1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW PETITION NO.134 OF 2009 IN APPEAL FROM ORDER NO. 90 OF 2008 1. Bapurao s/o Ramkrushna Raut, Age: 55 years, Occ: Agril., R/o. Mangalapur, Tq. Sangamner, District Ahmednagar. 2. Ramkrushna s/o Sadashiv Raut, (deceased) Through his L.Rs. i.e. Prabhakar s/o Ramkrishna Raut, Age: 50 years, Occ: Agril., R/o. Mangalapur, Tq. Sangamner, District Ahmednagar. 3. Punja s/o Mahadu Raut, Age: 65 years, Occ: Agril., R/o. as above. .. Review Petitioners (Orig. plaintiffs) Versus 1. Radhakishan s/o Gangadhar Wale, Age: 60 years, Occ: Agril., R/o. Mangalapur, Tq. Sangamner District Ahmednagar. 2. Balu s/o Bhau Wale, (Deceased) Through his L.Rs. 2­A) Lahanu s/o Babu Wale, Age: 55 years, Occ: Agril., 2­B) Sahebrao s/o Babu Wale, Age: 50 years, Occ: Agril., 2­C) Chandrabhan s/o Babu Wale, Age: 47 years, Occ: Agril., 2 All R/o. Mangalapur, Tq. Sangamner, District Ahmednagar. 2­D) Bhagubai w/o Dnyaneshwar Warpe, Age: Major, Occ: Agri., 2­E) Smt. Parvatabai w/o Babu Wale, Age: Major, Occ: Agril., Both R/o. Chikani, Tq. Sangamner, District Ahmednagar. .. Respondents (Orig.defendants) WITH REVIEW PETITION NO.135 OF 2009 IN APPEAL FROM ORDER NO. 89 OF 2008 1. Bapurao s/o Ramkrushna Raut, Age: 55 years, Occ: Agril., R/o. Mangalapur, Tq. Sangamner, District Ahmednagar. 2. Ramkrushna s/o Sadashiv Raut, (deceased) Through his L.Rs. Prabhakar s/o Ramkrishna Raut, Age: 50 years, Occ: Agril., R/o. Mangalapur, Tq. Sangamner, District Ahmednagar. 3. Punja s/o Mahadu Raut, Age: 65 years, Occ: Agril., R/o. as above. .. Review Petitioners (Orig. plaintiffs) Versus 1. Shankar s/o Nana Wale, Age: 26 years, Occ: Agril., R/o. Mangalapur, Tq. Sangamner District Ahmednagar. 3 2. Dattu s/o Taba Wale, Age: 61 years, Occ: Agril., R/o. as above. .. Respondents (Orig.defendants) ... Mr. R.D. Bhalerao , Advocate for review petitioners. Mr. R.L. Kute, Advocate holding for Mr. R.N. Dhorde, Advocate for respondents. ... CORAM : P.R. BORKAR,J. DATE : 13TH NOVEMBER, 2009. PER COURT : . By these two Review Petitions, challenge is made to the common judgment delivered by this Court on 27­07­2009 whereby Appeals From Order Nos. 89/2008 and 90/2008 were decided and the orders passed by the Ad hoc District Judge­1, Sangamner in Regular Civil Appeal Nos. 741/2000 and 950/2000 are set aside and those appeals are dismissed. 4 2. Heard Shri. R.D. Bhalerao, Advocate for the review applicants and Shri. R.L. Kute, Advocate for the respondents. 3. It is necessary first to refer to the pleadings of the parties. It is no more disputed that the present review applicants are the owners of field Survey NO. 64/1, admeasuring 1 Hectare 27 Ares, situated at village Manglapur. The present respondents from both the review petitions are the owners of field Survey Nos. 64/2 and 64/3, which are on the eastern side of the field of the present applicants. The review applicants alleged that the respondents had encroached into their land. The respondents in Review Petition No. 135/2009 made encroachment to the extent of 4 Ares and the respondents in Review Petition No. 134/2009 made encroachment to the extent of 2 Ares. The review applicants who were original plaintiffs, requested the respondents­defendants to deliver the possession of the portions encroached but 5 the defendants did not comply and therefore, the review applicants­plaintiffs got measured the lands on 28­11­1991 and since the encroachment of 4 Ares and 2 Ares were found to have been committed, suits were filed for possession of encroached portions and mesne profit. 4. The trial Court dismissed the suits. The appeals were filed in the District Court, Sangamner and Ad hoc District Judge­1 Sangamner heard both the appeals which were R.C.A. No. 741/2000 and R.C.A. No. 950/2000 and he set aside the judgment and decree passed by the trial Court and remanded the matters. As against the order of remand, Appeal from Order No. 89/2008 and Appeal from Order No. 90/2008 came to be filed by the respondents in these review petitions, and this Court by order dated 27­07­2009 allowed the appeals from orders and set aside the order of remand and dismissed R.C.A. No. 741/2000 and R.C.A. No. 950/2000. 