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Judgment
T. Sathiadev, J.—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.
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 u/s 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.
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 u/s 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 u/s 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.
A Division Bench of this Court in Pakkiri Muhammad Rowther Vs. L. Swaminatha Mudaliar, 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.
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.
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 Vs.
Sambanda Chettiar, 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 Mudlapur Murari
Rao and Others Vs. Balavanth Dikshit and Another, . 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. Vs.
Srinivasa Roadways, Madurai and Others, . Thereafter he refers to the decision in Benoy Krishna Rohatgi and Others Vs. Surajbali Misra and
Another, 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 Others Vs. Shitla Prasad, 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 u/s 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.
Mr. Swaminathan would stoutly oppose these contentions by not only referring to Pakkiri Muhammad Rowther Vs. L. Swaminatha Mudaliar,
already referred to but also to the decision rendered in Soosai Anthony D''Costa Nicholas D''Costa Vs. Francis Roche Anthony Kurush Roche
(Died) and Others, 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 Vs. Deputy Director of Consolidation and Another, 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.
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 u/s 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 u/s 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 Rajanarayanaperumal Temple Vs. Rethinam Pillai, 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 u/s 15 of the Act would stand altogether on a different place and it will not be
governed by the notification u/s 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.
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.
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.
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 Vs. State of Bihar, 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 u/s 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.