Mrs. Myra Muriel Lobo e Paul vs Shri Ramakant R. Harmalkar, Shri Dyaneshwar R. Harmalkar and Shri Avinash R. Harmalkar

A.P. Lavande, J.—Heard Mr. Lotlikar, learned Senior Counsel for the applicant and Mr. Thali, learned Counsel for the respondents. The applicant, who is the plaintiff in original Civil Suit No.81/2008/D pending before the Civil Judge, Junior Division, Mapusa seeks review of the judgment and order dated 5th October, 2009 passed by the learned Single Judge of this Court in Writ Petition No. 322/2009 by which Writ Petition preferred against the judgment and order dated 19th May, 2009 in Miscellaneous Civil Appeal No. 1/2009 passed by the District Judge-3, North Goa, Panaji has been allowed. By the judgment and order dated 19th May, 2009, the lower appellate Court had allowed the appeal preferred against the order dated 8th December, 2008 passed by the leaned Civil Judge, Junior Division, Mapusa in Regular Civil Suit No. 81/2008/D dismissing an application for temporary injunction filed by the petitioner/ plaintiff in the suit for permanent injunction.

Parties shall hereinafter be referred to as per their status before the trial Court.

The plaintiff filed the above suit against the defendants seeking permanent injunction in respect of an area of 48000 square metres out of the total area of 1,62,559 square metres of property known as ''Oxel Vhal'' and also ''Santichoo Voll'' bearing survey No. 31/1 of Oxel Village. The said suit was contested by the defendants. On behalf of the defendants claim of tenancy was raised. The trial Court, upon appreciation of materials placed on record by both sides, dismissed the application for injunction. The lower appellate Court by the judgment and order dated 19th May, 2009 reversed the order, inter alia, on the ground that in survey record, the name of the defendants did not appear. The lower appellate Court placed reliance upon the two judgments of this Court i.e.(i) Damodara R. P. Lamdo Vs. Bhasker R. Jalmi; 1990(2) GLT 407 (ii)Shriram Narain Dhond Vs. Demu Surya Gande; 2003(1) GLR 104(Bom). In the case of Damodara R. P. Lamdo (supra) it has been held that survey records are presumed to be proved and they cannot be rebutted by affidavits. In both these cases, the names of the parties, who claim right in the properties, did not appear in the survey records.

The applicant has sought review on the following grounds :

(i) The learned Single Judge has not dealt with the the above referred two judgments relied upon by the lower appellate Court and has not even referred to the same in the impugned judgment and order which clearly discloses an error apparent on the face of record.

(ii) The learned Judge has drawn wrong analysis from the power of attorneys relied upon by the defendants in as much as the power of attorneys clearly negative the claim of the defendants as tenants in respect of the suit property.

(iii)The learned Judge has proceeded on the assumption that the defendants claimed that they were the tenants in respect of the entire property in Survey No. 31/1 when the defendants claimed that they were the tenants in respect of an area of 48,000 square metres as against the total area of 1,62,559 square metres; the learned Judge also gave undue weight to the area mentioned in the tenancy proceedings and totally discarded the explanation given by the defendants that they had moved for amendment in the application seeking tenancy declaration when in fact no such an application placed on record. The defendants did not even refer to such application in their written statement or rejoinder.

Mr. Lotlikar reiterated the grounds urged in the application and placed reliance upon the above referred two judgments and submitted that the learned Single Judge has not even dealt with the two judgments referred to by the lower appellate Court and has failed to consider as to how the lower appellate Court has exercised the jurisdiction illegally and without giving such a finding, has reversed the order passed by the lower appellate Court in exercising the appellate jurisdiction, which has been correctly exercised in terms of the judgment of the Apex Court in the case of Wander Ltd. and Another Vs. Antox India P. Ltd., . According to learned Counsel, the grounds taken in the application disclose errors apparent on the face of record and, therefore, a clear case for review of judgment and order is made out. In support of his submissions, learned Counsel relied upon the following judgments :

(i) Tarquino Raul Henriques Vs. Damodar Mangalji and Co. Pvt. Ltd. and Another, .

(ii) Tukaram Rajaram Suple and Others Vs. Sonba Chindhu Mali, .

Per contra, Mr. Thali, learned Counsel appearing for the respondents submitted that no case has been made out for review of the impugned judgment and order and even if the argument on behalf of the applicant is accepted, at the most, it could be said that the judgment and order is wrong, but that could not be ground for seeking review. Learned Counsel further submitted that mere fact that the two judgments of this Court dealing with presumption as to survey record has not been considered by the learned Single Judge, would not be ground for review. Learned Counsel further submitted that in order to succeed in a review application, the applicant has to make a case of failure of justice, which has not been done in the present case. He further submitted that the presumption in respect of the survey records arises only when the names of the parties appear in the survey records and no presumption can be taken against a party from the fact that his name does not appear in survey record. In support of his submissions, Mr. Thali relied upon the following judgments :

(i) Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, .

