Judgment · High Court · 2015

#2. I have heard Mr. SP Roy, learned counsel for the review petitioner and M r. SS Dey, learned senior counsel assisted by Mr. M Nath for the respondents in the review petition. 3. The respondents in the present review petition, as plaintiffs , institut ed Title Suit No. 306/2002 in the court of learned Civil Judge (Sr. Div.No.3) Ka mrup at Guwahati against the present review petitioner as principal defendant No .1 and three others as proforma defendants. It was the pleaded case of the plain tiff that suit property originally belonged to late Rabiram Sarania who died lea ving behind two sons Balaram Sarania (since deceased) and Satara Sarania (since deceased). Balaram died leaving behind two sons, namely, Mahandra Rajbongshi @ S arania (since deceased) and Kamaleshwar Rajbongshi @ Sarania. Satara died leavin g behind two sons Gunadhar and Guneswar (plaintiff No.2) whereas Mahendra died l eaving behind Birendra (Plaintiff No.1), Dhireswar and Ramesh as his legal heir s. According to plaintiffs since Satara was simple, Balaram got his name mutated against the entire property after death of Rabiram although the two brothers li ved jointly all along and enjoyed the property together. Even plaintiff No.1 not iced during his boyhood that his father Mahendra, Satara the father of the plain tiff No.2 and Kamaleswar (the defendant No.1) all lived together and cultivated the ancestral land jointly. They used to divide the agricultural produce in equa l share and thus the agricultural land left behind by Rabiram Sarania still rema ins a joint property in the hands of his successor. Plaintiffs being lineal desc endants of the original owner Rabiram are copercanars of the property and have their rights involved in it. The plaintiffs came to know on 30.11.2002 that one Kishore Patwary entered into agreement for sale with defendant No.1 with respect of 2 Bighas of the aforesaid land and so they along with the proforma defendant s have become aggrieved. According to them, suit property still remains unpartit ioned and all the successors of the original owner, Rabiram Rajbongshi have join t right, title and interest thereto. The plaintiffs therefore prayed for a decre e for declaration that suit property described in Schedule-A to the plaint is a Hindu copercanary property and that all parties to the suit are copercenars. Pl aintiffs also prayed for a decree of permanent injunction for restraining the de fendant No..1 from transferring any part of the suit land in any manner to any s tranger and or to deliver possession.

#4. The defendant NO.1 appeared and submitted written statement denying the averments made in the plaint in entirety. It is also claimed that the suit is ba rred by limitation as the name of the father of the plaintiff No.2 who happens t o be the brother of defendant No.1 was never mutated in the records of rights at any point of time whereas the name of the father of the defendant No.1 was muta ted in the records of rights in the year 1957-64. However, the fact that the sui t property originally belong to Rabiram has been specifically admitted in the wr itten statement vide para-8. The other statements made in the plaint in regard t o joint living with defendant no.1 and endevour to sell 2 Bighas of land surrept iously have been denied. According to the defendant, after death of Rabiram, Bal aram became sole owner by getting his name mutated in the records as far back as in the year 1965. Balaram died leaving behind his sons, Mahendra (father of pl aintiff No.1) and Kamaleswar, the defendant No.1. Mahendra became entitled to 6 Bighas and so plaintiff No.1 along with his two brothers equally inherited the s aid property. But plaintiff No.1 is in occupation of three and half Bighas of la nd and the other two brothers do not have any claim of share in the property. Th e plaintiff cannot claim any more property. It is further stated that name of pl aintiff NO.2 has been mutated in the records of rights vide Mutation Case No.16/ 99-2000 along with plaintiff No.1 and defendant No.1. Although an appeal there a gainst was dismissed by the Deputy Commissioner , Kamrup but on being appealed a gainst before the Assam Board of Revenue, the same has been allowed. It is claim ed that defendant No.1 is in occupation of 8 ‰ Bighas of land out of 12 Bigha 6 lechas and plaintiff No.1 does not have any right, title and interest and posses sion except 2 Bigha 1 lechas which falls in his share and plaintiff No.2 cannot claim any right not being a member of the copercanary. With these averments, def endant prayed that suit be dismissed with cost.

