Ghulam Hussain vs Ghulam Qadir and Others

Adarsh Sein Anand, J.—This review petition arises out of Civil 2nd Appeal No. 32 of 1971 decided by a Full Bench of this Court on 18-1-

1972. Brief facts which gave rise to the civil second appeal may first be noticed.

The Plaintiff-Petitioner, Ghulam Hassan, filed a suit for the recovery of possession of land measuring 1 kanal and 6 marlas situate in Tehsil

Kishtwar. According to the Plaintiff-Petitioner, he entered into an agreement on 21st Chet 1998 Bk to sell the suit land to the Defendants-

Respondents. He delivered the possession of the suit land in consequence of the agreement to the proposed vendee after receiving the

consideration amount in full. It was stipulated between the parties that a sale deed would also be drawn up in respect of the sale of the suit land.

However, no sale deed was executed and the possession of the Defendants-Respondents remained only permissive over the suit land. Plaintiffs

case was that as no sale deed had been executed, he was entitled to take back the possession of the suit land from the Defendants. The

Defendants-Respondents, on the other hand, alleged that they had held the land as 'owners' for a period of over 12 years and had also perfected

their title by prescription and that the Plaintiff was, as such not entitled to take back the possession from them. They further asserted that the suit

was time barred and was liable to be dismissed on that score.

The trial court, as well as the first appellate court, negatived the contention of the Defendants-Respondents and held that as the possession of

the Defendants-Respondents was purely permissive, the Plaintiff-Petitioner was entitled to succeed in the suit and recover back the possession. It

was further observed by both the courts that since the possession of the Defendants was permissive their being in possession for a period of more

than twelve years was immaterial.

Aggrieved, the Defendants-Respondents filed an appeal in this Court. The appeal was originally heard by Shri Jaswant Singh J. (as his Lordship

then was) sitting singly and being of the view that important questions of law were involved in the case, his Lordship referred the appeal to be

heard by a larger Bench. Consequently, a Full Bench of this Court comprising of Shri S.M.F. Ali, Chief Justice (as his Lordship then was) Shri

J.N. Bhat J. and Shri Jaswant Singh J. (as his Lordship then was) was constituted and after the appeal was heard and disposed of by the various

arguments raised before them, allowed the appeal and set aside the judgment and decree of the courts below and dismissed the Plaintiffs suit. It

was inter alia observed by their Lordships of the Full Bench"":

The only point that has been argued before us is where the vendor had delivered possession of the property in dispute to the Defendant and had

received the entire consideration money and remained silent for a long period of 22 years, he will be estopped from recovering possession of the

property even apart from the question of adverse possession. It is true that the question of adverse possession in this case does not arise because

there has been no refusal on the part of the proposed vendor to execute the sale deed, but we are rather impressed with the argument of the

learned Counsel for the Appellant that as the Plaintiff himself had given possession and received the entire consideration money, he cannot be

allowed to take advantage of his own fraud so as to recover possession from the Defendants after such a long time.

It was further observed by the Bench:

It is manifestly clear that where the Plaintiff voluntarily executes a contract of sale, puts the proposed vendee in possession of the property and

receives the entire consideration money, there is no special equity in his favour to allow him to turn round and claim the property after a long time

merely because the price of the property has increased. He cannot be allowed to repudiate the fiduciary obligation arising out of the contract nor

can the court aid him to commit fraud by dispossessing a prospective vendee who has done all that was required of him to do for purchasing the

property.

For these reasons we find that even though the possession of the Defendant may be permissive since the Plaintiff has received the entire

consideration money and allowed the position to be changed to the prejudice of the Defendant, he will be estopped from repudiating the sale

transaction and recovering possession from the Defendant. On this ground alone, in our opinion, the Defendant is entitled to succeed.

So far as the two important facts namely that the Defendant was given possession under an agreement to sell and that the Plaintiff received full

consideration money of Rs. 400/- are concerned they are not at all disputed before us.

For these reasons we allow this appeal, set aside the judgment and decree of the courts below and dismiss the Plaintiff's suit. There will be no

order as to costs.

The Plaintiff-Petitioner has now come up for a review of the judgment and decree of the Full Bench dated 18-1-1972.

