Sri R.N. Rajanna vs R.N. Jayanth

B.S. Patil, J.—This review petition is filed under Order XLVII Rule 1 of CPC seeking review of the judgment dated 20.02.2013 passed by this Court (Hon''ble Mr. Justice Subash B. Adi, as he then was) in R.F.A. No. 1636/2005 connected with R.F.A. No. 1637/2005. The said two appeals arose out of the common judgment passed in two suits viz., O.S. No. 9/2004 filed by the respondent herein, and O.S. No. 132/2003 filed by the review petitioner. O.S. No. 9/2004 was for a decree of permanent injunction to restrain the defendant-review petitioner herein from interfering with his possession and enjoyment of the suit schedule property bearing Sy. No. 186/2 measuring 1 acre 10 guntas situated at Rajaghatta village, Kasaba Hobli, Doddaballapur Taluk. O.S. No. 132/2003 was filed by the review petitioner against the respondent herein seeking declaration that he was the absolute owner of the suit schedule property bearing Sy. No. 186/2 measuring 1 acre 27 guntas situated at Rajaghatta village, Kasaba Hobli, Doddaballapur Taluk and also for permanent injunction.

Plaintiff in O.S. No. 9/2004 traced his right over 1 acre 10 guntas of land in Sy. No. 186/2 to a family partition dated 26.12.1967, wherein his father R.N. Nanjundappa got 2 acre 20 guntas. Thereafter, his children i.e., plaintiff and his brother R.N. Sathish got the 2 acres 20 guntas of land divided vide partition effected on 26.04.2002, thereby plaintiff got 1 acre 10 guntas. He contended that the khatha was changed in the name of his father earlier by virtue of family partition dated 26.02.1967 in respect of 2 acres 20 guntas of land and subsequently in favour of himself and his brother in respect of 1 acre 10 guntas each as per the partition effected on 26.04.2002. He alleged interference by the defendant over the said portion of 1 acre 10 guntas of land, which according to him compelled him to file the suit for permanent injunction.

Plaintiff in O.S. No. 132/2003 contended that as per the unregistered deed dated 26.12.1967, R.N. Nanjundappa-father of the respondent herein was given only 1 acre 20 guntas and the remaining extent was retained by his another brother Mruthyunjayappa. He further contended that the said Mruthyunjayappa executed a sale deed in favour of the review petitioner to an extent of 1 acre of land in Sy. No. 186/2. However, as per the actual possession of the property, the review petitioner-plaintiff in O.S. No. 132/2003 claimed that he was in possession of land to an extent of 1 acre 27 guntas. Accordingly, he sought for declaration of title over the same and for injunction.

The Trial Court dismissed O.S. No. 9/2004 filed by the respondent herein and partly decreed the suit O.S. No. 132/2003 filed by the review petitioner herein granting permanent injunction against the respondent herein in respect of the suit schedule property measuring 1 acre 27 guntas.

Aggrieved by the common judgment passed in these two suits, respondent herein had preferred two appeals in R.F.A. No. 1636/2005 and R.F.A. No. 1637/2005.

The matters came up for hearing before this Court on 28.02.2013. As can be seen from paragraph 8 of the judgment under review, arguments were advanced by the Counsel for both parties at length. During the course of arguments, it was submitted before the Court by the learned Counsel for the parties that as per the registered sale deed under which the defendant/review petitioner claimed the extent of land purchased by him was 1 acre only, but in the schedule to the plaint in O.S. No. 132/2003, plaintiff had claimed 1 acre 27 guntas. The said extent was claimed in Sy. No. 186/2 by furnishing specific boundaries. The said schedule did not tally with the schedule shown in the sale deed-Ex. D-11 under which the review petitioner had purchased the property from Mruthyunjayappa. This Court also noticed that even in respect of this 1 acre of land, there was a dispute regarding the very title of Mruthyunjayappa.

