Harekrishna Chakraborty & Ors vs Maya Rani Chakraborty

Bibek Chaudhuri, J

The instant application under Section 114 read with Order 47 rule 1 of the Code of Civil Procedure (hereafter the CPC) has been filed by the respondent numbers 1-3 praying for review of the judgment and order dated 19th May, 2017 passed by Hon'ble Justice Tapash Mookherjee, as his lordship then was, in S.A No. 70 of 1998.

The applicants as plaintiffs instituted a suit for declaration of title and recovery of possession against the defendants/appellants/opposite parties in the Court of the Learned Civil Judge (Junior Division), Ghatal which was registered as Title Suit no 167 of 1994.

It was contended by the plaintiffs/respondents/applicants in the said suit that one Bipin Bihari Sarkar was the original owner of plot no. 817 measuring an area of 49 decimal of land and plot no. 823 measuring and area of 12 decimal of land. After the death of said Bipin Bihari Sarkar, his wife Gnyanodabala alone inherited the suit property. The said Gnyanodabala transferred the suit property by executing a deed of sale on 4th January, 1928 which was subsequently registered on 6th June, 1928 in favour of one Sitangshu Bhusan Chakrobarty. During his lifetime, Sitangshu Bhusan Chakrobarty constructed a house over a portion of plot no. 817. He died in the year 1365 BS corresponding to 1958 A.D leaving behind the respondents/ applicants as his legal years. One Mihir Lal Charkroborty, who was the brother of Sitangshu Bhusan Chakrobarty used to reside by constructing a dwelling house over plot no. 829. Mihir Lal Charkroborty, died in the year 1364 BS. Sometimes, in 1392 BS, the dwelling house of the defendants/ appellants who are the legal heirs of the said Mihir Lal was completely destroyed and they requested the respondents to permit them to reside temporarily in the house constructed by Sitangshu Bhusan Chakrobarty, predecessor in interest of the respondents/ applicants on plot no. 817. The respondents permitted them to stay in the suit premises situated on plot no. 817 out of sympathy as licensees on condition that they would vacate and deliver up peaceful possession of the suit property as and when required by the respondents. The respondents requested the appellants/ Opposite parties to vacate the suit premises on 21st Shrabon, 1401 BS, but the appellants refused to vacate the suit premises and claimed title over the suit property as per revisional settlement record of rights. The respondents/ applicants further pleaded that their predecessor-in-interest Sitangshu Bhusan Chakrobarty entrusted his brother Mihir Lal to get the suit property recorded in his name during R.S operation, but Mihir Lal illegally managed to record his name in the R.S Record of Rights. Therefore, the plaintiffs/ applicants also prayed for declaration of their title over suit plot no. 817 and further declaration that the R.S record of rights in respect of suit property was baseless and erroneous.

The defendants/ appellants/ opposite parties contested the said suit by filling written statement, denying all material allegations made out by the applicants in the plaint. According to the appellants/ opposite parties, the suit property originally belonged to one Upendra, Rajendra and Rakhal Chandra. Their names were recorded in C.S record of rights as tenants in respect of the suit property. Subsequently, their tenancy was terminated and the suit property was in Khas possession of one Krishnapada Bandyopadhyay, superior landlord who settled the suit property in favour of Mihir Lal Chakroborty. Accordingly, it was recorded in the name of Mihir Lal in R.S record of rights. After the death of Mihir Lal, the appellants/opposite parties inherited the suit property.

The Learned Trial Judge dismissed the suit on contest. Against the said judgment and order of dismissal, the plaintiffs preferred an appeal which was registered as Title Appeal No.70 of 1996. The said appeal was allowed of contest and the suit was decreed by the Learned Judge in First Appellate Court.

The defendants/ opposite parties filled a second appeal being S.A No. 70 of 1998 before this Court.

This court allowed the appeal on contest, thereby setting aside the judgment and decree passed by the First Appellate Court and restoring the judgment and decree of dismissal of the suit passed by the Learned Trial Judge in title suit no.167 of 1994.

The Judgment and Order dated 19th May, 2017 passed by the Hon'ble Justice Tapash Mookherjee, J. as his lordship then was, in S.A No. 70 of 1998 is under review at the instants of the plaintiffs/appellants.

S.A 70 of 1998, was allowed on contest by The Hon'ble Justice Tapash Mookherjee, J. on the following grounds:-

i. The respondents failed to prove that Bipin Bihari Sarkar had any right, title and interest over the suit property, so was Gnyanodabala.

ii. Since, Gnyanodabala did not acquire any right, title and interest over the suit property after the death of her husband Bipin Bihari Sarkar, she had no authority to transfer the suit property in favour of the predecessor in interest of the plaintiffs/respondents.

iii. The deed of sale by virtue of which the plaintiffs claimed title over the suit property (Exhibit-1) was allegedly executed by Gnyanodabala by the pen of one Purna Chandra Roy. However, no document of authority showing competence of the said Purna Chandra Roy to execute the deed of sale (Exhibit-1) in favour of Sitangshu Bhushan Chakraborty was filed or proved on behalf of the plaintiffs/ respondents.

