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NAV NEET KUMAR AND ANOTHER versus KASHMIR LAL NARANG AND ANOTHER

High Court of Judicature at Allahabad

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Nav Neet Kumar And Another v. Kashmir Lal Narang And Another - SECOND APPEAL No. 981 of 1999 [2005] RD-AH 5028 (27 October 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

A.F.R.

Court No. 23

Review Application No. 67241 of 1999

In

Second Appeal No. 981 of 1999

Nav Neet Kumar & others Vs. Kashmir Lal Narang  & others

Hon'ble Umeshwar Pandey, J.

Heard Sri V.P. Varshney, learned counsel appearing for the appellants-applicants.

This review petition has been presented by the appellants of Second Appeal No. 981 of 1999 against the judgment and order dated 23.8.1999 passed by this court dismissing the appeal at the admission stage on the ground that there was no substantial question  of law arising and requiring to be decided in the appeal.

The parties had dispute in regard to a plot of land. The plaintiffs claim their title on the basis of a will executed by the defendant No. 1, who had died during the pendency of the suit. The defendants Nos. 11, 12 and 13 are sons of defendant No. 1. The plaintiffs' grand father, Sant Lal was co-tenure holder of this disputed land along with his brother Narayan Das, both having equal shares each. Sant Lal executed a will dated 15.5.1982 in respect of his share in the immovable property in favour of defendant. Maya Devi, who was given life interest in the said property and it is provided that on her death the plaintiffs would become full owner of the property in question. Sant Lal died on 28.7.1982. The name of defendant No. 1 had been mutated in the record on the basis of the aforesaid will. Some part of the disputed plot had been earlier sold by Sant Lal and his brother over which some construction had been raised by the transferee, the defendant No. 3. The defendant No. 1 Maya Devi had sold the remaining part of the disputed plot to the defendant Nos. 3 to 10 after the death of Sant Lal. It is also the pleading of the plaintiffs that the defendants had colluded with each other and have fabricated a forged will of Sant Lal. The sale deed executed by Maya Devi, the defendant No. 1 was in fact, void and she had no absolute right In the plot.

This suit of the plaintiffs appellants was contested by the defendant No. 1 inter-alia pleading that the will dated 15.5.1982 was executed in her favour giving absolute right in the property on the death of Sant Lal. She acquired that right after Sant Lal had expired and the will, which has been put forward by the plaintiffs, was pleaded to be ingenuine. Her name was mutated over the disputed plot on the basis of the will. The original will was in possession of her son Kashmir Lal (father of the appellants-plaintiffs) and thus, the father and the sons are taking undue advantage. They have set up a forged will.

In the light of the aforesaid cases taken by the parties, the trial court after having recorded the evidence was of the view that the will set up by the plaintiffs was ingenuine. The plaintiffs' suit was thus, dismissed by the trial court.

The appeal preferred by the plaintiffs before the 1st Appellate Court was heard and the lower appellate court, after taking into consideration the entire evidence recorded, was also of the same view and concurred with the findings recorded by the trial court; as such, the appeal of the plaintiffs was dismissed. It is against this first appellate judgment that the second appeal was filed before this court in which by the order under review, the learned single Judge found that the findings recorded discarding the evidence advanced from the side of the appellants plaintiffs by both the courts below was such, which did not require any interference rather no substantial question of law was consequently available in this appeal under Section 100 C.P.C. for decision. The attesting witnesses of the will upon which the plaintiffs-appellants placed reliance had been disbelieved by both the courts below. The other circumstances appearing in the case were taken into consideration by the learned Judge while dismissing this second appeal and elaborate findings have been recorded in respect thereto in the judgment under review.

Learned counsel appearing for the appellants, Sri V.P. Varshney, has arguned that the learned Judge before dismissing this second appeal should have gone into question of the propriety of the reasonings given by both the courts below for rejecting the evidence and disbelieving the evidence of the attestator  of the will. In support of this argument he has placed reliance upon the case law of Major Singh Vs. Rattan Singh (dead) by L.Rs. & ors., JT 1997 (1) S.C. 404.

In the said case, the Hon'ble Apex Court while upholding the decision given by the High Court in such a case of will, has found that the High Court had rightly gone into the question for testing reasonings given by both the courts below for rejecting the will on flimsy grounds. In the present case, a perusal of the order under review, it is found that the learned Judge, while dismissing  the appeal at the admission stage, has recorded elaborate findings supporting the reasons given by the courts below for not placing reliance upon the evidence of the attesting witnesses of the will relied upon by the plaintiffs-appellants. The other reasons which were given by the courts below for rejecting the will so relied upon by the plaintiffs have also been elaborately discussed in the judgment of the learned Judge and it cannot be said that the appellants' appeal has been dismissed by the order under review, just cursorily. The order dated 23.8.1999 on perusal as a whole is not found to be having mistake or error apparent on the face of record. The review petition under Order XLVII, Rule-1 can be allowed only in case the conditions, as provided in the aforesaid provision, are present. The Order XLVII, Rule-1 for ready reference is reproduced as below:-

"1. Application for review of judgment.- (1) Any person considering himself aggrieved,--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which  no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

From the aforesaid provision, it is evident that the review petition is maintainable only if the person aggrieved with the order has discovered new and important matter of evidence which, after the exercise of due deligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, which may justify the review of said judgment of the court.

The judgment under review rendered by the learned Judge, as observed above, does not appear to have any self evident error or any mistake apparent on the face of the record.

The Apex Court in Persion Devi Vs. Sumitri Devi, (1997) 8 SCC 715, has very clearly laid down that the 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 C.P.C. It is not permissible for an erroneous decision to be reheard and corrected under the aforesaid Order 47, Rule 1 C.P.C. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter can only be corrected by exercise of the review jurisdiction. Thus, the Hon'ble Court has held that a review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".

In the aforesaid context reliance is also placed upon the case law of Thungabhadra Industries Ltd. Vs. Govt. of A.P., AIR 1964 S.C. 1372, Meera Bhanja Vs. Nirmala Kumari Choudhury, (1995) 1 SCC 170 and Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma, (1979) 4 SCC 389.

Learned counsel for the appellants has tried to find one or the other fault with the order of the learned Single Judge under review and this court in the present petition having limited jurisdiction to interfere under Order 47, Rule 1 C.P.C., cannot precisely go to appreciate those submissions of the learned counsel. The learned Judge, after due discussion of the circumstances prevailing in the case for dismissal of the suit by both the courts below, has found that the second appeal did not have any leg to stand and as such, no substantial question of law having arisen in the appeal the same has been dismissed at the admission stage itself. Obviously, this review petition does not appear to have any force and is without merit, as such it is hereby dismissed.

27/10/2005

gp/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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