IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.31 of 2008 1. DADAN OJHA @ DADANJEE OJHA SON OF LATE RAM NATH OJHA 2. BABAN OJHA SON OF LATE MAHESHWAR OJHA (DEAD), HEIRS ARE ON RECORD (APPELLANT NOS.3 AND 6) 3. JANGLEE OJHA SON OF LATE BABAN OJHA 4. SIYARAM OJHA SON OF LATE NAND KISHORE OJHA 5(A) PUSHPA DEVI 5(B) MANOJ OJHA 5(C) SANOJ OJHA 6. CHANDRADIP OJHA SON OF LATE BABAN OJHA 7. MARKANDEY OJHA SON OF DADANJEE OJHA 8. GOPALJEE OJHA SON OF LATE PARSHURAM OJHA 9. NEPAL OJHA SON OF LATE PARSHURAM OJHA 10. DHANPAL OJHA SON OF LATE PARSHURAM OJHA 11. DINDAYAL OJHA SON OF LATE RAMJEE OJHA 12. VIMLA DEVI WIFE OF LATE RAJ GRIHI OJHA, WRONGLY DESCRIBED IN C.C. OF DECREE AS DAUGHTER OF RAJ GRIHI OJHA 13. RAM SAKHIYA DEVI WIFE OF LATE RAJ GRIHI OJHA (DEAD), HEIRS ARE APPELLANT NOS.14 TO 16. 14. TARA KUMARI @ MEERA KUMARI. 15. BABUL KUMARI @ MADHURI KUMARI 16. TUN TUN OJHA @ ABHISHEK OJHA ALL ARE MINOR DAUGHTERS AND SON OF LATE RAJ GRIHI OJHA, UNDER THE GUARDIANSHIP OF VIMLA DEVI, MOTHER AND GUARDIAN. ALL ARE RESIDENT OF VILLAGE BARKA SINGHANPURA, P.S. SIMRI, DISTRICT BUXAR …….DEFENDANTS-RESPONDENTS-APPELLANTS- PETITIONERS. VERSUS 1. SHIV MANDIR OJHA SON OF LATE JAWAHIR OJHA 2. DEVENDRA OJHA 3. HARENDRA OJHA 4. NAGENDRA OJHA 5. NIRMALA DEVI 6. MEENA DEVI ALL ARE SONS AND DAUGHTERS OF NAND KUMARI DEVI WHO IS WIFE OF KEDAR OJHA. ALL ARE RESIDENTS OF VILLAGE CHHOTKA SINGHANPURA, P.O. CHHOTKA SINGHANPURA, P.S. SIMRI, DISTRICT BUXAR ………….PLAINTIFFS-APPELLANTS-RESPONDENTS- OPPOSITE PARTIES 1ST SET. 7. RAM BEYASH OJHA SON OF LATE JAMUNA OJHA 8. AKHILESH OJHA SON OF LATE KAPILDEO OJHA 9. MITHILESH OJHA SON OF LATE KAPILDEO OJHA 10. MOSTT. MANBASHIA DEVI WIFE OF LATE KAPILDEO OJHA - 2 - 11. MOSTT. SUNITA @ SUNITA DEVI WIFE OF LATE BANKATESH OJHA 12. SALTU OJHA MINOR SON OF SUNITA DEVI MOTHER AND GUARDIAN WHO IS WIFE OF LATE BANKATESH OJHA ALL ARE RESIDENTS OF VILLAGE BARKA SIKNGHANPURA, P.S. SIMRI, DISTRICT BUXAR. 13. SHEO NANDAN OJHA SON OF RAM BAYAS OJHA 14. HARINANDAN OJHA SON OF RAM BAYAS OJHA 15. SHYAM NARAYAN OJHA SON OF LATE KAPILDEO OJHA 16. AKHILESH OJHA SON OF LATE KAPILDEO OJHA 17. DHELA OJHA 18. SHYAM BIHARI OJHA 19. RAM BIHARI OJHA SL. NO.17 TO 19 ARE SONS OF JANG OJHA 20(A) PRAMOD OJHA 20(B) BINOD OJHA BOTH SONS OF LATE BASHISHTH OJHA 21. SURAJ NARAYAN OJHA 22. HARI NARAYAN OJHA BOTH SONS OF JANG OJHA 23. SUMAN NARAYAN OJHA SON OF HARIHAR OJHA 24. BIDYA SAGAR OJHA SON OF LATE AWADH BIHARI OJHA 25. HARE RAM OJHA SON OF LATE LAL MOHAR OJHA 26. BRIJ BIHARI OJHA SON OF DHELA OJHA 27. MUNNA OJHA SON OF DHELA OJHA ALL ARE RESIDENTS OF VILLAGE BARKA SINGHANPURA, P.S. SIMRI, DISTRICT BUXAR ………DEFENDANTS-RESPONDENTS-RESPONDENTS- OPPOSITE PARTIES. 28. SHAMI NATH MISSIR SON OF KHEDAN MISSIR 29. KASHI NATH MISSIR SON OF KHEDAN MISSIR 30. HARE RAM MISSIR SON OF SHAMI NATH MISSIR 31. JAI RAM MISSIR SON OF SHAMI NATH MISSIR 32. BHARAT MISSIR SON OF SHAMI NATH MISSIR 33. MANJI MISSIR SON OF SHAMI NATH MISSIR 33(A) CHANDAN MISHRA 33(B) TRIBHUVAN MISSIR BOTH SONS OF LATE LAXAMN MISSIR 34. BASHISHTH MISSIR SON OF RAM EKBAL MISSIR 35. AMAR NATH MISSIR SON OF RAM BACHAN MISSIR. 