Shanti Devi vs Ran Singh

G.C. Garg, J.—Plaintiffappellant Shanti Devi filed a suit for permanent injunction by averring that she is in possession of the suit land as owner and her possession is open, continuous and hostile to the knowledge of all the proprietors of the village and that her possession has ripened into ownership by way of adverse possession. The suit was resisted on the grounds that the plaintiff is neither in cultivating possession of the suit land nor is she the owner thereof and that the land was owned and possessed by the defendants. On the pleadings of the parties, an issue was framed to the effect, whether the plaintiff has become owner of the suit land by way of adverse possession ? OPP

Trial Court came to the conclusion that the plaintiff was in possession of the suit land and it consequently decreed the suit partly and restrained the defendants from interfering in plaintiff''s possession over the suit land forcibly otherwise than in due course of law. Both sides felt aggrieved by the judgment and decree of the trial Court and they filed two separate appeals. Learned Addl. District Judge by his judgment and decree dated 30.9.1996 dismissed plaintiff''s appeal and allowed the appeal of the defendants after coming to the conclusion that the plaintiff was not proved to be in possession of the land in dispute. The suit was consequently dismissed. Second appeal against the judgment and decree of the lower appellate Court was dismissed by this Court on 14.3.1997.

The plaintiff thereafter moved a review application, notice of which was given to the defendantsrespondents. In the application, the plaintiff submitted that the suit land was left by the Muslims and thus it was an evacuee property and therefore, in view of the provisions of Sections 7 and 8 of the Administration of Evacuee Properties Act, the jurisdiction of the civil Court is barred as no civil Court or the revenue Court can entertain any suit or proceedings in which the question involved is whether the property is or is not an evacuee property. Learned counsel for the appellant on the above premises submitted that the defendantrespondents have no right or locus standi to dispossess the plaintiff who is recorded to be in possession since 1974. Learned counsel thus submitted that the property having vested in the Provincial Government, the suit could not be dismissed. Learned counsel for the defendantrespondents, on the other hand, submitted that a bare look on the provisions of Section 100 of the Code of Civil Procedure shows that the jurisdiction of the High Court to entertain the second appeal is confined only to such cases where substantial question of law arises and that the applicant cannot be allowed to set up a new case in second appeal or raising a new issue, not supported by pleadings and evidence on the record. Learned counsel further submitted that the appellant is seeking to raise a question of fact in the second appeal for which there is neither any pleadings nor evidence what to talk of points being raised either before the trial Court or before the lower appellate Court or even at the time of disposal of the second appeal at the motion stage. Learned counsel further submitted that originally the appeal was filed and argued by Mr. Narotam Kaushal Advocate which was dismissed at the motion stage and now the review application has been filed/moved on behalf of the plaintiff through Shri U. D. Gaur, Advocate. He thus submitted that moving of a review application through a counsel other than the one who argued the appeal on merits, has been deprecated by the Supreme Court in Tamil Nadu Electricity Board and another v. N. Raju Reddiar and another, AIR 1997 S.C. 1005 : 1996(3) RCR (Civil) 454(SC) in the following words :

"When an appeal/special leave petition is dismissed, except in rare cases where error of law and fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to note that Court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the bar which has the responsibility to maintain the salutary practice of profession."

Learned counsel thus submitted that the review application, therefore, deserves to be dismissed on this score alone.

On a consideration of the matter and having regard to the facts and circumstances of this case, I am of the opinion that the review application deserves to be dismissed. A simple suit filed by the plaintiffapplicant was that she is the owner in possession of the land in dispute and that she perfected her title to the property by way of adverse possession. As already noticed, the Courts below did not accept the plaintiff''s plea that she has become owner of the property by way of adverse possession. Trial Court had, however, found the plaintiff to be in possession but that finding was reversed by the first appellate Court on appreciation of evidence and it came to the conclusion that the plaintiff failed to prove her possession over the suit land. Second appeal against the judgment and decree of the first appellate Court was dismissed after hearing learned counsel for the parties and after recording that a finding regarding possession of the plaintiff has been arrived at by the first appellate Court on correct appreciation of evidence produced on record. The pleas now sought to be raised do not find mention either in the plaint or in the grounds of appeal before the first appellate Court or the grounds of appeal taken in the second appeal. There is thus no basis for the contention raised now to show that the suit land was left by Muslims and that it vested in the Custodian being evacuee property and therefore, the jurisdiction of the civil Court is excluded. In the absence of any material, the contention which is not based on facts cannot be permitted to be raised in the review application. Besides this, the contention of learned counsel that the Courts should not show any indulgence in the matter of reviewing an order when the review application has been moved by a counsel other than the one who argued the appeal on merits, has force in view of the observations of the apex Court as noticed above in this order. The review application is, therefore, dismissed. Civil Misc. 3567C and 3302C of 1997 also stand disposed of accordingly.