In the context of these facts and circumstances, learned Counsel for the defendant (review petitioner herein) had submitted that though in the suit defendant had claimed 1 acre 27 guntas, he would, however, confine his claim to 1 acre as shown in the schedule to the sale deed which would be subject to the final decree that would be drawn in O.S. No. 123/2004 filed by one Rachappa S/o Patel Nanjappa seeking partition and separate possession in respect of property bearing Sy. No. 186/2, which was pending in appeal in R.A. No. 36/2010 before the District Court. Noticing this aspect of the matter and placing on record the submission made by the learned Counsel for both parties, this Court has come to the conclusion that in view of the submission made by both the Counsel, decree of injunction granted in favour of the review petitioner in respect of 1 acre 27 guntas of land be confined to 1 acre as shown in the sale deed-Ex. D-11 under which the review petitioner had purchased the property.

In so far as the remaining area was concerned, plaintiff�s possession was protected by granting a decree of permanent injunction. It was also made clear that the injunction granted in favour of the review petitioner would be operative till the final decree proceedings in O.S. No. 123/2004 were completed. Accordingly, plaintiff in O.S. No. 9/2004 i.e., the respondent herein was held entitled for a decree of permanent injunction in respect of land comprised in Sy. No. 186/2 excluding the portion of 1 acre as per the schedule mentioned in the registered sale deed-Ex. D-11. The schedule in Ex. D-11 is also extracted in the operative portion of the judgment. It is further made clear in the judgment, that in case the plaintiff-respondent in this review petition finds that the review petitioner was in possession of more than 1 acre of land, it would be open to the plaintiff/respondent herein to get the land surveyed and to get the boundaries fixed to the extent of 1 acre as per Ex. D-11 and for the remaining extent over and above 1 acre, plaintiff was held entitled for a decree of permanent injunction.

Thus, as per paragraph 11 of the judgment of this Court, it is clear that the Counsel for the review petitioner submitted before this Court after the arguments were heard, that although the review petitioner had claimed 1 acre 27 guntas, he would confine the claim to 1 acre as shown in the schedule to the sale deed-Ex. D-11 which would also be subject to the final decree that would be drawn in O.S. No. 123/2004. In paragraph 14, again reference is made to the submission made by the Counsel for the review petitioner to the effect that injunction in favour of the defendant be confined to 1 acre as per Ex. D-11 and for the remaining area, plaintiff be granted a decree of permanent injunction. It is thus clear that this Court has disposed of the two appeals granting relief to both parties as per the submission made by the learned Counsel for both parties which is indeed consistent with the title deed of the review petitioner under which he had purchased 1 acre of land as per Ex. D-11.

It is relevant to notice that the judgment under review has been dictated in the open court specifically recording the submission made by the Counsel for both parties. After a lapse of nearly more than a month from the date of judgment, the review petitioner has filed this review petition contending inter alia that even though the sale deed-Ex. D-11 reflected only 1 acre of land in Sy. No. 186/2 as having been transferred to the review petitioner, actually he was in possession and enjoyment of 1 acre 27 guntas of land, which was indeed accepted by the Trial Court, but this Court. without considering the pleadings and the evidence on record adjudicated the matter taking into consideration only the sale deed and ignoring the other material aspects, thereby recording a finding that the review petitioner was entitled for injunction in respect of 1 acre of land. It is further urged that this Court was carried away by the discrepancy in the boundaries shown in Ex. D-11 and the boundaries shown in the plaint in O.S. Nos. 132/2003 by the review petitioner, without noticing the fact that the boundaries in Ex. D-11 were given in respect of Sy. No. 186/2 and also the portion of land in Sy. No. 187/1.

In so far as the submission made by the Counsel for the review petitioner before this Court requesting the Court to confine the decree of injunction as granted by the Trial Court to an extent of 1 acre of land comprised in Ex. D-11 purchased by the petitioner, in paragraph 9 of the review petition, it is stated as under:

The submissions made by the Counsel to the petitioner have been misconstrued, which has resulted in the observations found in para 11 of the judgment. Hence, there is an apparent error on the face of the record.

