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Smt.Shakooran Begum & Others v. Mohd.Warish & Others - FIRST APPEAL FROM ORDER No. 947 of 1994 [2006] RD-AH 18048 (19 October 2006)


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Court No. 30.

FAFO No. 947 of 1994.

Smt. Shakooran Begum and others              ...      Appellants


Mohd. Waris and others                             ...       Respondents.

Hon. Sunil Ambwani, J.

Heard Sri Manik Misra holding brief of Sri N.C. Rajvanshi for the appellants.

By the judgment and order dated 4.8.2006, this First Appeal From Orders was dismissed and thereafter a review application filed in trial court  was dismissed.

The judgment, however, is recalled on the restoration application of the respondent, as they were not heard.

Since thereafter the matter has been listed several  occasions  but the respondents did not appear.

Today, Sri Manik Misra holding brief of Sri N.C. Rajvanshi appears for the appellants.  No one appears for the respondents. The appeal is listed to be heard peremptorily.

The facts as given in the earlier judgment are reproduced below:

" The plaintiff/appellant filed suit no. 335 of 1980 against the present respondents for possession over a piece of house described by letters A.B.C.D. In the plaint map.  The suit for ejectment and recovery of damages was filed on the allegation that originally one Abdul Qayum was owner in possession of the disputed property, who sold it by a registered sale deed dated 1.12.1993 in favour of Smt. Usmani Begum.  Smt. Usmani Begum by means of registered sale deed dated 26th November, 1956 sold the property in question to the plaintiffs.  In the month of September, 1980 the plaintiff came to know that the defendants 1 and 2 got a sale deed executed by defendant no. 3 in respect of the disputed property, for a sum of Rs, 6000/0-.  The defendant no. 3 was never the owner or tenant of the disputed property and as such he


could not execute the sale deed in favour of defendant no. 1 and 2.

The defendants in the written statement accepted that Abdul Qayum was the original owner of the property A.B.C.D.  However, they have denied the title of the plaintiff.

The trial court framed seven issues.  Issue no. 1 is with regard to the ownership of the disputed property A.B.C.D.  Issue no. 2 is whether the defendant no. 1 and 2 were the tenants of the plaintiff and if so its effect.  Issue no. 3 is whether the defendant no. 1 and 2 became the owner of the dsputed property in view of the sale deed of the year 1974.  Issue no. 4 i whether the plaintiffs are entitled to recover the damages for the unauthorised use and occupation of the defendants over the land in question.  The other issues are not relevant for the purpose of the disposal of the present appeal.

The trial court decreed the suit by its judgment and decree dated 23rd February, 1982 on the findings that the plaintiffs are the owners of the house in question.  The defendants have failed to prove their title with respect to the land in question.  A decree for of the defendants with respect to the property A.B.C.D. was passed.   Along with it a sum of Rs. 100/- per month was awarded as damages in favour of the plaintiffs.

The said decree was challenged by the defendant/respondent nos. 1 and 2 by filing Civil Appeal No. 139 of 1982.  The III Addl. Civil Judge, Bulandshahr after taking into consideration the evidence on record dismissed the appeal on merit by its judgment and decree dated 10th August,1990.  The appellate court examined the matter in great depth.  It has taken into consideration the oral evidence as well as documentary evidence produced by the parties.  Ultimately it was found that the plaintiffs have been able to prove their ownership and possession with respect to the disputed property and it was further held that defendant nos. 1 and 2 came into possession of it as tenants.  It has also taken into consideration the sale deed of the year 1974 executed by Mohammad Alam, the defendant no.3. The appellate court has


confirmed the findings recorded by the trial court that Mohd. Alam (defendant no. 3) had no right, title or interest to execute the sale deed.  It also considered the quantum of damages awarded by the trial court for the use and occupation of the disputed property by defendant no. 1 and 2 and confirmed that the award of damages at the rate of Rs. 100/- per month is legal and justified.

