Smt. Naruli Devi, Diwan Singh and Smt. Bhaguli Devi vs Smt. Basanti Tilara, Mahendra Singh and Sarvjeet Singh

Rajesh Tandon, J.—Heard Sri U.P.S. Negi, Advocate for the review applicants and Sri C.M. Shah, counsel for the respondents.

Present review application has been preferred by the appellants for review of the order dated 4.5.2007 passed in Second Appeal No. 1157 of 2001, summarily dismissing the appeal as no substantial question of law in the second appeal was found.

The review applicants have moved the present review application on the ground that the appellants have framed as many as six substantial questions of law in the memo of appeal but none of them has been considered by this Court at the time of deciding the second appeal. The review applicants have further framed as many as six entirely different substantial questions of law and have prayed that the same may be considered at the time of hearing of review application.

The following new substantial question of law has been framed:

a. As it emerges from the record and findings recorded by the Courts below that the respondents in this Appeal were not recorded owners of the disputed land. The disputed land is recorded in the name of Diwan Singh and his brother, thus the respondents being unrecorded have no right and title over the suit land and no injunction could have been granted in their favour and against the defendant Diwan Singh/applicant who is recorded owner of the suit land and has right and title over the suit land.

b. That it was in the pleadings of the applicant/petitioner that the Civil Court has no jurisdiction to decide the case and both the courts below have not decided this issue in consonance with the prevailing legal position that if the plaintiffs are unrecorded in other word if the disputed land is not recorded in the name of the plaintiffs in the revenue records suit for injunction in the civil court is not maintainable and it should be filed in the Revenue Court This was a very material issue, which this Hon''ble Court has not decided while passing the impugned judgment.

c. That both the Courts below have perversely decided the question of inheritance and succession of the property of Ratan Singh, Smt. Radhika and Smt. Mohini Devi. The view of the Courts below was absolutely illegal and perverse while interpreting the provision of Section 174 of U.P.Z.A. & L.R. Act 1950. It was the material point, which was required to be decided in the light of Section 174 of U.P.Z.A. &L.R. Act, but this has not been decided.

d. That it is admitted toa the parties that Smt. Radhika dna Smt. Mohani were found murdered on the same day some times in 1987. It is also emerges from the record that Smt. Radhika and Smt. Mohani got disputed lad on the basis of the Will said to have been executed by Sri rattan Singh in their favour. Even if the property in dispute is to be deemed sefl acquired property of Smt. Radhika Devi after her death the succession opened u/s 174 of Z.A. & L.R. Act and Dewan Singh and his two brothers Anand Singh and Kunwar Singh were entitled to succesed the said property being son''s son of Smt. Radhika and Ratan Singh. The plaintiffs have no right to the property. Not only this Smt. Naruli Devi Appellant being the widow of predeceased son Nathu Singh s/o Radhika and Ratan Singh is also entitled to the dispute property as per provision laid down in Section 174 of U.P. Z.A. & L.R. Act, 1950.

e. As regards to the half share of Smt. Mohani the aforesaid property given to her in the Will was to be given to Sri Diwan Singh as per terms of the Will. It is important to metion that only life interest was created in favour of Smt. Mohani over the property in suit, even otherwise, the succession of her property was open u/s 174 of Z.A. & L.R. Act and the applicant/Diwan Singh, Anand Singh and Kunwar Singh being Mohani''s brother''s sons were entitled to inherit the said property and rightly recorded in the revenue records.

f. That the applicant/appellants are poor cultivators and they are legally entitled of the suit property and this property is rightly recorded in the names of Diwan Singh and his brothers and the plaintiffs have no right to the suit property and these points have not been considered in the impugned judgment of this Hon''ble Court as well as the judgments of courts below. These points being substantial question of law requires determination by this Hon''ble Court and in view of this it is a sufficient ground for reviewing the impugned judgment and decree.

So far as, the merit of the review petition is concerned, the review petition can be filed only for consideration of important matters or evidence which, by mistake or error on the face of the record could not be considered when the order was passed.

A review petition cannot be filed for re-hearing of the entire matter by changing the counsel as well.