I have heard the learned Senior Counsel appearing for the review petitioner as well the learned Counsel appearing for the respondent at length.

Mr. Uday Holla, learned Senior Counsel for the review petitioner has contended that it was the duty of this Court to frame the points for consideration while disposing of the Regular First Appeal and consider the said points referring to the evidence on record, but the judgment under review does not disclose any such points framed let alone consideration of the evidence. He draws support from the judgment of the Apex Court reported in the case of H. Siddiqui (dead) by L.Rs. Vs. A. Ramalingam, . He also places reliance on the judgment in the case of The Selection Committee for Admission to the Medical and Dental College, Bangalore Vs. M.P. Nagaraj, , to urge that if such judgment of the Supreme Court is over looked it would be a ground for review.

This contention cannot accepted for the simple reason that if the judgment under review is carefully gone through, it becomes clear that after the matter was heard at length, learned Counsel for both parties came up with certain suggestions and submissions which according to them safeguarded the interest of their clients, as the possession of both the parties were protected in the manner suggested by them, it was not at all necessary to frame the points for consideration and to return findings on each point by referring to the evidence on record.

Another judgment in the case of Sri Swami Krishnanand Govindanand Vs. M.D. Oswal Hosiery (Registered), , is relied upon by Mr. Holla, to contend that the admission made by the Counsel cannot be made basis for passing an order and the same would not be binding.

I have carefully gone through the aforesaid judgment. The facts involved in this case were that the landlord of the suit premises which was a registered society under the Societies Registration Act, had filed an application against the tenant for his eviction under Clause (d) of Section 22 of the Delhi Rent Control Act, 1958, on the ground that the premises was required bona fide for furtherance of its activities. In the written statement, the tenant denied the assertions made with regard to the appellant being an institution within the meaning of the provisions of the Act and its bona fide requirement for its activities. When the case was posted for trial before the Additional Rent Controller, the learned Counsel appearing for the tenant/respondent conceded the fact disputed by the respondent in his written statement. Recording the statement of the Advocate appearing for the tenant the Additional Rent Controller, proceeded to hold that as the Counsel had admitted the ground of eviction and also the fact that appellant was a public charitable institution including the bona fide requirement, the eviction application filed by the landlord deserved to be allowed.

When the matter came up before the Apex Court, the Apex Court had this to say in paragraphs 3 & 4 of the aforementioned judgment.

Mr. Jaspal Singh, learned Senior Counsel appearing for the appellant has vehemently contended that statement made by the learned counsel of the respondent across the Bar is indeed an admission of the party and, therefore, the Additional Rent Controller recorded his satisfaction on the basis of the admission; the order of the Additional Rent Controller cannot thereby be treated as being without jurisdiction. Whether the appellant is an institution within the meaning of Section 22 of the Act and whether it required bona fide the premises for furtherance of its activities, are questions touching the jurisdiction of the Additional Rent Controller. He can record his satisfaction only when he holds on these questions in favour of the appellant. For so holding, there must be material on record to support his satisfaction otherwise the satisfaction not based on any material or based on irrelevant material, would be vitiated and any order passed on such a satisfaction will be without jurisdiction. There can be no doubt that admission of a party is a relevant material. But can the statement made by the learned Counsel of a party across the Bar be treated as admission of the party? Having regard to the requirements of Section 18 of the Evidence Act, on the facts of this case, in our view, the aforementioned statement of the counsel of the respondent cannot be accepted as an admission so as to bind the respondent. Excluding that statement for consideration, there was thus no material before the Additional Rent Controller to record his satisfaction within the meaning of clause (d) of Section 22 of the Act. It follows that the order of eviction was without jurisdiction.