(ii) Parsion Devi and Others Vs. Sumitri Devi and Others, .

(iii) Raj Kumar Ramavtar Chourasia Vs. Mathew Charian Christian, .

I have considered the rival submissions and perused the record and the judgments relied upon.

The question which arises for consideration is whether the applicant has made out grounds to review the judgment and order dated 5th October, 2009 passed by the learned Single Judge.

Perusal of the record discloses that the lower appellate Court relied upon on the survey records in respect of the suit property and placed reliance upon the two judgments i.e. (i) Damodara R. P. Lamdo Vs. Bhasker R. Jalmi; 1990(2) GLT 407 (ii)Shriram Narain Dhond Vs. Demu Surya Gande; 2003(1) GLR 104(Bom) and held that since the names of the defendants did not appear in the survey records, presumption arose and the same did not stand rebutted by the evidence produced by the defendants. The lower appellate Court also analysed the materials placed by both sides and came to a finding that the plaintiff had made out all the three ingredients for the grant of injunction in her favour.

A bare perusal of the judgment and order dated 5th October, 2009 which is sought to be reviewed, discloses that the learned Judge has neither referred to nor considered the ratio of the two judgments referred to by the lower appellate Court upon which reliance was placed on behalf of the plaintiff. Both the judgments were rendered in the context of the fact that the names of the parties did not appear in survey records. Therefore, I find it difficult to accept the submission of Mr. Thali that mere fact that the name of the party does not appear in survey record, does not raise any presumption against him/ her. In my opinion, the ratio of both the judgments is applicable in the case where in survey records, the name of the party does not appear and he claims tenancy in respect of the said property.

It is well settled that while deciding the application for injunction in respect of an immovable property, the survey records are vital and certain presumptions follow which have to be displaced by the party, who asserts that entries made therein are not correct. In the present case, the lower appellate Court had placed heavy reliance on the survey records, which did not disclose the names of the defendants. The learned Single Judge did not deal with this aspect of the matter nor dealt with the two judgments referred to by the lower appellate Court in the judgment and order which was challenged before this Court. In my considered opinion, this clearly discloses an error apparent on the face of record and the impugned judgment and order is liable to be recalled.

It is well settled that the jurisdiction under Article 227 of the Constitution of India against an order passed by the lower appellate Court dealing with an order of injunction passed by the trial Court is very limited and the jurisdiction under Article 227 is to see that the inferior Courts and Tribunals function within the limits of their authority and not to correct error apparent on the face of record muchless an error of law. A mere wrong decision without anything more is not sufficient to attract jurisdiction under this Article. In exercise of supervisionary jurisdiction under Article 227, the High Court does not act as an appellate Court or Tribunal and it cannot review and reweigh the evidence upon which the determination of the inferior Courts or Tribunal purports to be based. It may not correct error of law in the decision. In the present case, the lower appellate Court had jurisdiction to deal with the appeal preferred against the order refusing injunction which had to be decided in terms of the settled principles laid down by the Apex Court in the case of Wander Ltd. (supra). Therefore, in my considered opinion, failure of the learned Single Judge to deal with the presumption arising from the survey record as laid down by the two judgments referred to above, which goes to the root of the matter and clearly discloses an error apparent on the face of record. Therefore, in my considered opinion, on this ground alone, the review application is liable to be allowed.

Since I am not inclined to dispose of the Writ Petition on merits while deciding the review application, I do not deem it appropriate to deal with the rival submissions on merits. I propose to allow the review application and fix Writ Petition No. 322/2009 for admission by recalling the order dated 5th October, 2009.

In so far as the authorities relied upon by Mr. Thali are concerned, none of them advances the case of the respondents.

In the case of Meera Bhanja (supra) relied upon by Mr. Thali, the Apex Court has held that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 of C.P.C.

In the case of Persion Devi (supra), the Apex Court has held that in order to succeed in an application for review, the party has to make out a case of failure of justice. In the present case, the learned Single Judge has set aside the order passed by the lower appellate Court without considering the effect of the two judgments referred to by the lower appellate Court and relied upon by the applicant. Hence, a clear case of failure of justice is made out.

In the case of Rajkumar Chourasia (supra), the Division Bench of this Court has held that a decision erroneous in law is certainly no ground for order under review. A mere conflict or divergence of opinion cannot amount to an error apparent on the face of record.

None of the authorities relied upon by Mr. Thali advances the case of the respondents having regard to the factual position in the present case.

In view of the above, since the application is liable to be allowed on the first ground, I do not deem it necessary to refer to the other two grounds. Needless to mention that all the contentions of the parties on merits are kept open. In the result, therefore, the review application is allowed. The judgment and order dated 5th October, 2009 passed by the learned Single Judge in Writ Petition No. 322/2009 is recalled and Writ Petition is ordered to be fixed for admission on 30th June, 2011. The parties to bear their own costs.