even at this stage to a limited extent it would not be improbable to find out whether ultimately this Court would set aside the entire order or not.

6. Mr. T.R. Srinivasan in dealing with the scope of a review petition begins by referring to the decision rendered in Mt. Jamna Kuer v. Lal Bahadur and Ors. 1950 SCJ 117 : (19(sic)9) FCR 662 : AIR 1950 FC 131 in which it was held that:

Where there is an error apparent on the face of the record, whether the error occurred by reason of the counsel's mistake or it crept in by reason of an oversight on the part of the Court, is not a circumstance which can affect the exercise of jurisdiction of the Court to review its decision.

In that matter there was a mistake as to the items of property on which claim had been laid and it was found that some properties had been left out and hence, it was concluded that there was an error apparent on the face of the record. By referring to the decision in Natesa Naicker v. Sambanda Chettiar (1941) MLJ 390 : 5 LW 253: AIR 1941 Mad 918 he pleads that if by unfortunate oversight the Judge has gone palpably wrong, by the omission of those concerned to draw his attention to an established legal position, it may constitute a proper case of an error apparent on the face of the record. To contend that the error on the face of the record would not be confined only to law but also to facts, reliance is placed on the Division Bench decision in Murahari Rao and Ors. v. Balavanth Dikshit and Anr. (1923) ILR 46 Mad 955 : 18 LW 363 : 45 MLJ 309 : AIR 1924 Mad 98. That even if the error is regarding certain figures furnished to Court relating to the amount covered by Insurance Policies, if the counsel had failed to bring the terms of the policy to the notice of the Court and thereafter after realising the slip or omission, if a review petition is filed, the Court would not hesitate to give relief has been so held in Kodaikanal Motor Union ( P) Ltd. by the Managing Director v. Srinivasa Roadways, Madurai and Ors. (1978) 2 MLJ 273 : ((sic)79) A. C. J. 397 : 91 LW 509 : AIR 1979 Mad 14. Thereafter he refers to the decision in Benoy Krishna Rohatgi and Ors. v. Surajbali Misra and Anr. : AIR1963Cal100 content and contends that not only in respect of discovery of new and important matters, review can be asked for, even if it is made out that there is some mistake or error in evidence and such mistake is apparent on any document other than the judgment, but constituting the records of the suit, then a review cannot be thrown out. In Ram Surat and Ors. v. Shitla Prasad : AIR1978All270 it was held that where an important piece of evidence showing the existence of the right which is involved in the suit was missed to be considered by Court, a review petition is maintainable. Therefore, the contention of Mr. T.R. Srinivasan is to the effect that when the lower Appellate Court had misunderstood the law, as extracted above, and when it forms part of the record, this is an eminently fit matter which calls for the judgment to be reviewed. He also takes up the further stand that both in the trial Court and in the lower Appellate Court, the rights acquired under patta No. 17 under Exhibit B-10 pursuant to the order made under Exhibit B-9 had been put before the Court for consideration. But, because of a mis-appreciation of law, the Courts below adjudicated upon the rights of parties as if the title to the properties had not vested with Government pursuant to the notification made under Section 3(b) of the Act XXVI of 1963. In the memorandum of grounds in the second appeal in ground numbers 3 and 4 the error committed by the lower Appellate Court on the legal proposition had been taken. He is not for contending that in spite of the point having been canvassed, the learned Judge had not dealt with it in the judgment but he would plead that an omission to argue a vital point of this nature would be a relevant factor for review petition to be entertained. It is for this purpose he had relied upon the decisions above referred to, for contending that even a mistake by counsel would enable a review petitioner to have the matter heard once over.

7. Mr. Swaminathan would stoutly oppose these contentions by not only referring to Pakkiri Muhammad Rowther v. I. Swaminatha Mudaliar (1938) 1 M. L. J. 796 : : AIR1938Mad573 : 47 L W 474 already referred to but also to the decision rendered in Soosai Anthony D' Costa Nicholas D' Costa v. Francis Roche Anthony Kurush Roche (died and 19 Ors.) (1962) 1 M. L. J. 376 : : AIR1962Mad304 : ILR (1962) Mad 804 : 75 LW 2 4 : AIR 1962 Mad 304 wherein it was held that assuming that the counsel who argued the appeal earlier had specific instructions from his client to argue a certain point, and he failed to argue the point designedly or by inadvertence, it cannot by itself, without anything more, be enough to warrant a review of the judgment. In dealing with the authorities placed before the Court, it was held therein that it will be wholly unnecessary to refer to any of them because, each case has to be decided on the particular facts and no principle had been laid down firmly on this aspect as to apply to the case before it. This decision was relied upon in Bhagwati Singh v. Deputy Director of Consolidation and Anr. : AIR1977All163 to hold that

Once a case has been fully argued on merits and decided on merits, no application for review lies on the ground that the case should have been argued differently.

Yet another decision relied upon is the one in Ram Murti and Ors. v. Bank of Patiala AIR 1951 Pepsu. 54 wherein it was held, merely because a particular point is silent in the previous order or judgment, it cannot be a ground for review for holding that there is a mistake or error apparent on the face of the record. As already stated, he has contended that incidentally, to a very limited extent, it would be necessary to find out whether the error which is sought to be made out is an error at all, and even so, whether it is apparent on the face of the records.