Mr. S.P. Gupta, learned Counsel for the Plaintiff-Petitioner, submits that the learned Judges of Full Bench had erred in allowing the appeal and

dismissing the Plaintiff's suit. It is urged that the learned Judges of the Full Bench apparently based their judgment on the observation of a Full

Bench of the Bombay High Court in Bapu Appaji v. Kashi Nath ILR 41 Bom 438 : AIR 1916 Bom 1 and since the Bombay authority had

proceeded on the principles laid down in Section 53-A of the T.P. Act (Central) and which provisions are not applicable to the State of Jammu

and Kashmir, the judgment of the Full Bench was wrong and suffered from an error apparent on the face of the record and the same deserved to

be remedied by a review of the aforesaid judgment. Mr. Gupta has also urged that the point with regard to the estoppel was not argued before the

Full Bench and that it has wrongly been stated in the judgment that the said point had been argued before the Bench. It has also been submitted by

the learned Counsel that by allowing the principles, of estoppel to operate in cases of permissive possession, the judgment of the Full Bench has

the effect of invalidating Section 138 of the T.P. Act On the basis of these submissions, it is urged that the judgment of the Bench requires to be

reviewed. Elaborate arguments have been addressed by Mr. S.P. Gupta, on the distinction between doctrine of part performance and the doctrine

of equitable estoppel and it has been urged that the learned Judges of the Full Bench fell in an apparent error in overlooking the distinction. It has

been submitted by Mr. Gupta that if the distinction had been kept in view the suit of the Plaintiff-Petitioner could not have been dismissed. Mr.

Gupta urges that since the error is apparent on the face of the record, the judgment of the Bench be reviewed. Reliance has been placed on 5

JKLR 4; 5 JKLR 185 and 1971 JKLR 268 to canvass that the view taken by the Full Bench, was erroneous.

I have given my anxious consideration to the various contentions by Mr. S.P. Gupta but in my opinion, the review of the judgment of the Full

Bench in the facts and circumstances of the case is not called for.

Apart from the fact, that it does not appear from a perusal of the judgment of the Full Bench that any argument at all was raised before their

Lordships to the effect that the doctrine of 'equitable estoppel' on which implied reliance was placed by the Full Bench, offends Section 138 of the

T.P. Act or that by allowing the Defendants to continue the possession of the suit land, the provisions of Section 138 of the T.P. Act would stand

violated, it appears that even it the ground of attack on the judgment of the Full Bench, as raised by Mr. Gupta, is accepted to be valid for the sake

of argument it would not justify the review of the judgment of the Full Bench. A review petition has, a quite limited purpose and it is not an appeal

in disguise. Review of the judgment would be permissible only in exceptional cases which come within the ambit of Order 47, Rule 1 CPC For

facility of reference, Order 47 Rule 1 CPC may first be reproduced. It provides:

(1) Any person considering himself aggrieved.

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred.

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a court of Small Causes.

and who, from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or

could not be produced by him at the time when the decree was passed or order made, or on account of some mistake, or error apparent on the

face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a

review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some

other party except where the ground of such appeal is common to the applicant and the Appellant, or when, being Respondent, he can present to

the Appellate court the case on which he applies for the review.

From a plain reading of the aforesaid provisions it is apparent that under Order 47, Rule 1, CPC a judgment may be open to review inter alia if

there is a mistake or an error apparent on the face of the record. An error which has to be detected by a long drawn process of reasoning, by

reference to various earlier rulings of the court, can hardly be said to be an error apparent on the face of the record. Where the alleged error is far

from self evident and has to be established by lengthy arguments such an error cannot be termed as an error apparent on the face of the record

justifying the court to exercise its power of review under Order 47, Rule 1, CPC in the instant case, from the arguments raised by Mr. S.P. Gupta,

even if it may be assumed for the sake of argument that the judgment of the Full Bench proceeded on an erroneous exposition of law, that by itself,

in my opinion, is not a good or sufficient ground for the review of the earlier judgment The earlier judgment which apparently was given on the

peculiar facts of the case may require reconsideration but, 1 am afraid, it cannot be interfered with under Order 47, Rule 1, Code of Civil

Procedure.

