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Abdul Aziz and anr. Vs. Jai Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCiv. Review No. 43 of 1950
Judge
Reported inAIR1951HP67
ActsLimitation Act, 1908 - Section 12(2) - Schedule - Article 173; ;Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantAbdul Aziz and anr.
RespondentJai Ram and ors.
Appellant Advocate Tek Chand, Adv.
Respondent Advocate Man Mohan Nath, Adv.
DispositionApplication dismissed
Cases ReferredNatesa Naicker v. Sambanda Chettiar
Excerpt:
- .....in the court of the subordinate judge of suket for possession of the property on foot of the prior sale in favour of their father. kutubuddin's defence, inter alia, was that the sale in favour of basantu was void as he was a non. agriculturist. it is common ground that under the law of the lard applicable in suket a sale of agricultural land by an agriculturist to, a con-agriculturist would be void. this contention was repelled by the trial court & the suit was decreed on 23-8-1948 kutubuddin went up in appeal to the dist. j. of mandi who by his judgment dated 7-5-1949 allowed the appeal & dismissed the suit on the ground that the plffs. had failed to prove that basantu was an agriculturist. the plffs. thereupon came up in second appeal to this court, & as kutubuddin has died meanwhile.....
Judgment:

Chowdhry, J.

1. This is an application by two of the defts. Abdul Aziz & Shafkat Ali, under o. 47, Rule 1, Civil P. C., for review of the judgment of my learned predecessor-in office dated 27-4-1950.

2. Two sales of the same property were, one after the other made by the widows of one Banku, one in Samvat 1997 in favour of Basantu & the other in Samvat 2003 in favour of Kutubuddin. Basantu having died meanwhile, his minor sona Jai Bam & Dhania filed a suit against Kutubuddin in the Court of the Subordinate Judge of Suket for possession of the property on foot of the prior sale in favour of their father. Kutubuddin's defence, inter alia, was that the sale in favour of Basantu was void as he was a non. agriculturist. It is common ground that under the law of the lard applicable in Suket a sale of agricultural land by an agriculturist to, a con-agriculturist would be void. This contention was repelled by the trial Court & the suit was decreed on 23-8-1948 Kutubuddin went up in appeal to the Dist. J. of Mandi who by his judgment dated 7-5-1949 allowed the appeal & dismissed the suit on the ground that the plffs. had failed to prove that Basantu was an agriculturist. The plffs. thereupon came up in second appeal to this Court, & as Kutubuddin has died meanwhile they impleaded his five sons as respondents. My learned pre-decessor-in office allowed the appeal, set aside the judgment & decree of the Dist. J. & restored the judgment & decree of the Subordinate Judge holding that the sale in favour of Basantu did not come under the mischief of the said law of Suket inasmuch as he was not a non-agriculturist. It is this judgment which is now sought to be reviewed by two of the sons of Kutubuddin. The remaining three sons have been impleaded as pro forma, respondents, & they have not put in appearance despite notice.

3. There was a preliminary objection raised by the learned counsel for the plffs. respondents, namely, that the application for review was time-barred. The application was no doubt filed beyond the period of ninety days prescribed by Article 173 of the Limitation Act, but it would be within time if under Section 12 (2), Limitation Act, benefit is given to the applicants of the time taken in obtaining a copy of the decree of this Court. It was however, contended on behalf of the respondents that it is not necessary that an application for review should be accompanied by a copy of the judgment or decree sought to be reviewed. That is a deba table point. But even if it be conceded that the filing of a copy of the decree was not necessary, the applicants would be entitled to the benefit of Section 12 (2), Limitation Act, if they have actually obtained & filed such a copy. Gauri Shankar v. Kashi Nath, 56 ALL. 591, The preliminary objection is therefore disallowed.

4. Basantu waa a Kulal by caste, & under a resolution dated 31-7-1946 passed by the Sukeb State it waa declared that Kulals were not agriculturists. It has been held by all the Courts in this case that this resolution, which was passed several years after the sale in favour of Basantu, did not have a retrospective effect & so did not affect that sale. It appears, however, that there were already in existence two lists since before the sale, one mentioning the agricultural & the other the non-agricultural tribes, but Kulals appeared in neither of them. It was on an interpretation of the said Suket law in the light of two list? that the case was decided against the plffs. by the Dist. J. but in their favour by my learned predecessor-in-office. It was held by the Diet J. that as Kulals were not mentioned in the list of agriculturists, Basantu was not one & therefore the sale in his favour was void. On the contrary, the Judicial Commissioner hpld that the sale was valid since Kulals were not included in the list of non-agriculturists & therefore Basantu was not a non-agriculturist. It is contended before me on behalf of the defts applicants that the real point in issue was whether Basantu was an agriculturist, & not whether he was not a non-agriculturist, & that my learned predecessor-in-office had committed an error in deciding the case on the latter basis. This error he has characterised as a mistake or error of law apparent on the face of the record, & also as constituting other sufficient reason within the purview of Order 47, Rule 1 (c), Civil P. C.

5. There is no doubt that the expression 'mistake or error apparent on the face of the record' in the aforesaid Rule is not limited to mere errors of fact but also includes errors of law, as held in Ram Baksh v. Rajeshwari Kunwar, A. I. R. (35) 1948 ALL. 213, a ruling cited by the learned counsel for the applicants. It is, however, not every error of law which would be a good ground for review. As held in the ruling just cited, & also in another ruling cited by the learned counsel for the applicants, Murari Rao v. Balavanth, A. I. R. (11) 1924 Mad. 98, the error must be 'patent upon the face of the record.' Indeed the wordings of the Rule itself are quite clear & specific on the point. It has accordingly been held in the aforesaid Allahabad ruling that an erroneous view of the law on a debatable point would not be a mistake or error apparent on the face of the record. For the same reason, a mere failure to interpret the law correctly when the point of law is complicated would not be an error of law apparent on the face of the judgment, as held in Maung Po Hla v. Ma Ngwe, A. I. R. (24) 1937 Rang 56. Nor would a Court hearing an application for review have jurisdiction to order a review because in is of the opinion that a different conclusion of law should have been arrived at, as held in Girdhar Lal v. Kapadvanj Municipality, A. I. R. (17) 1930 Bom. 317. An instance of the kind of error mentioned in the Rule would be where there is a legal position clearly established by a well-known :authority but by some unfortunate oversight the Judge had gone palpably wrong by reason of the authority not having been cited before him as was the case in Natesa Naicker v. Sambanda Chettiar, A. I. R. (28) 1941 Mad. 918.

6. Now, in the present case, the learned Dist. J. & my learned predecessor-in-office came to different conclusions with regard to the status of Basantu because they put different interpretations on the Suket law forbidding transfers to persons whowere not agriculturists. According to one interpretation it was sufficient to validate the sale on the ground that the vendee was not a non-agriculturist, but according to the other interpretation the sale could only be validated if the vendee were fan agriculturist. Whichever be the erroneous view, there could be no doubt that it arose cut of a debatable point or as a result of incorrect interpretation of the law. To try to rectify such an error would not be to rectify an error apparent on the face of the record in exercise of the power of review given by Order 47, Rule 1, Civil P. C. but would amount to over-stepping the limits of that power & trespassing into those of an appeal.

7. For reasons recorded above, I hold that this application for review ia misconceived & it ia accordingly rejected with costs.


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