Sankar Kumar Mondal vs Smt. Latika Rani Sarkar and Others

Kalidas Mukherjee, J.—This Review Application has been filed by the petitioner of the Revisional Application in C.O. No. 529 of 2008. The Revisional Application was filed by the defendant. It was alleged in the application that the O.P. being the plaintiff filed a suit for declaration and permanent injunction against the petitioners being T.S. No. 34 of 1996 in the Court of learned Civil Judge (Junior) Division, 1st Court, Baruipur. The petitioner being the defendant entered appearance along with other O.Ps. Soleman Gazi sold 171/2 decimals of land to the plaintiff and the defendant separately by separate deeds with specific demarcations mentioned in the schedule of the deed, although, he had 161/2 decimals of land. It was averred in the Revisional Application that it became implied that at least there was some encroachment on somebody''s land, although, that might be unintentional and the petitioner in the Revisional Application filed petition under Order 26 Rule 9 C.P.C. before the learned Court below which was rejected.

The Revisional Application was dismissed after hearing both sides on 23.3.2010. The learned Counsel appearing for the petitioner submits that there was real encroachment and not merely apprehension of encroachment. The leaned Counsel has referred to the decision reported in Vaithinattar and Janardhanan Vs. Sakkubai Ammal,

The Revisional Application was disposed of considering all the points raised by the parties. It was held that the averment made in the Revisional Application that there might be encroachment on somebody''s land, could not be a sufficient ground for passing an order under Order 26 Rule 9 of the C.P.C. It was also taken into consideration that in all the deeds there were specific boundaries mentioned in the schedule. The point raised in the Revisional Application was decided on merits and it cannot be reopened after the disposal of the Revisional Application. The matter which has already been decided on merits cannot be said to be a question of error apparent on the face of the record. The contention of the petitioner raised in the review application is beyond the scope and ambit of Order 47 Rule 1 of the C.P.C.

The Review Application having no merit stands dismissed.

Let a copy of this order be sent to the learned Court below immediately.

Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.