The Hon''ble Apex Court in the case Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, has observed as under:

It is well-settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so: Sajjan Singh v. State of Rajasthan. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the Court will review its judgment: G.L. Gupta v. D.N. Mehta 15. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice: O.N. Mohindroo v. Distt. Judge, Delhi. Power to review its judgments has been conferred on the Supreme Court by Article 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Article 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in Order 47 Rule 1 of the Code of Civil Procedure, and in a criminal proceeding on the ground of an error apparent on the face of the record (Order 40 Rule 1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except "where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility": Sow The Ahmedabad Municipal Corporation and Others Vs. Ramanlal Govindram and Others, .

In the case Parsion Devi and Others Vs. Sumitri Devi and Others, Hon''ble Supreme Court has held that while exercising power under Order XL VII Rule 1 of the CPC it is not permissible for erroneous decision to be re-heard and corrected and the power of review cannot be exercised to be an appeal in disguise. Hon''ble Supreme has observed as under:

It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (SCR at p. 186) this Court opined:

What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an ''error apparent on the face of the record''). The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an ''error apparent on the face of the record'', for there is a distinction which is real, though it might not always be capable of exposition, between a mere-erroneous decision and a decision which could be characterised as vitiated by ''error apparent''. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

Under Order 47 Rule 1 CPC a judgment may be open 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 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise".

In the case Union of India v. Paul Manicram AIR 2003 SC 4622 the preposition of law discussed as above has been consistently upheld by the Apex Court.

As noted supra, for the first time in the review application it was disclosed that the representation was made to the President of India and no representation was made to the State of Tamil Nadu or the Union of India who were arrayed in the writ petition as parties. This appears to be a deliberate attempt to create confusion and reap an undeserved benefit by adopting such dubious device. The High Court also transgressed its jurisdiction in entertaining the review petition with an entirely new substratum of issues. Considering the limited scope for review, the High Court ought not to have taken into account factual aspects which were not disclosed or were concealed in the writ petition. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the court has to take serious note of unclean approach. Whenever a representation is made to the President and the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically, and not in the manner done in the case at hand. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but the day-to-day administration at respective levels is carried on by the Heads of the Departments/Ministries concerned and the designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or was interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the real authorities concerned and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly immediately concerned with such consideration.

Much stretch has been given by the Counsel for the review applicant on the point that in view of section 174 of Z.A. & L.R. Act, the property is devolved in favour of the appellants. The property in suit devolved in favour of Smt. Radhika Devi and Suit. Mohani Devi by operation of the Will dated 28.11.1979, executed by Sri Ratan Singh in respect of 100 nalies of land lying in Devagarh tok. Smt. Radhika Devi was his first wife and Smt. Bachuli Devi was his second wife. Smt. Mohani Devi was his daughter born from Smt. Radhika Devi. Mutation had also taken place in the names of Smt. Radhika Devi and Smt. Mohani Devi. Other land of Sri Ratan Singh was entered in the Khatauni in the name of his grandson Diwan Singh, who is the grand son of Smt. Bachuli Devi. Thus Sri Ratan Singh diverted his land to the progenies of his two wives. After the murder of these two ladies namely Radhika Devi and Mohani Devi the land devolves in the names of Radha bis and Basanti Tilara who are the sisters of Smt. Mohani Devi and daughters of Smt. Radhika Devi. Thus no provision of U.P. Z.A. & L.R. Act has been flouted in the case.

The trial Court and first appellate Court have considered this issue in detail and I find no illegality and infirmity in the findings arrived at by the two courts below.

In the present review application the review applicants have sought reconsideration of the order passed by this Court and prayed for considering the entirely new substantial questions of law framed by the applicants in the review application. Arguments of counsel for the appellants as well as the respondents were heard and considered at the time of admission of the second appeal by this Court and by way of a comprehensive and conclusive order; the appeal was dismissed as no substantial question of law was found.

The power of review cannot be exercised as an alternative mode of appeal or to permit the parties to provide another opportunity of hearing on merit, more so when the grounds taken by the review petitioner in the review application have already been discussed and considered on merit.

This Court lacks jurisdiction to interfere with the impugned judgment and order and cannot act as a Court of appeal in the review application.

In view of the above, the review petition is dismissed with costs.