iv. The plaintiffs/respondents filed certain documents (Exhibit-2 series) showing payment of rent in favour of superior landlord up to 1344 B.S. On the contrary the appellants produced rent receipts showing payment of rent to the landlord from 1351 B.S. to 1360 B.S. and subsequently to the State after the West Bengal Estates Acquisition Act came into force.

v. Deed of sale on the basis of which the respondents claimed title over the suit property was disbelieved by the Learned Second Appellate Court on the ground that the executants, namely, Purna Chandra Roy had no authority to execute the deed and the principles laid down in Monmotho Nath Mukherjee and others-vs. Purna Chandra Nahatta: 29 C.W.N 539 and Purna Chandra Nahatta vs. Monmotho Nath Mukherjee and others: AIR 1928 P.C 38 are not applicable under the facts and circumstances of the said appeal because no person duly authorised by Gnyanodabala admitted the execution of the deed by Gnyanodabala through the pen of Purna Chandra Roy.

vi. The provisions of Section 34 of the Indian Registration Act was not complied with.

vii. The provisions of Section 68 of the Indian Evidence Act was not applicable because Section 68 deals with the circumstances when a document is required to be attested. A deed of sale is not required to be proved by any attesting witness.

viii. As the appellant failed to prove that mandatory provisions of Section 34 of the Registration Act was complied with, the court cannot take any presumption under section 114 (e) of the Evidence Act.

ix. The Learned First Appellate Court erred in law by presuming genuineness of the deed of sale as it was admissible under section 90 of the Indian Evidence Act. According to the Hon'ble Judge in Second Appeal, there is no presumption of genuineness of a document which is not properly executed or registered.

It is submitted by Mr. Bhattacharjya, Learned Advocate for the respondents/applicants that the Hon'ble Judge while passing judgment in S.A No. 70 of 1998 failed to appreciate the provisions of Section 34 of the Registration Act and committed an error which is apparent on the face of record by disbelieving execution of the deed of sale (Exhibit-1) by virtue of which the predecessor in interest of the applicants got title over the suit property.

It is further urged by Mr. Bhattacharjya, that the Learned Judge failed to appreciate the latent proposition laid down in the decision of Monmotho Nath Mukherjee (supra). Moreover, the relevant provisions of Section 90 of the Evidence Act as regards admissibility of thirty years old document was also not properly appreciated by the Learned Judge in second appeal. So, the Judgment passed in S.A. No. 70 of 1998 is patently erroneous and ought to be reviewed.

Mr. Kallol Mondal, Learned Advocate for the opposite party, on the other hand, submits that under Order 47 Rule 1 of the CPC, a judgment made upon to review inter alia, if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 of the CPC. Section 114 read with Order 47 Rule 1 of the CPC does not provide for an unlimited power on the court to examine a judgment like that of an appellate court. Under the provisions of review, it is not permissible for an erroneous decision to be reheard and corrected. The power of review cannot be used like that of an appeal in disguise. In support of his contention, Mr. Mondal refers to a decision of the Hon'ble Supreme Court in the case of Parsion Devi and others vs. Sumitri Devi and others reported in (1997) 8 SCC 715.

Mr. Mondal, also relies on another decision of the Supreme Court in Sasi (dead) through legal representatives vs. Aravindakshan Nair and others reported in (2017) 4 SCC 692 and submits that in case of review the error in the impugned judgment has to be self evident and is not to be found out by a process of receiving.

Section 114 read with Order 47 Rule 1 of the CPC prescribes the limitations for entertaining an application for review. The limitations are that a party seeking review of the judgment has discovered a new and important matter or evidence which after exercise of due diligence was not within its knowledge or could not be produced by it at the time when the decree was passed or the impugned judgment or order suffers from some mistake or error apparent on the face of the record or for any other sufficient reason. In the instant case the applicants prayed for review of the judgment passed in S.A 70 of 1998 on the following grounds:-

a) That the Hon'ble Judge while passing judgment in the aforesaid appeal failed to appreciate the purport of Section 34 of the Registration Act without affording any opportunity of hearing to the registering authority to that effect separately and independently which could only have been done by way of an independent suit/ proceeding for cancellation of the concerned deed.

b) The Hon'ble Judge failed to assess the evidentiary value of exhibit-1 and wrongly came to the finding that exhibit-1 is an invalid document.

c) The Hon'ble Judge also failed to appreciate the principle of presumption laid down in Section 114(e) of the Evidence Act and Section 90 of the Evidence Act.

On careful perusal of the judgment passed in S.A 70 of 1998, I find that the Hon'ble Judge on due consideration of the facts and circumstances involved in the appeal applied various provisions of legal principles contained in the Registration Act and the Evidence Act.

The objection to the effect that the Hon'ble Judge failed to appreciate true purport of the provisions contained in the Registration Act and the Evidence Act, cannot be said to be error apparent on the face of the record. The objections raised by the applicants in the instant application for review can only be decided in appeal by way of appreciation of evidence and consideration of the relevant provisions of Statute. There is no such scope in review under Section 114 read with Order 47 Rule 1 of the CPC.

For the reasons stated above, I do not find any merit in the application for review.

Accordingly the instant application for review of the judgment passed in S.A 70 of 1998 is rejected on contest without cost.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.