The learned Counsel next contended that the statement of the learned counsel for the respondent should be treated as a compromise as the Court granted five years� time to the respondent for vacating the suit premises. In our view, this contention has to be rejected. The compromise like a contract postulates consensus between two parties. A statement of a counsel conceding the grounds of eviction and seeking some time for the respondent to vacate the premises, cannot be termed a compromise.

As is clear from the above decision, the Apex Court has clearly held that the twin factual controversies on which the admission was made by the Counsel for the tenant (regarding the nature of Institution and the bona fide requirement of the premises for furtherance of the activities of the Institution) were questions touching the jurisdiction of the Additional Rent Controller, on which he could have recorded his satisfaction only after he had found the answers in favour of the landlord. For that purpose, there ought to have been material on record to support his satisfaction. Otherwise, the satisfaction would not be based on any material and would get vitiated resulting in an order being passed without jurisdiction. It is in this background by specifically pointing out that on the facts of the said case, the statement made by the Counsel for the parties could not be accepted as admission so as to bind the tenant has been laid down.

In the facts of the present case no such admission pertaining to the facts relating to the jurisdiction of the Court has been made. The facts involved in the present case as adverted to above are totally different. Therefore, this decision has no application to the present case.

Smt. S.K. Nagarathna, learned Counsel for the respondent strongly refutes the contentions urged by the learned Senior Counsel appearing for the review petitioner and the grounds urged in the review petition, by contending inter alia that she herself had argued the appeals before the learned Judge and that the learned Judge had disposed of the appeals only after the Counsel for the review petitioner had conceded his claim to 1 acre as shown in the schedule to the sale deed-Ex. D-11. Therefore, the arguments advanced by the review petitioner cannot be a ground to review the judgment under challenge and hence, the review petition has to be dismissed with exemplary costs.

What submission the learned Counsel for the review petitioner had made and how the same has been misconstrued is not at all forthcoming in the review petition. The affidavit filed by the Counsel virtually disowns that he had made any such submission. If really it was the case of the review petitioner that his Counsel had indeed made some submission suggesting/proposing a solution to the dispute and the same had been misconstrued by this Court while dictating the judgment, nothing prevented the learned Counsel to immediately bring it to the notice of the Court when the judgment was dictated requesting the Court to correct the mistake. Though the judgment was dictated in the open court in the presence of the Counsel who represented the review petitioner, no such attempt has been made nor has it been stated now before this Court in the review petition or during the course of arguments as to what submission was made by the Counsel before the Court and how the court misconstrued the same. When specific observations are made in the judgment rendered by this Court by referring to the submission made by the learned Counsel for the review petitioner, whereunder he had requested for confining the grant of permanent injunction to an extent of 1 acre of land purchased by the review petitioner as per the registered sale deed, it is not open for the review petitioner to now resile from the said stand alleging and attributing misinterpretation of the submission made by the Counsel. When the record of the court is clear and when the review petitioner is unable to show how and under what circumstances such alleged misconstruction of the submission of the Counsel for the review petitioner has crept in, it is impermissible for me to review the judgment passed by the learned brother Judge.

If the contention of the review petitioner is accepted, it would tantamount to holding that the Counsel for the review petitioner had not made any such statement confining his prayer for permanent injunction to 1 acre of land and that this Court has, on its own, proceeded to record so while disposing of the two appeals. This will lead to permitting the parties to speak against the record by attributing the non-existent confusion and misconstruction to the Court.

It is well established that the error apparent on the face of the records as stated in Order XLVII Rule 1 would mean an error which strikes one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. This has been succinctly laid down in the case of Meera Bhanja Vs. Nirmala Kumari Choudhury . No such error which strikes on mere looking at the record of this case is made out. Therefore, there is no justification to seek review of the judgment.

In the result and for the foregoing, this review petition being devoid of merits is dismissed. After dictating the order, learned Counsel for the review petitioner seeks interim stay of this order stating that the review petitioner is intending to take up the matter before the Apex Court. I do not find any justification for granting stay of the order passed by me, or for that matter, the judgment under review. Hence, the oral request made is rejected.