Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Review Application No. 154 of 2007 IN First Appeal No. 406 of 2001 (Old No. 1015 of 1999) Dated of Decision: 13.08.2010 Shri Chandra Bhan and others …Appellants/Applicants Versus Sri Ram Ratan Chhabra and others …Respondents CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. L.P. Naithani, learned Senior Counsel assisted by Mr. Lokendra Dobhal, learned counsel for the appellants. Mr. Neeraj Garg, learned counsel for the respondents. Nirmal Yadav, J. Heard Mr. L.P. Naithani, learned Senior Counsel assisted by Mr. Lokendra Dobhal, learned counsel for the appellants/applicants, Mr. Neeraj Garg, learned counsel for the respondents and perused the entire material available on record. This review application has been filed under Order 47, Rule 1 of the Code of Civil Procedure by Shri Chandra Bhan plaintiff/appellant and others for reviewing the order dated 15th February 2007 passed by the Division Bench of this Court dismissing their first appeal bearing no. 406 of 2001 along with first appeal No. 22 of 2002 filed by Satish Chandra Chhabra, one of the respondents. The main ground raised by Mr. L.P. Naithani, learned Sr. Counsel is that this Court has not considered the plea taken by the appellant about the legal notice dated 05.08.1988 having served upon respondent Ram Ratan Chhabra through his counsel Surendra Prasad Parashar stating that the property should be partitioned by metes and bounds along with the proposal and the site plan as to how the property 2 should be partitioned in two equal portion. Ram Ratan Chhabra had replied to the said notice on 10th August 1988 and agreed for the division of open space in front of the main house in two equal shares. It was clearly stated that he had no objection to consider and accept any suggestion, which was practicable and reasonable. Thus it is argued that this Court did not consider the contention and plea taken by the appellant that the property should have been divided by metes and bounds. It is further argued that the finding of this Court that property had been partitioned in the year 1958 and was given effect to is totally incorrect. Another plea taken by the learned counsel for the appellants is that the observation of this Court in paragraph-13 that there is no dispute between the plaintiff no. 1 and defendant no. 1 that the property was purchased as joint hindu family property is also incorrect. A bare reading of the covenant of the sale deed dated 16th July 1957 shows that both Ram Ratan Chhabra as well as Chandra Bhan as kartas of their family, had purchased the property in half and half share. They were co- owners but it is not depicted from the sale deed that the property was purchased as joint hindu family property. Learned counsel for the appellants argued that if it is not possible to divide the property in equal share by metes and bounds then adjustment of the values of two portion by providing payment by co-owner who has a larger share to the other co-owners could be suggested. This position has been recognized in law and such a payment is termed as a provision for owelty or equality of partition. In support of this argument learned counsel for the appellants placed reliance upon the judgments of the Apex Court reported as Rani Aloka Dudhoria and others Vs. Goutam Dudhoria and others [(2009) 13 Supreme Court Cases 569]; R. Rama Murthi Iyer Vs. Raja V. Rajeswara Rao [(1972) 2 Supreme Court Cases 721] and Punjab National Bank 3 Vs. Sahu Jain Charitable Society and others reported in [(2007) 7 Supreme Court Cases 83]. Learned counsel for the appellants further argued that since the judgment under review has been passed ignoring the material available on record, it is a clear case of an error apparent and non- consideration of relevant documents, therefore, judgment needs to be reviewed. This Court has ample power to correct all errors to prevent miscarriage of justice. Learned counsel for the appellants submitted that application under Order 47, Rule 1 of the Code of Civil Procedure would be maintainable not only upon discovery of a new and important piece of evidence or when there exist an error apparent on the face of the record but also if the same is necessitated on account of any other “sufficient reasons”. He further submitted that the words “sufficient reasons” under Order 47, Rule 1 of the Code of Civil Procedure are wide enough to include misconception of fact or law by a court or even an advocate. In support of his argument learned counsel for the appellants further placed reliance upon a decision of Apex Court in the case of BCCI and another Vs. NetaJi Cricket Club and others reported in [(2005) 4 Supreme Court Cases 741]. On the other hand Sri Neeraj Garg, learned counsel for the respondents argued that in paragraph-2 of review application, the applicants/appellants has stated that after passing of the order which is under review he had dig out the record and discovered new and important matter of evidence which was not within his knowledge and could not be produced by him when the decree was passed or when the order under review was made. However, he has not stated that as to what was the additional matter or evidence which was not within his knowledge and even after due exercise of due diligence the same could not be produced before the Court earlier. There is nothing on record to show that the said matter or evidence was 4 relevant and of such a character that if the same had been produced it might have altered the judgment. Learned counsel for the respondents further argued that as per Order 47, Rule 1 of the Code of Civil Procedure there has to be some mistake or error apparent on the face of the record. It does not require total examination and elucidation either of the facts or the legal position. Which cannot be taken into consideration by the Court to correct its order or decision, as the Court concerned cannot sit in appeal over its judgment or decision. In support of his argument learned counsel for the respondents placed reliance upon a decision of Apex Court in the case of Gaon Real Estate and Construction Limited and another Vs. People’s Movement of Civic Action and another reported in [(2008) 8 SCC 645] and Lily Thomas, etc. etc. Vs. Union of India and others reported in [(2000) AIR SCW 1760]. Brief facts leading to the present controversy are that the appellants/applicants filed a suit for partition of property No. 64-B, 64-D Lyton Road, Dehradun. Both Chandra Bhan and Ram Ratan Chhabra are the real brothers, who purchased the property in question jointly from one Hari Ram Sukhiza through registered sale deed dated 16th July 1957. The sale deed was executed by one Hari Ram Sukhiza the seller on one part and Ram Ratan Chhabra son of Desh Raj as Karta of his family constituting