#5. of the parties and the same are as follows: Learned trial court framed as many as six issues upon rival contentions (i) Whether the suit is bad for non-joinder of neces sary party? (ii) Whether the suit is barred by limitation? Whether the suit property described in the Schedule- (iii) A in the plaint is a Hindu coparcenary property of the parties? (iv) rayed for? (v) (vi) Whether the plaintiffs are entitled to get a decree as prayed for? Whether other relief/reliefs the parties are entitled to? Whether the plaintiffs are entitled to get the relief of injunction as p

#6. Plaintiffs examined two witnesses including himself and exhibited as man y as four documents including jamabandi of the land. The defendants examined him self as DW-1 and exhibited three documents as Exhibit-A, B and C. Exhibit-A is J amabandi of KP Patta NO.42 Exhibit-B is Chitha of the said patta and Exhibit-C i s the certified copy of judgment of the Assam Board of Revenue in RA(K)-24/2000. Upon perusal of these materials , the learned trial court decided all the issue s in favour of the plaintiffs. It was held that the suit is not barred by limita tion, it is not bad for non-joinder of necessary party and that the suit propert y is a Hindu copercanary. Under such circumstances, plaintiffs are entitled to a decree as prayed for. According to the learned court the suit land is not parti tioned and the parties are in joint possession thereon. However, the prayer for injunction was rejected. The defendant No.1 preferred Title Appeal No.11 of 2005 in the court of learned District Judge at Kamrup on the grounds that the impugn ed decree is bad, that the suit is barred under provision to Section-34 of the S pecific Relief Act as the suit has been filed merely for declaration without any prayer for partition, that the learned trial court did not consider various dec isions relied on by the defendants in course of argument and that the point of m aintainability of the suit being a point of la w can be decided at any stage an d thereupon the suit of the plaintiff can be dismissed.

#7. The learned first appellate court considered the appeal on the aforesaid four grounds and held that the suit is not maintainable in the absence of the p rayer for partition and recovery possession. The learned first appellate court h as not entered into other questions including limitation, title and rights of th e parties to the suit property. The findings of the learned trial court, theref ore, that plaintiffs are copercenars of the suit property along with the defenda nts remained untouched. This judgment and decree dated 7.9.2009 passed by the l earned District Judge came under challenge in RSA No.144 of 2009. The second app eal was admitted on 28.10.2009 on the following five substantial questions of l aw:- Whether the instant suit seeking declaration along with prayer for perma (i) nent injunction is maintainable in view of the proviso to Section 34 of the Spec ific Relief Act, 1963? (ii) Whether the relief of injunction would be further relief in the facts of the instant case within the meaning of the proviso to Section 34 of the Specifi c Relief Act, 1963? (iii) Whether it is mandatory for maintainability of the Suit by a co-owner seek ing declaration as regards his co-ownership rights in respect to the suit land a long with permanent injunction to seek the further relief for partition of the s uit land or to seek recovery of possession of his share in respect to the suit l and ? (iv) Whether the impugned judgment and decree, passed by the learned Appellate c ourt is perverse? (v) Any other question as may be allowed to be raised at the time of hearing o f this Appeal. However, subsequently on 21.2.2012 , the following two additional substantial qu estions of law were also framed:- (vi) Whether a respondent to a second appeal be permitted to raise a new issu e, for the first time, at the Second Appellate stage, which was never raised at any point of time either before the trial Court or the First Appellate Court? Whether the concept of coparcener is foreign to the Dayabhaga Law of inh (Vii) eritance? 