36. KANHJEE MISSIR SON OF LATE PRASAD MISSIR 37. GANGADHAR MISSIR SON OF KANHJEE MISSIR 38. RAJ GRIHI MISSIR SON OF LATE JAGARNATH MISSIR 39. RAM GRIHI MISSIR SON OF LATE JAGARNATH MISSIR ALL ARE RESIDENTS OF VILLAGE PARSAUNDA, P.S. SHAHPUR, DISTRICT BHOJPUR. …..DEFENDANTS-RESPONDENTS-RESPONDENTS- OPPOSITE PARTIES 2ND SET. 40. NARAD MISSIR SON OF LATE PHAGU MISSIR 41. SURAJ BADAN MISSIR SON OF RAM PUJAN MISSIR 42. SRI BHAGWAN MISSIR SON OF RAM BADAN MISSIR 43. SRI RAM MISSIR SON OF RAM BADAN MISSIR - 3 - 44. DEVENDRA MISSIR 45. SATENDRA MISSIR BOTH SONS OF SURAJ BADAN MISSIR. ALL ARE RESIDENTS OF VILLGE PARSAUNDA, P.S. SHAHPUR, DISTRICT BHOJPUR. ……..DEFENDNATS-RESPONDENTS-RESPONDENTS- OPPOSITE PARTIES 3RD SET. 46. TUWAR MISSIR @ DAMARI MISSIR SON OF LATE NARSINGH MISSIR 47. HARI MISSIR @ HERA MISSIR SON OF LATE NARSINGH MISSIR 48. BALA MISSIR SON OF BHUNESHWAR MISSIR 49. DATA MISSIR SON OF BHUNESHWAR MISSIR 50. RAMJI MISSIR SON OF DAMARI MISSIR 51. LACHUMAN MISSIR SON OF DAMARI MISSIR 52. SHOEJI MISSIR 53. RISHIKESH MISSIR SONS OF HERA MISSIR 54. RAMA SHANKAR MISSIR 55. SHEO SHANKAR MISSIR SONS OF BALA MISSIR 56. RAVI SHANKAR MISSIR 57. VINAY SHANKAR MISSIR SONS OF BALA MISSIR 58. SHEO PRASAD MISSIR SON OF BIRJA MISSIR 59. MANORMA DEVI WIFE OF RAMJI OJHA ALL ARE RESIDENTS OF VILLAGE PARSAURDA, P.S. SHAHPUR, DISTRICT BHOJPUR. …..DEFENDANTS-RESPONDENTS-RESPONDENTS- OPPOSITE PARTIES 4TH SET. For the petitioners :M/s S.S. Dewedi, Sr. Advocate with Ranjan Kr. Dubey, Rakesh Chandra and Sangeeta Sharma, Advocates. For opposite party no.1 : M/s K.N. Choubey, Sr. Advocate with Nikesh Kumar, Advocate. ----------- 20/ 27.08.2010 Heard learned counsel for the petitioners and learned counsel for opposite party no.1. 2. This petition has been filed for review of orders dated 09.05.2007 and 03.01.2008 passed by this court in S.A. No.400 of 2000. 3. By order dated 09.05.2007 passed in the aforesaid second appeal it is quite apparent that I.A. No.5761 - 4 - of 2006 was filed by the appellants for substitution of the heirs of respondent nos.20 and 37 as well as for expunction of the names of some other respondents. I.A. No.5776 of 2006 was filed by the appellants for condoning the delay in filing of the application for substitution of the heirs of respondent nos.20 and 37. The said interlocutory applications were allowed and the heirs of respondent nos.20 and 37 were directed to be substituted in their respective places subject to payment of cost of Rs.2,000.00 by the appellants to learned counsel appearing for respondent nos.1 to 6 within one month. 4. It transpires that the said order was not complied and cost was not paid, accordingly vide order dated 03.01.2008 it was held that due to non-compliance of the said order, the second appeal abated against them and their heirs. The review petitioners are not aggrieved by this part of the said order. 5. However, by the said order dated 03.01.2008 it was also held that dismissal of the second appeal against respondent nos.20 and 37 had made the entire second appeal incompetent and accordingly the second appeal was held to have stood dismissed. This part of the said order dated 03.01.2008 is sought to be reviewed by the petitioners who were appellants in the aforesaid second appeal. 6. The fact of this case in short was that the plaintiffs claimed that the original owners, namely defendants 3rd party and defendant 4th party mortgaged Schedule-II and - 5 - Schedule-III properties to defendant 1st party and defendant 2nd party and the said defendant 1st party and defendant 2nd party partitioned the same, according to which defendant 2nd party came in possession of Schedule-II land and defendant 1st party came in possession of Schedule-III land. It was also claimed by the plaintiffs in the plaint that as per the partition defendant 1st party had no concern with Schedule-II land and defendant 2nd party had no concern with Schedule-III land and defendant 1st party were to be Rehandar of the branch of Ram Karan Mishra, whereas defendant 2nd party were to be Rehandar of the branch of Kurman Mishra. 