8. I will now take up the points taken by Mr. T.R. Srinivasan, under two heads. The first one is whether there is an error apparent on the face of the records which call for interference. He claims that when a patta was issued under Exhibit B-10 by a settlement officer in favour of second defendant, there is no scope for a Court to decide title because, it had already vested with Government pursuant to a notification under Section 3(b) of the Act XXVI of 1963. So far as the trial Court is concerned in paragraph 9, it has considered the relevant decisions on this aspect and held that it is a well-settled proposition of law that patta is not a document of title and that is only a bill for collection of kist by the Government. It is the lower Appellate Court which has committed the error in holding that neither title nor possession got vested in Government. If on such an erroneous approach the entire matter had been decided, undoubtedly the learned Judge, while disposing of the second appeal, would have interfered with the findings of the Court below. But what has transpired is, independent of this aspect, the Courts below have first gone into the question of finding out whether a civil Court has jurisdiction to entertain the kind of suit that has been filed, and by relying upon the two decisions of this Court in Abdul Kadir Rowther v. The State of Madras (1972) 85 L W 287 and Velayudham Pillai v. Sandhosa Nadar and Ors. (1973) 86 LW 534 as to the issue of patta by the settlement officer, held the civil Court can decide inter se claims between the parties. This proposition is indisputable and in fact in the lower Appellate Court the counsel who appeared for the petitioner herein did not, for a moment, dispute it. The finding about the relative merits of title between plaintiff and the second defendant had been disposed of on other factors in evidence, and the decision that has been arrived at, would not exclude in any sense the right that has been acquired by the State on the notification issued under Section 3(b) of the Act. As between the contesting parties, it will be open to a civil Court to decide to what extent subject to the provisions of the Act, they can claim interest in the property. It is in this context Mr. Swaminathan refers to the decision in Rajanarayana Perumal Temple, Melaiyur, Sirkali Taluk by its Executive Officer v. Rathinam Pillai (1979) 1 M. L. J. 159 : : (1979)1MLJ159 wherein, dealing with the scope of the Act XXX of 1963 it was held that

Question of title was purely within the jurisdiction of the civil Court and not within the jurisdiction of the Tribunal or Special Appellate Tribunal under Act XXX of 1963.

He quite rightly relies upon the Division Bench decision in K. Somasundaram Pillai and Ors. v. P. Dorairaj and Ors. (1979) 1 M. L. J. 443 arising under Act XXVI of 1963, wherein it was held that a patta issued under Section 15 of the Act would stand altogether on a different place and it will not be governed by the notification under Section 3, and the person who has erected the building and owned it immediately before the notified date would be the person in whom it would vest. In this case, it is admitted that 'the rice mill structure was put up by Alagappan after he has taken lease of the suit item' and in the partition this property was allotted to the share of Ramamurthi and not to the second defendant, and even in the proceedings, she had not examined herself to support her title or the sale effected under Exhibit B-12, and it is the first defendant who after receipt of notice about purchase made by the plaintiff, having taken the sale deed subsequently with full knowledge of the sale under Exhibit A-1 claims that the patta issued under Exhibit B-10 to the second defendant would defeat the rights of the plaintiff in the suit.

9. At this stage of the matter, except to refer to the erroneous understanding of the proposition of law by the lower Appellate Court and the order of the settlement officer in issuing the patta and of the manner in which the Courts below have decreed the claim of the plaintiff, the details of the evidence tendered are not adverted to by both the counsel. The error apparent on the face of the judgment of the lower Appellate Court as extracted above, has not in any manner affected the conclusion which is based on other aspects and when the error apparent on the face of the order has not played any vital role as to result in an erroneous conclusion, it is of no consequence in this case.

9. The jurisdiction of a civil Court to decide inter se disputes between the parties in spite of issue of patta by the settlement officer, having been clearly laid down by the two decisions of this Court above referred to, there is no error apparent on the face of the order of the Courts below, on the understanding of this proposition of law. Hence, on the first aspect, mere existence of a statement of law which is obviously erroneous, would not be a ground for entertaining the review petition, when it is amply made out that it has not played any vital role in the disposal of the matter.

10. On the second aspect that in spite of grounds 3 and 4 having been taken in the memorandum of appeal, and that it had not been put forth before the Court, can it result in the judgment being reviewed? I have already referred to the authorities relied upon by Mr. T.R. Srinivasan on this aspect wherein no doubt for omission committed by a counsel to bring a very relevant factor before Court, a review petition can be entertained. But that does not mean that in every case where, though grounds have been taken, and which may even be inconsistent, if at the time of the hearing of the case the counsel had designedly been under the impression that by canvassing some of the points it would not advance the interests of his client and thereby omits to argue the point, but after the decision is rendered, if he is to come before Court for an opportunity to argue the points which have not been earlier argued, it would frustrate the object of Courts in rendering binding and final verdict in any case. As held by the Supreme Court in Sushil Kumar Sen v. State of Bihar : [1975]3SCR942 whenever a review application is entertained, it would result in a fresh decree being passed, whether it modifies, reverses or confirms a decree originally passed. A fruitless effort of this nature cannot be allowed unless it be established that here was an omission made by the counsel, and what was omitted to be argued would result in injustice being rendered to the parties. Presently, it will be seen that the grounds 3 and 4 taken in second appeal only relate to the wrong understanding of the law by the lower Appellate Court alone, about what transpires when a notification is made under Section 3(b) of the Act and this by itself, had not in any manner changed the conclusions already arrived at on the aspect of inter se rights between the plaintiff and the second defendant and through her the first defendant's rights over the suit properties. An erroneous understanding of the law by itself, would not result in considered decisions being set aside by a review order, even assuming that the counsel had no placed this point when the appeal was disposed of, unless, as already stated it had in any manner affected the decision in the matter.

For all these reasons above stated, there being no justification to entertain this petition, it is dismissed without costs.


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