with his wife and children and Chandra Bhan son of Desh Raj as Karta of his family constituting with his wife and children in half and half share for a consideration of Rs. 70,000/-. The consideration was paid to the seller by two cheques of Rs. 2,000/- and 11,304.57 paisa and a sum of Rs. 3,695.34 paisa in cash. The property consists of a two storied house. The lower portion of the house was in possession of Shri Krishna Civil Surgeon as tenant and upper portion was under the tenancy of Guru Charan Singh and servant quarters were 5 also under the occupation of two tenants i.e. namely Manak Singh and H.D. Banarjee. According to plaintiff, he requested defendant Ram Ratan Chhabra to partition the property in two equal shares through a legal notice and requested the defendant to take any one share but he refused to do so. The suit was contested by Ram Ratan Chhabra by filing written statement that the suit property was not purchased in the capacity of joint hindu family property. According to him, partition between plaintiff and defendant had taken place in the year 1958, as property mentioned in schedule-B was given to the plaintiff as his share whereas the property mentioned in schedule-C fell to his share. The said oral partition has been given effect to. Both, the plaintiff and defendant are in possession of their respective properties since 1958, therefore, the suit was barred by principle of estoppel and acquiescence. Defendant no. 2 Satish Chandra Chhabra also filed separate written statement before the learned trial judge pleading that initially Desh Raj Chhabra, father of the plaintiff and defendant was the karta of joint hindu family property and after his death Ram Ratan Chhabra became the karta of the family. According to him, the disputed property was not purchased as a joint hindu family property. In fact he is the owner in possession of the disputed property. He also asserted that he is in adverse possession of the property since 1956 and therefore, he has become the owner of suit property by adverse possession. According to him, he is the owner of 1/8th share of the dispute property, therefore, he be declared the owner of the said share. The trial court after taking into consideration the evidence on record, came to the conclusion that plaintiff Chandra Bhan and defendant Ram Ratan Chhabra are the co- owners of the property in question. As the property in question 6 was purchased by both of them as karta of their respective family and partition of the disputed property had taken place between both of them in the year 1958, therefore, the suit is barred by limitation and by principle of estoppel and acquiescence. The appellants/applicants’ suit and counter claim of Satish Chandra Chhabra were dismissed by the trial court. Feeling aggrieved plaintiff-Chandra Bhan and defendant no. 2 Satish Chandra Chhabra preferred the appeals before this Court and this Court after taking into consideration the facts and entire material available on record came to the conclusion that plaintiff as well as defendant no. 2 Satish Chandra Chhabra have not been able to prove their claims and dismissed both the appeals. While deciding the appeal this Court has agreed with the findings of the trial court that the property was purchased by both the brothers jointly as co- owners into half and half shares. It has come in the evidence that both the portions of the building were under the occupation of tenants. When the upper portion was vacated by the tenant, it was occupied by plaintiff Chandra Bhan and when the lower portion was vacated, its possession was taken over by Ram Ratan Chhabra and since then both of them are in continuous possession of their respective portions. It has also come in the evidence that plaintiff is in possession of some area on the ground floor also. Both the families are living separately and maintaining their properties independently, therefore, it is well proved that oral partition was given effect to. It has come in deposition of plaintiff appellant- Chandra Bhan that Ram Ratan Chhabra is in occupation of ground floor and both the families are maintaining their portions by carrying the repair works. Since the partitions have already been given effect to, much prior to the alleged notice dated 5th August 1988, which has been taken note of by the trial court and this Court, therefore, there appears to be no mistake and error apparent in the 7 judgment, which needs to be corrected. The observation of this Court that there is no dispute between plaintiff and defendant no. 1 that the property was purchased as joint hindu family property is also not erroneous as the property was purchased by both the brothers as co-owners. Even from the details of the payment given in the sale deed, it is not revealed that the payment was made from their individual/own resources. In view of the above discussion and the facts available on record, we do not find that there is any discovery of new facts or evidence by the appellant/applicant or there is any mistake or error apparent on the face of record nor do we find any other sufficient reason to review the order dated 15th February 2007 passed by this Court. The Apex Court in the case of Aribam Tuleshwar Sharma Vs. Aribam Pishak Sharma reported in [(1979) 4 SCC 389] considered the scope of the High Courts’ power to review an order passed by this Court and observed as under: “… It is true as observed by this Court in Shivdeo Singh V. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers 8 which may enable an appellate court to correct all manner of errors committed by the subordinate court.” In our opinion, the instant case on the ground set out in the review application does not warrant exercise of power by this Court to review the order dated 15th February 2007 passed by this Court. The argument of learned counsel for the appellant that the partition between both the parties should have been by metes and bounds cannot be considered at this stage. We cannot substitute the findings on merit and application for review cannot be treated an appeal in disguise. In our view there appears to be no mistake or error apparent on the face of it in the judgment under review. The appellants have not been able to show here that discovery of any new important matters which after exercise of due diligence was not within his knowledge or could not be produced at the time of passing of the judgment. In fact all the pleas now taken were raised before the Bench while arguing the appeal and after considering all the pleas the judgment under review has been passed. We also do not find that there is something more than error or there are some other reasons to review our earlier order. Accordingly the review application is rejected. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 13.08.2010