8. On 24.2.2012 all the substantial questions of law were heard by this co urt and it was held in paragraph-21 of the judgment that question as regards mai ntainability of a suit on the ground of proviso to Section-34 of the Specific Re lief Act cannot be taken for the first time in appeal . It was also held in para -25 that a person while seeking declaration of his co-ownership of a suit proper ty may not, if he does not so desire, seek partition of the suit property. So lo ng as a joint owner of a suit property does not wish to severe his relationship with other members of his family/co-owners , he need not ask for partition of t he suit property and he may remain contended by seeking mere declaration of his title as a co-owner of the property . The decision of the first appellate court, therefore, on the basis of proviso to Section-34 of the Specific Relief Act sto od reversed by this court after considering various reported Judgments and there upon in exercise of power under XLI Rule 33 of the Code of Civil Procedure and relying on the judgment of the Hon’ble Supreme Court in the case of Prahlad & or s. -vs- State of Maharashtra & anr. reported in (2010) 10 SCC 458 as well as Ban arasi -vs- Ramphal reported in (2003) 9 SCC 606 considered the issue on concept of copercanary under the Dayabhaga School of Hindu Law and thereupon held that j oint family under Dayabhaga School is, in a way, copercanary. While, under Mitak hshara School , there is unity of ownership and a member has a definite share in the property which however is always fluctuating, the same under Dayabhaga Scho ol lies in unity of possession and not unity of ownership. Every copercanar take s a definite share of property in the Dayabhaga School. This court also found th at in the case in hand, plaintiffs sought for only declaration of their status a s copercanars in respect of the suit land which was described as Copercenary and they have succeeded to prove the same. The declaration given by the trial cour t was not in breach of Section -34 of the Specific Relief Act as plaintiffs did not seek partition. Accordingly, the decree passed by the learned trial court wa s upheld and that of the learned first appellate court was reversed. By filing p resent review petition, the defendant no.1 has challenged this judgment dated 24 .2.2012. In this review petition, there are as many as eight grounds. By ground N 9. o.1 it has been stated that this court overlooked the materials on record, howev er, without pointing out the concerned materials. In the second ground the revie w petitioner has taken the plea of limitation stating that defendant No.1 had ta ken clear stand of adverse possession and of continuous possession of the suit l and since 1965 which means that the plaintiffs had been denied possession over t he suit premises but even thereafter did not amend the plaint but allowed the su it to continue for declaration of injunction only and so there is error apparent on the face of record. The petitioner has taken a stand in ground No.3 that thi s court did not consider Section-34 of the Specific Relief Act and so the judgme nt is liable to be reviewed. In ground No.4, it is urged that the second appella te court was duty bound to consider the point of limitation as it is important point for deciding the suit. In ground No.5, it is stated that plaintiffs and de fendants do not belong to the same generation and so they cannot be members of t he copercanary. In that view of the matter, the judgment is liable to be reviewe d. Ground No.6 relates to objection on non-joinder of Gunadhar Rajbongshi . It i s stated that High Court committed error in not considering that aspect of the matter and finally in Ground No.7 it is claimed that decree of declation passed by the trial court without consequential relief being erroneous, the impugned ju dgment is liable to be reviewed. The last ground is a general ground without an y specific averment. Mr. SP Roy, learned counsel for the petitioner has relied on a host of d 10. ecisions of the Hon’ble Supreme Court to show the scope and power of a court con sidering review petition. The central purport of all these decisions is that in the case of material error manifest on the face of the order which undermines th e soundness of the decision and results in failure of justice, review of a judg ment /order is required to be made. According to the learned counsel, apart fro m errors apparent on the face of record, a review can be allowed even if there i s any mistake on law or mistake on fact. If an important piece of evidence had escaped notice of the court while passing the judgment, such a mistake can be cu red by reviewing the order in exercise of power under Order XLVII Rule 1 of the Code of Civil Procedure. He highlighted that even Order XLVII Rule 1 speaks of discovery of new and important matter or evidence and any other sufficient rea son warranting a review. According to Mr. Roy, words ’sufficient reason’ is wide enough to cover any ground which according to the court would include miscarri age of justice to a party. In the instant case, the High Court did not consider the exhibits relied on by the parties before the trial court and did not consid er the point of limitation which if considered, the impugned judgment would not have been passed, Mr. Roy contended.

