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Judgment
D. Das, J
The unsuccessful appellants of the second appeal i.e. R.S.A. No. 17 of 2007 have filed this application under section 114 read with order 47 rule 1
of the Code of Civil Procedure (for short, hereinafter called ‘the Code’) for review of the judgment passed by this Court on 18.11.2015 in the
said appeal.
The factual background of the matter on hand is that one Bramhananda Bhuyan, the grandfather of the present petitioner no. 1 and 2 and father of
petitioner no. 3 had filed the suit i.e. C.S. No. 53 of 2003 against the opposite party arraigning him as sole defendant for the relief of permanent
injunction restraining him from interfering with his peaceful possession over the land described in schedule-A of the plaint measuring an area of
Ac.0.57 decimals under two plots in one Khata in mouza Sainda under Cuttack Sadar Police Station in the District of Cuttack.
The suit being dismissed, the said plaintiff namely, Bramhananda Bhuyan was thus non-suited. Being aggrieved by the same, he preferred appeal
under section 96 of the Code. The original appellant having died, these petitioners with the father of the petitioner no. 1 and 2 prosecuted the said
appeal till its culmination The appeal did not yield any fruitful result for them in obtaining the relief claimed therein. So, they carried further appeal
under section 100 of the Code which has been disposed of by judgment dated 18.11.2015 which is sought to be reviewed through the present
application.
For the sake of convenience and in order to avoid confusion, the parties herein after have been described as per their assigned status in the suit.
The review petitioners are the plaintiffs whereas the opposite party is the defendant.
I have heard Mr. B.H. Mohanty, learned Sr. Counsel for the petitioners (plaintiffs) and Mr. S.P. Mohanty, learned Counsel for the opposite party
(defendant). I have carefully gone through the judgment rendered by the trial court, first appellate court as also this Court which is in question.
At this stage, the settled position of law as regards the scope of review within the ambit of the provision of section 114 read with order -47 rule 1 of
the Code has to be first kept in view. It is the settled law that review is not like adjudication of the case on merit as like exercise of power in seisin of
appeal. In exercise of power of review, the Court may correct patent errors apparent, on the face of the record, resulting in miscarriage of justice or
violation of the principle of natural justice. Application for review is by no means an appeal in disguise and there remains no scope for re-adjudication
or reconsideration of the decision in the absence of error apparent on the face of the record.
It would be appropriate to note that section 114 read with order 47 rule 1 of the Code prescribes the limitation for entertaining a review application.
The limitations are that the parties filing the application for review has discovered a new important matter or evidence after exercise of due diligence,
which was not within his knowledge or could not be produced by him at the time when the decree or order was passed, or on account of some
mistake or error apparent on the face of record or “for any other sufficient reasonâ€. The expression “any other sufficient reason†as
contained therein, means sufficient reason which was analogous to those specified immediately to it in the provision of said order -47 rule 1 of the
Code.
(A). Learned Sr. Counsel for the petitioner submitted that viewing the factual aspects of the case, the lower appellate court’s conclusion has
been reflected by this Court in para-5 of the judgment which is as under:-.
(a) “In appeal, the lower appellate court on independent analysis of evidence in the touchstone of the rival pleadings having arrived at a finding that Paramanda
was not adopted by Madhu Dalei has concurred with the finding of the trial court. Consequently, the finding on the next issue as stated above has also been
concurred in view of the settled position of law.â€
He then placed paragraph 9(ii) of the judgment of the first appellate court which runs as follows:-
(b) “(ii) However, it is seen that while in Record of Rights, Ext.D, E, F, G and H late Paramananda has been shown as the son of Kashi, the Record of Rights, Ext.3,
Ext.4 the Sale-Deeds, Ext.6 and 7 reveals that Paramananda Dalei has been shown as the son of Madhu Dalei. Besides while Exts. A, D, E, F, G, H, J, K, 2, 6 and 7 the
title of Paramananda has been recorded as ‘Bhuyan’, the Exts.1,3,4,5 the title of Paramanda has been indicated as Dalei. Under such circumstances it has been
admitted by the mother of the Defendant as per Ext.5 that Paramananda was the adopted son of Madhu Dalei. TheDefendant, who has come to the court in the shoes
of his mother, is now stopped to say that Paramananda had never been adopted, as per the provision made under section 31 of the Evidence, which envisages that
admissions are not conclusive proof of the matter admitted, but they may operate as estoppels.â€
It was thus submitted that there surfaces the error apparent on the face of the record.