7. It was also claimed by the plaintiffs that defendant 3rd party and defendant 4th party sold their right and title over Schedule-II and III lands to the plaintiffs by three registered deeds dated 24.11.1968 and from that money defendant 3rd party and defendant 4th party paid the mortgage amount to defendant 2nd party, who issued receipt on the back of the mortgage deed and handed over possession of Schedule- II land to the plaintiffs who are coming in possession since then and thereafter only mortgage of defendant 1st party remained unredeemed . 8. On the other hand, learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioners and states that since paragraph-12 ‘Ka’ and relief no.1 ‘Ka’ of the plaint was specifically sought against defendant 1st party and defendant 2nd party also, the - 6 - abatement of the second appeal against any one of defendant 2nd party, namely respondent no.20 shall make the entire second appeal incompetent and order dated 03.01.2008 was rightly passed by this court. In this connection he relies upon a decision of the Privy Council in case of Chajju Ram v. Neki and others, reported in A.I.R. 1922 Privy Council 112 as well as a decision of the Patna High Court in case of Hem Narain Singh and others v. Ganesh Singh and others, reported in A.I.R. 1995 Patna 5 and also a decision of a Full Bench of this court in case of Ramautar Tiwari and others v. Jagdish Singh and others, reported in A.I.R. 1957 Patna 430 as well as a decision of the Apex Court in case of Lily Thomas, etc. etc. v. Union of India and others, reported in A.I.R. 2000 Supreme Court 1650. 9. Considering the aforesaid matter in its entirety it is quite apparent that relief nos. (i), (ii), (iii), (iv) and (v) were sought only against defendant 1st party and no relief was sought against defendant 2nd party. However, subsequently an amendment was made in the plaint according to which paragraph-12 ‘Ka’ was added in which it was stated that defendant 1st party were not accepting the redemption of mortgage of Schedule-II land by defendant 2nd party, hence an additional relief 1’Ka’ was added in which a decree was sought against defendant 2nd party also. 10. It may be noted in this regard that defendant nos.1 to 15 were defendant first party in the suit, whereas - 7 - defendant nos.16 to 36 were defendant 2nd party and defendant nos.37 to 61 were defendant 3rd party and 4th party, whereas defendant nos.62 to 79 were formal defendant 5th party. In the said circumstances, respondent no.20, who was defendant no.26 in the title suit, was one of defendant 2nd party whereas respondent no.37 who was defendant no.43 in the title suit, was among defendant 3rd party against whom no relief was sought and hence dismissal of the suit or the second appeal against him does not in any way effect the appeal and it cannot be legally abated as a whole due to dismissal of the appeal against respondent no.37. 