Second Appeal No. 1607 of 1990 was filed by defendant no. 1 and 2 in this court.  The second appeal was taken up for consideration  along with the aforesaid first appeal from order.  |The second appeal has been dismissed in default on 29th July, 2004, as the appellant's counsel did not turn up even in the revised list.

Defendant no. 1 and 2 Mohd. Waris and Naseem Ahmad  besides filing the aforesaid second appeal in this court, also filed an application before the Court below for reviewing its judgment and decree under appeal.  The court below by the impugned order dated 5th August, 1994 allowed the review application with costs and set aside the judgment and decree passed in Civil Appeal No. 139 of 1982.  Aggrieved against this order the present first appeal from order has been filed at the instance of the plaintiffs.

Heard learned counsel for the appellants. None appeared on behalf of the respondents.  |The service on respondent no. 1 and 2 was held sufficient by the order dated 8th January,2004.  The service on respondent no. 3 was held sufficient by me as the registered letter sent to respondent no. 3, as per office report has not returned after service.

Learned counsel for the appellant submitted that the court below has committed illegality in allowing the review application.  The court below has heard the case on merits and re-appreciated the evidence on record, which according to the learned counsel for the appellant is not permissible under law in the exercise of review jurisdiction.  It was submitted that the power of the court to review its order is very limited one.  An error in the judgment can not be corrected in exercise of power


of review.

I have given my careful consideration to the submissions of the learned counsel for the appellants.  The power of review has been conferred under Order 47 Rule 1 and 2 of the Civil Procedure Code.

Reverting to the facts of the present case there is no dispute with regard to the fact that Abdul Qayum was owner of the disputed property shown in the plaint map by letters A.B.C.D.E.F.G.H.   It is also admitted case of the parties that Abdul Qayum sold the property shown by letters A.B.C.D. to Zafar Hussain by means of sale deed dated 9th January, 1932.  He sold the remaining property by means of a registered sale deed dated 1st December, 1933 to Smt. Usmani Begum wife of Zafar Hussain.  There is also no dispute that after the death of Sri Zafar Hussain his widow Smt. Usmani Begum became the owner of the property A.B.C.D.E.F.G.H. and the property A.B.C.D.   The plaintiff claims that Smt. Usmani Begum by means of sale deed dated 26th November, 1956 sold the entire property purchased by her as well as by Zafar Hussain to the plaintiffs, in contra, the case of the defendant/respondent no. 1 and 2 is that the disputed property A.B.C.D. which was purchased by Dr. Zafar Hussain the husband of Smt. Usmani Begum was inherited by Mohd. Alam, the nephew of Dr. Zafar died in the year 1955 and had no issue.  In 1956 Smt. Usmani Begum sold her share in the property to the plaintiff and Mohd. Alam, defendant no. 3 sold the same to the defendant no. 1 and 2.  The trial court as well as the appellate court both have found on the interpretation of the sale deed dated 26.11.1956 that Smt. Usmani Begum sold the entire property, which includes the property inherited by her from her husband.   By the impugned order the court below in the exercise of power of review has come to the conclusion that the interpretation put by the trial court as well as by the appellate court earlier in the appeal is not correct. The order of the court below passed on the review application is based upon the re-appreciation of the oral evidence as well as of the sale deed dated 26.11.1956. The


court below exceeded in its jurisdiction while exercising the power of review to  re-appreciate the oral and documentary evidence and come to a different conclusion."

I have gone through the grounds taken in the review petition filed in the appellate court after second appeal was dismissed by this Court against the judgment.

The review petition was apparently filed in disguise to get over the judgment of the second appeal.  The review petition without disclosing the error apparent on the face of record could not be allowed by the appellate court sitting in appeal over the judgment. The first appeal is consequently allowed and the judgment of the IIIrd Additional District Judge allowing the review petition on 5.8.1996 is set aside. The review petition shall stand dismissed.

The appeal is allowed with costs quantified at Rs.10,000/-.

Dt. 19.10.2006.



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