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Muddlapur Morari Rao and ors. Vs. Balwanth Dikshit and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in76Ind.Cas.342
AppellantMuddlapur Morari Rao and ors.
RespondentBalwanth Dikshit and anr.
Cases Referred and Ellem v. Basheer
Excerpt:
civil procedure code (act v 0f 1908), order xlvii, rule 1 - error of law--review. - - there are one or two discrepancies in the intervening links of the geneolgaical trees, but trey clearly shew that relationship between the families, and there is a remark in exhibit l-1 showing that plaintiff's grandfather held an inam in dombala (bombay presidency). this explains their house name of dambala, the house of the other branch being ittigi. we are of opinion that each case must be judged by it self, and that where the error of law is such that it is clearly apparent on a perusal of the record, there is ground for granting a review......conclusions that plaintiffs have satisfactorily proved their relationship. pedigrees filed by gundu bhat's father, giri bhat, (exhibits land v) in 186o at the time of the inam enquiry show that the plaintiff's grandfather and giri bhat were descended from a common ancestor venkana bhat. there are one or two discrepancies in the intervening links of the geneolgaical trees, but trey clearly shew that relationship between the families, and there is a remark in exhibit l-1 showing that plaintiff's grandfather held an inam in dombala (bombay presidency). this explains their house name of dambala, the house of the other branch being ittigi. there is also the oral evidence of three witnesses (p.ws. nos. 2, 3 and 9), who are the executors of gundu bhat's will, that gundu bhat admitted the.....
Judgment:

1. This suit is a dispute regarding the properties of one Gundu Bhat, who died leaving a miner daughter who survived him only a few days. Plaintiffs claim to be the nearest agnates of Gundu Brat while defendants are admittedly his sister's sons. The District Judge found plaintiffs' case to be true, but held that the sister's sons were the preferential heirs. Plaintiffs applied for review of judgment on the ground that it has been held in Kamala Bai v. Bhagirathi Bai : (1912)23MLJ518 that the agnates are to be preferred to the sister's Sons. This ruling had not been brought to the Judge's notice at the original trial and he accordingly revised this original order and gave a decree to pla:ntiffs. Defendants appeal both on the merits and on the ground that it was incompetent fir the District judge to grant a review, as none of the grounds mentioned in Order XLVII, Rule I, Civil Procedure Code is present in this case.

2. On the merits we entirely agree with the District Judge's conclusions that plaintiffs have satisfactorily proved their relationship. Pedigrees filed by Gundu Bhat's father, Giri Bhat, (Exhibits Land V) in 186o at the time of the inam enquiry show that the plaintiff's grandfather and Giri Bhat were descended from a common ancestor Venkana Bhat. There are one or two discrepancies in the intervening links of the geneolgaical trees, but trey clearly shew that relationship between the families, and there is a remark in Exhibit L-1 showing that plaintiff's grandfather held an inam in Dombala (Bombay Presidency). This explains their house name of Dambala, the house of the other branch being Ittigi. There is also the oral evidence of three witnesses (P.Ws. Nos. 2, 3 and 9), who are the executors of Gundu Bhat's Will, that Gundu Bhat admitted the relationship and even entertained the idea of adopting one of the plaintiffs. These three men were persons enjoying Gundu Bhat's confidence and no reason has been shown for disbelieving their evidence.

3. Defendants content themselves with a denial of the relation ship but have no particular case of their own, nor can they point to any specific defect in plaintiffs' claim to relationship. We find that plaintiffs are Gundu Bhat's agnates and are entitled to succeed in preference to defendants.

4. It next remains to consider the validity of the District Judge's order granting a review. Appellants rely on Chhajju Ram v. Neki 72 Ind. Das. : (1922)24BOMLR1238 . The actual facts of that case are not too clear, but it is evident from the judgment that the case is not one in which the first two grounds for review mentioned in Order XLVII, Rule 1, Civil Procedure Code were considered at all, the decision being that when a review is granted for 'any other sufficient reason' that reason must be analog us to the preceding reasons contained in that rule. In the present case the District Judge was gulity of an error of law, but an error so patent that we think it can be said to be apparent on the face of the record. It has undoubtedly been held in many cases, such as Hazra Sardar v. Kunja Behari Nag Choudhury 44 Ind. Cas. 161 and Ellem v. Basheer 1 C. 184 : 24 W.R. 382 : 1 Ind. Dec.118 that a mistake in law is not sufficient ground for granting a review; but there are other cases in which a different view is taken. We are of opinion that each case must be judged by it self, and that where the error of law is such that it is clearly apparent on a perusal of the record, there is ground for granting a review. To bold otherwise would be to multiply ltigation, for naturally the aggreived party would appeal and the error would have to be corrected by the Appelate Court rather than in the Court of first instance. Here the question of law involved is the question of priority of hers under the Mitakshara Law applicable to this Presidency and it is a question which can admit of no doubt, when it has been definitely laid down by this Court as the law of the land. In the present case, therefore, we think that the error was one apparent on the face of the record and that, therefore, the District Judge had power to grant a review under the provisions of Order XLVII. We are not prepared to accept appellants' contention that the word 'error' must necessarily be limited to errrors of fact but consider that there are cases in which an error of law can also come within the meaning of the rule.

5. The appeal accordingly fails and is dismissed with costs.


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