11. So far respondent no.20 is concerned, he was defendant no.26 in the title suit and was one of defendant 2nd party and the relief was sought against defendant 2nd party only because defendant 1st party was not accepting redemption of mortgage of Schedule-II lands by defendant 2nd party in favour of the plaintiffs. It is clear from the plaint that defendant 2nd party never denied redemption made by them in favour of the plaintiffs nor defendant 2nd party even contested title suit or the title appeal which was filed by the plaintiffs. After the decree passed by the lower appellate court by which all the reliefs claimed by the plaintiffs were decreed, defendant 2nd party including defendant no.26 did not challenge the same and remained silent. It is thus clear that in spite of repeated service of notice upon defendant 2nd party including respondent no.20 they never appeared to contest the claim of the plaintiffs and - 8 - did not even challenge the decree by which all the reliefs of the plaintiffs were allowed. This amply shows that due to the aforesaid facts and circumstances, the second appeal has neither abated nor has become incompetent, due to its dismissal against respondent no.20. 12. From perusal of the decisions relied upon by learned counsel for opposite party no.1, it is quite apparent that the said case laws are not applicable to the facts and circumstances of this case, as in the instant case only correction of mistake is required and the views are not to be substituted. Furthermore, the error in the said order is quite apparent from the face of the record as the judgment of the trial court as well as the judgment of the lower appellate court clearly showed that defendant 2nd party never contested the title suit or the title appeal and hence there was no question of fishing out any error. In my view, it is the duty of the court to correct its mistake when there is an error apparent on the face of the record. 13. Learned counsel for opposite party no.1 also emphasizes upon paragraph-14 of the review petition in which it is stated that even if abatement is taken to have occurred then on account of death of respondent no.20 and abatement against him, the appeal could abate only with respect to Schedule-II of the lands of the plaint and mortgage therefor. 14. This is an absolutely frivolous point, as the said claim raised by the review petitioners was merely as an - 9 - alternative prayer and not the main prayer which is evident from the review petition itself. Learned counsel for opposite party no.1 further submits that the review petitioners have not taken any point in the review petition that respondent no.20, who was defendant 2nd party, did not contest the title suit and the title appeal. I am amazed by the ignorance of basic concept by learned counsel for opposite party no.1 with respect to review matters. A review matter is decided by a court after self-estimation of its earlier order and if it is satisfied that any error apparent on the face of the record has been committed, it is the duty of the court to correct the same irrespective of the fact as to whether it has been pointed out by one party or the other. 15. In the aforesaid facts and circumstances, it is quite apparent that there is an error apparent on the face of order dated 03.01.2008 and hence it is reviewed only with respect to that portion of the said order by which it was held that respondent nos.20 and 37 were necessary parties and dismissal of the second appeal against them has made the entire second appeal incompetent and accordingly the second appeal stood dismissed. It is quite apparent from the aforesaid facts and circumstances that respondent nos.20 and 37 or their heirs were not necessary parties for the instant second appeal and the dismissal of the second appeal against them did not make the entire appeal incompetent, rather the second appeal must proceed against the respondents except respondent nos.20 - 10 - and 37 and their heirs. 16. Accordingly, this review petition is allowed. Harish (S.N. Hussain, J.)