6 5. Shri. R.D. Bhalerao, Advocate submitted that in R.C.S. No. 127/1992 the Court did not frame proper issues. In fact, issue Nos. 1 and 2 were not at all relevant. The first issue was to the effect that whether the suit property was in possession of the plaintiffs and second issue was whether the defendants are illegally attempting to encroach upon the suit property. In fact, it was the case that the plaintiff was in possession of the suit property and the defendants had encroached upon portions of the suit property. Though the issues were not properly framed in R.C.S. No. 127/1992, they are properly framed in R.C.S. No. 126/1992 (which ultimately resulted in filing Review Petition No. 134/2009.) However, from the judgments, it does not appear that the parties were mislead or Judge did not apply his mind to the actual issues in controversy. Shri. R.D. Bhalerao, Advocate drew my attention to the judgment in R.C.S. No.127/1992 and particularly referred to Para. 10 which contains reasons for 7 dismissal of the suit. Learned Advocate also pointed out the map dated 02­08­1991 produced on record and which is said to be 'kaccha hath Nakasha' (rough sketch). It shows the lands of the plaintiffs on the western side and lands of the defendants on eastern side, separated by a road. Learned Advocate also argued that the land of review applicants is on the upper level than the land of the defendants and therefore, encroachment could not be made by the review applicants. 6. This Court has taken view that since admittedly there is a pakka road of 15 feet width between the lands of the plaintiffs and defendants (which was not disclosed in the plaint), it could not be believed that the defendants could directly encroach into the land of plaintiffs, without encroaching upon the road which was between the lands. It is also observed that if there was any encroachment, it 8 might be due to widening of the road. 7. Shri. R.D. Bhalerao, learned Advocate further argued before this Court that it is the case of the plaintiffs that the defendants have made encroachment beyond the road as shown in the said rough sketch. 8. On the other hand, Shri. R.L. Kute, Advocate for the respondents pointed out that the plaintiffs and defendants are owners of portions of Survey No. 64 and it has come in the evidence that there was no record of sub­ divisions of Survey Nos.64/1, 64/2, and 64/3 and in absence of such authentic official record, no boundaries of pot hissas cannot be ascertained. It is true that in the last sentence in Para. 9 of the judgment error is committed and instead of words "would not subserve cause of justice" words " subserve cause of justice" were typed. But that is clear from Para. 11 and other discussion. 9 9. Shri. R.D. Bhalerao, learned Advocate for the review applicants argued that the appeals have to be argued and the dismissal of appeals before the District Court by this Court was not right. If we consider the reasons given by this Court, it is clear that the Court has considered the entire evidence and considered whether there was justification for remanding the matter. Appeals could have been decided on the evidence on record and particularly when there was no possibility of encroachment directly into the land of the plaintiffs by the defendants when there was 15' wide road between the lands of the plaintiffs and defendants. 10. Shri. R.D. Bhalerao, learned Advocate relied upon several authorities. In the case of Ramchandra s/o Bhikaji Jagtap vs. Dudharam Langruji Padvekar (dead thru LRs), 2003(4) ALL MR 990 and Kisanlal Maniklal Rathi vs Dinkar 10 Yashwant Patil, 2003(4) ALL MR 1083 Single Bench of this Court has held that the Court has discretion to order local investigation. Object of local investigation is not so much to effect evidence which can be taken in Court, but to obtain evidence which from its peculiar nature, can only be had on the spot. He also referred to Para. 22 in the case of Jamshed Hormusji Wadia vs. Board of Trustees, Port of Mumbai and another, 2004(3) SCC 214 wherein Supreme Court observed that the Division Bench certainly assumed a wider field of jurisdiction than the one which had been permitted by the Court and entered into examining the whole controversy afresh and as if all the contentions of all the parties were open before it. Court to consider whether there was necessity of remand for fresh trial to the trial Court or whether the appeals could have been decided by the District Court without remand on the material that has been placed on record and for that purpose, Court was 11 compelled to consider the pleadings and material before the Court. 