(B). He next submitted that inspite of the fact that so called deed acknowledging adoption had not been produced and the original plaintiff himself has
not been examined, the appellate court had held in favour of adoption relying on other documents and on preponderance of probabilities and this Court
has noted that in pagraph-9 of the judgment which is the following:-
“(c) “To strengthen my view, I also find that the Plaintiff has restrained himself to be examined himself (sic) lest he may face cross-
examination regarding death of Kashi as in the said adoption deed, which has been dealt in the order Ext.5, passed by the Deputy Director of
Consolidation. Thus, I have got nothing but to hold that Kashi had not given Paramananda to Madhu Dalei in adoption.â€
So, this is said to be another error apparent on the face of the record.
(C). He submitted that the conclusion arrived at by this court that inspite of adoption, Paramananda retains his interest in the property in that family
banking on section 12(ii) of the HAMA when actually it speaks of self acquired property and not joint family property whereas the suit land is an item
of joint family property. So, it is submitted that this is again another error apparent on the face of record.
(D). It was next submitted that no doubt plaintiff has not produced the so called deed acknowledging the adoption which is in relation to the
Paramananda’s adoption without the proof that said document having come to the custody of the plaintiff or when even he was not called upon to
produce the same, if any, under order 11 of the Code, the Court by drawing an adverse inference committed an error touching the root.
(E). He lastly submitted that the adverse view taken by the court for the non-appearance of the plaintiff in the witness box, is also an error touching
the root since here it is on account of faulty legal advice and thus ought not to have been so seriously viewed and these petitioners who are the
successors in interest of the original plaintiff ought not to have been made to suffer for the fault of the conducting counsel in the trial court in not
properly advising the right step to the original plaintiff.
Mr. P. Mohanty, learned counsel for the opposite party submitted that the grounds urged by the petitioners in that review petition and reiterated in
course of hearing do not fall within the sweep of “the error apparent on the face of the record†and those are all conscious finding. It was also
submitted that the judgment having been passed after consideration of the arguments made by the learned counsels; this Court could not be further
engaged to delve the points advanced in the application for review of the judgment as it would amount like exercising the power as if in seisin of an
appeal.
On the rival submission, let us now examine whether the grounds taken in the review petition for review of the judgment dated 18.11.2015 as also
reiterated in course of hearing are legally sustainable.
In paragraph-5 of the judgment, this Court in second sub-paragraph has just noted as what the lower appellate court has found in the matter of
adoption of Paramananda. Fact remains, that the lower appellate court has found that Kashinath had not given Paramanda in adoption to Madhu Dalei
[(last line of paragraph-9(i)]. The view taken by the lower appellate court as at paragraph-9(ii) of the judgment has not been approved by this Court by
assigning appropriate reasons which are no more open to be examined as tenable or not when those are not said to be perverse. So, there this Court
finds no such error apparent on the face of the record.
The next submission relating to non-production of the deed of acknowledgement of adoption and non-examination of the plaintiff leading to drawal of
adverse inference on the case of plaintiff cannot be said to be the error apparent on the face of the record.
So far as the submission as to the application of provision of section 12 of the HAMA is concerned, this Court has not expressed the view and that
was the view taken by the lower appellate court which has not been given the seal of approval so as to stand against the petitioners and has rather
been ignored in view of the discussion of evidence in the touchstone of the pleading in the approving ultimate result in non-suiting the plaintiff.
For all the aforesaid, this court finds that no case for review is made out.
The review application is accordingly dismissed. No order as to cost.
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