By means of this review petition the Petitioner appears to be wanting to have the so called erroneous decision of the Full Bench set aside and

that unmistakably is beyond the scope of Order 47, Rule 1, CPC and the jurisdiction to set aside an erroneous judgment is within the domain of an

appellate court when the matter is brought before it in a proper appeal. In case a review of the judgment is permitted in the facts and circumstances

of this case, it would imply that this Court is sitting in appeal over the judgment of the Full Bench and that course is neither desirable nor

permissible. A review petition cannot be permitted to operate as an appeal.

The power of review granted to the court under Order 47 Rule 1, CPC has a limited purpose and court would be transgressing its powers if it

proceeds to enlarge the scope of review by interfering with an alleged earlier erroneous order. A review petition, in that case, would be equated

with an appeal which is not permitted by law and offends against the accepted judicial principles of attaching finality to the judgments.

In Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, the scope of a review petition came up for consideration and their

Lordships observed:

A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. Where

without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could

reasonably be no two opinions entertained about it a clear case of error apparent on the face of the record would be made out.

In view of these observations, the review petition filed by the Petitioner is not maintainable as the error complained of by the Petitioner cannot

be termed as a ""patent error"". That apart, the arguments which have been raised before us and on the basis of which the earlier judgment of the

Full Bench is sought to be reviewed, do not appear to have been raised before the Full Bench, and as such, it would not be proper to review that

earlier judgment on the points which were never raised or brought to the notice of the Full Bench and on which points the learned Judges of the

Full Bench had no occasion to apply their minds.

For the aforesaid reasons, the review petition, in the facts and circumstances of this case is not maintainable and merits dismissal. In case the

Petitioner was aggrieved of the judgment of the Full Bench he should have followed the proper remedy of an appeal to the Supreme Court of

India.

In the view that I have taken that the review petition is not maintainable, I would refrain from dealing with the other contentions raised by Mr.

S.P. Gupta on the merits of the case.

The review petition is, accordingly, dismissed as not maintainable but in the peculiar circumstances of the case I would leave the parties to bear

their own costs.

Mian Jalal-ud-din, C.J.

I have read with advantage the judgment prepared by my learned brother Hon'ble Mr. Justice Dr. Anand. I agree with him that the review

petition is not maintainable on the ground that a review cannot be permitted to operate as an appeal in disguise so as to enable an aggrieved party

to re-agitate the matter and get it corrected, and further that the arguments which have been raised before us and on the basis of which the earlier

judgment of the Full Bench is sought to be reviewed do not appear to have been raised at all before the Full Bench. But while I agree with the

proposition of law enunciated by my learned brother, that for these reasons the scope of review petition is limited, I should, however, like regard

being had to the importance of the question raised before us, to add a few words of my own in elucidation of the legal proposition debated on

behalf of the Petitioner.

I agree with Mr. S.P. Gupta learned Counsel for Plaintiff-Petitioner, that the principle underlying Section 53-A of the T.P. Act, is not

applicable in the State nor is the principle of equitable estoppel akin to the doctrine of part performance available to a party in the State. Here in

the State we have got Section 138 of the Transfer of Property Act, which expressly provides that no transfer of immovable property, except in a

case governed by any special law to the contrary, shall be valid unless and until it is in writing registered and registration thereof has been

completed in accordance with the Registration Act. Under this Section transfer of immovable property without satisfying the requirements of the

Section is invalid and it does not confer any rights of ownership on a party in whose favour there is no registered instrument of sale. In the absence

of such an instrument, the mere possessory rights will not mature into ownership rights. In view of this the doctrine of part performance or the

doctrine of equitable estoppel akin to it cannot be invoked by a party to his aid seeking relief against a third party. Therefore, the judgment of the

Pull Bench under review will be deemed to have decided the peculiar facts of that case and shall not be construed to have laid down any broad

and general proposition of law in favour of the doctrine of equitable estoppel or part performance in violation of the legal principle enshrined in

Section 138 of the Transfer of Property Act as these doctrines clearly offend Section 138 of the Transfer of Property Act.