11. In the case of Kantabai Shivaji Gadakh vs. Jagannath Bhika Gadakh and others, 2006(3) Mh.L.J.152, the Court laid down that for entertaining an Appeal from Order under Order 43, Rule 1(u), it must contain a substantial question of law as contemplated under Section 100 of the Code of Civil Procedure. In this case, remand orders were challenged and the Court was called upon to consider whether remand orders were legal and proper?. In the case of Kashinath Chindhuji Shastri vs. Haribhau Nathuji Bawanthade, 2004(2) Mh.L.J. 722, the Single Bench of this Court considered the dispute about encroachment or dimension of site and it was held that the Commissioner should be appointed. It is argued that the view taken by the District Court for appointment of the fresh Commissioner for taking measurement should be upheld. 12 12. Shri. R.D. Bhalerao, Advocate also relied on the case Vivek Damodar Malvi vs. Vaidehi d/o Damodar Malvi, 2009(5) Mh.L.J. 485. In that case, this Court laid down that the judgment of the lower Appellate Court did not comply with mandate of Order 41, R. 31 of the Code of Civil Procedure thereby raising substantial question of law on the decree under appeal resulting in doing justice between the parties. In view of section 99 of the Code of Civil Procedure, second appeal need not be admitted merely because of error of procedural nature. 13. Shri. R.L. Kute, learned Advocate argued that the Review Petitions have limitations. There must be mistake apparent on the face of the record. The entire appeal cannot be reopened. It is not a rehearing of the matter. He argued that the argument advanced by the Advocate of the review applicants are on factual 13 aspects and this Court, should not consider the same, and the remedy is by way of an appeal. He also referred to Para. 10 and 11 of the judgment of this Court. He also argued that there was no averments in the plaint regarding the road and that the encroachment is beyond the road and a new case is sought to be made out at the time of arguing Appeal from Order. He relied on two authorities. First is Lily Thomas, etc. vs. Union of India, AIR 2000 SC 1650. Relevant Para 55 of this judgment reads as under. "55. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of binding nature of the larger Benches and not 14 taking different views by the Benches of co­ordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Art. 136 or Art. 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment". Second authority cited by Shri. R.L. Kute, Advocate is M/s. Northern India Caterers (India) Ltd. vs. Lt. Governor of Delhi, AIR 1980 SC 674. Relevant Para. 8 and some portion from Para.9 of this judgment read as under. "8. It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial 15 and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan (1965) 1 SCR 933 at p.948. For instance, if the attention of the Coiurt is not drawn to a material statutory provision during the original hearing, the Court will revise its judgment. G.L. Gupta v. D.N. Mehta (1971) 3 SCR 748 at p. 760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N. Mohindroo v. Dist. Judge, Delhi (1971) 2 SCR 11 at p. 27. Power to review its judgments has been conferred on the Supreme Court by Art. 137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art. 145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O.XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1 Supreme Court Rules, 1966). But, whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered 16 except 'where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility'. Chandra Kanta v. Sheikh Habib (1975) 3 SCR 935. (9) We may also examine whether the judgment suffers from an error apparent on the face of the record. Such an error exists if of two or more views canvassed on the point it is possible to hold that the controversy can be said to admit of only one of them. If the view adopted by the Court in the original judgment is a possible view having regard to what the record states, it is difficult to hold that there is an error apparent on the face of the record". 14. In my considered view, after giving anxious consideration to all the aspects argued by both the Advocates, Review Petition has its own limitations and in the facts and circumstances, there is no error apparent on the face of record. Court has considered the evidence properly and dismissed the appeals before the District Court, after setting aside the order of remand. There cannot be rehearing. This is not 17 fit case to entertain review applications. Review Petitions are dismissed accordingly. [ P.R. BORKAR, J.] sut/NOV09/ra134.09