#11. Mr. SS Dey, learned senior counsel appearing for the respondents in the review petition would argue on the other hand that this court while passing the judgment under review merely decided the substantial questions of law framed by it and could not have entered into any other point which has not been pressed by the parties. According to him, the learned trial court held that the suit is not barred by limitation and this finding was not challenged before the first ap pellate court by the defendant No1. The only point urged before the first appell ate court was bar under proviso to Section 34 of the Specific Relief Act and thi s is the only point which was decided by the first appellate court, however, in favour of the defendant No.1. Even the second appeal was admitted basically on this aspect of the matter and there was no scope on the part of this court to en ter into any other question like limitation. This was never argued before this court at the time of hearing of the appeal and so it cannot be a ground of revie w. 12. I have gone through the judgment under review, the judgment passed by th e first appellate court, the judgment passed by the learned trial court as well as the plaint and the written statement. It appears that plaintiffs claimed tit le to the suit land on the basis of inheritance from a common ancestor along wit h the defendants. Lineal descendance of the parties from the common ancestor, Ra biram Rajbongshi has not been denied even by the defendant No.1/review petition er. In the written statement, inheritance by plaintiff No.1 and his possession o ver a part of property has been specifically admitted by the defendant No.1 . I t is not pleaded in written statement that plaintiff No.2 is not a lineal desc endant of Rabiram Rajbongshi and so the parties being governed by Dayabhaga Scho ol of Hindu Law, inheritance by them by survivorship is not under challenge. Th e learned trial court has found that the plaintiffs are co-owners. May be they b een described as copercanars and this is why this court in the judgment under re view considered the whole aspect to hold that joint family under the Dayabhaga S chool is ’in a way’ a copercanary. The decision of this court in the second appe al whether correct or not cannot be decided in a review petition. A review petit ion has its own scope and limitation and it cannot take form of an appeal. If th e review petitioner is aggrieved by the decision rendered in the judgment under review , he may be at liberty to prefer appeal by appropriate procedure before superior court but unless an error apparent on the face of record is made out o r any other ground under Order XLVII rule is disclosed, no review petition can be entertained. 13. Order XLVII Rule 1 of the Code of Civil Procedure provides the guideline s for entertaining review petition. The same is clear and specific. It provides the following grounds for maintaining a review petition:- (i) Discovery of a new and important matter or evidence which after the exer cise of due diligence was not within the knowledge of the applicant or could not be produce by him at the time when the decree was passed or order made; (ii) (iii) 14. Existence of mistake or error apparent on the face of record; and any other sufficient reason While the first two grounds are specific, the third ground is apparently wide. But this does not mean that any reason or ground can become sufficient re ason within the meaning of third clause of this rule. The principle of ejasdem g eneris requires that when there are specific nature of the first two grounds, th e third general ground has to be of the same genus as the other specified ground s. This means that sufficient reason also has to be apparent on the face of reco rd such that it does not require any detailed argument for the purpose of establ ishing the same. In case of the first ground referred to above, it is the burden of the review petiiotner to plead and establish that there was due diligence an d that even thereafter a piece of evidence could not be placed before the cour t at the relevant time. In the case in hand, the review petitioner has not argued the first grou 15. nd quoted above. The petitioner has failed to point out any specific error appar ent on the face of record. The only argument that has been made by Mr. Roy is th at this court while deciding the second appeal did not make any enquiry as to wh ether the suit was barred by limitation and as to whether the plaintiffs had any title to the land. But the written statement filed by the review petioner does not point out that plaintiffs do not have any title to the land. Although in the review petition a stand has been taken that defendant No.1 had taken plea of ad verse possession but written statement does not disclose necessary pleadings in this regard. A plea of adverse possession must contain the date since when the p ossession became hostile and such possession should be open. Here, even the rev iew petitioner admitted in the written statement that plaintiff No.1 is in posse ssion of a part of the suit land which exceeds his share in the property. The le arned trial court after consideration of the materials arrived at the finding th at plaintiffs are co-owners (copercenars) . The trial court has held that the su it is not barred by limitation . The review petitioner while preferring the firs t appeal did not challenge either of these findings and confined the challenge t o objection on bar under proviso to Section-34 of the Specific Relief Act. When second appeal was admitted this court framed a set of substantial questions of law all of which are in regards to objection under proviso to Section-34 of the Specific Relief Act. Two additional substantial questions of law were subsequen tly framed but they did not include objection on limitation or title of the plai ntiffs. That being the position, question on limitation or title did not come up for consideration before this court in second appeal for which there was no occ asion to give any decision on these points. The objections as argued by Mr. SP R oy, therefore, do not constitute either errors apparent or any other sufficient reason within the meaning of Order XLVII Rule 1 of the Code of Civil Procedure. 16. 17. Consequently, the review petition has no merit. It is accordingly dismissed. No order as to cost.