Advocate List

• M.K. Bhaskaraiah, for the Appellant; G.S. Venkat Subbarao, Advocates for the Respondent
• JUDGMENT
• A.V. Chandrashekara, J.?The order dated 10.11.2011 passed in Review Petition No. 1/11 arising out of R.A.28/10 passed by the Civil Judge (Senior Divn.), Sira, is called in question.
• 2. Appellants were the respondents in Review Petition No. 1/11 and also in R.A.28/10 which was pending on the file of the said court. The respondent herein was the sole appellant in the said appeal filed under Section 96, C.P.C. and sole plaintiff in a case in O.S. 177/06 which was pending on the file of Civil Judge (Junior Divn.), Sira. Respondents herein were defendants in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking in the original suit.
• 3. The plaintiff-Habeeb Pasha chose to file a suit for the relief of declaration that he is the absolute owner of ''''''''A'''''''' schedule property and for possession of ''''''''B'''''''' schedule property. The said suit was contested by the defendants on various grounds and on the basis of pleadings of the parties, the following issues came to be framed:
• "1. Whether the plaintiff proves that the father has acquired the suit schedule properties under Partition Deed dated 28.09.1919 and he was in exclusive possession and enjoyment of the same?
• 2. Whether the defendants prove that originally the suit schedule properties belonging to Ghouse sab. After his death, his two Sons, Shaik Farid and Md. Khaleel sab are succeeded the same?
• 3. Whether the plaintiff proves that he and his two brothers are the absolute owners and he is in possession and enjoyment over the ''''''''A'''''''' and ''''''''B'''''''' schedule properties?
• 4. Whether the plaintiff proves that the defendants have occupied the ''''''''B'''''''' schedule property on 31.05.2004 by illegally and unlawfully?
• 5. Whether the defendants prove that they have acquired the suit schedule property under Registered Gift Deed dated 26.03.1980 and they are in lawful possession of the same?
• 6. Whether the plaintiff prove the alleged interference by the defendants?
• 7. Whether the defendants prove that suit is barred by law?
• 8. Whether the plaintiff is entitled for the relief of Declaration and Permanent Injunction?
• 9. Whether the plaintiff is entitled for possession of ''''''''B'''''''' schedule property?
• 10. Whether the plaintiff is entitled for mesne profits?
• 11. What Order or Decree?"
• The plaintiff got examined himself as P.W. 1 and two more witnesses have been examined on his behalf. As many as 27 exhibits have been marked. On behalf of the defendants, the 1st defendant-Abdul Jabbar has been examined and 10 exhibits have been got marked. Ultimately the suit came to be dismissed answering issue Nos. 1, 3 and 8 partly in the affirmative, issue Nos. 5, 6 and 7 in the affirmative and the remaining issues in the negative.
• 4. Against the said judgment and decree, plaintiffs chose to file an appeal under Section 96, C.P.C. before the Civil Judge (Senior Divn.), Sira. The said appeal was contested by the respondents therein and ultimately the appeal was also dismissed. The learned judge of the first appellate court chose to frame the following two points for consideration as found in page 8 of the judgment in R.A.28/10:
• "1. Whether the appellants have made out a ground that, the judgment and decree passed by the Trial Court is not in accordance with law, which needs interference by this Court?
• 2. What Order?"
• Ultimately the learned judge of the first appellate court has held that if really the plaintiff was dispossessed from ''''''''B'''''''' schedule property on 31.5.2004, he could have filed a suit within six months from the date of dispossession for recovery of the same. Instead of doing so, plaintiff chose to file a suit in O.S. 198/04 for permanent injunction only which was dismissed on 24.7.2006 and no appeal was preferred against the said judgment and decree.
• 5. O.S. 177/06 was filed on 10.11.2006 and therefore it was beyond six months from the date of dispossession. According to the first appellate court, the defendant was in possession of the disputed portion as per the Commissioner''''''''s report and plaintiff did not dispute the commissioner''''''''s report and commissioner was also not cross-examined on that aspect. With these observations, the appeal came to be dismissed.
• 6. An application was filed under Order XLVII Rule 1, C.P. C by the appellant with a request to review the judgment and decree passed in R.A.28/10. According to the plaintiffs, the first appellate court has held that ''''''''B'''''''' schedule property is part and parcel of ''''''''A schedule property and that dispossession was established by filing FIR registered against the defendant by Sira police on the basis of first information lodged by the plaintiff in the year 2004 and therefore, the suit filed for the relief of declaration of title and possession is well in time.
• 7. The Hon''''''''ble apex court in the decision reported in the case of Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 : (1960) 1 SCR 890 has held that ''''''''an error which has to be established by a long drawn process of reasoning on points where there may be conceivably be two opinions, can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.''''''''
• 8. Hon''''''''ble apex court in the decision reported in the case of Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 : (1960) 1 SCR 890 , has held that ''''''''A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected, but lies only for parent error; as held by the Hon''''''''ble apex court in the said decision.
• 9. Where without any elaborate argument, one could point an error and say here is a substantial point of law which stares one in the face and there could be reasonably no two opinions entertained about it, a clear case of ''''''''error apparent on the case of the record'''''''' would be made out, as per the decision rendered in Thungabhadra Industries case.
• 10. In the present case, the first appellate court has relied on the FIR which is produced as additional evidence. As could be seen from the records in Crime No. 93/14 on the file of Sira police station, the offences alleged are punishable under Sections 143, 323, 324, 504 read with Section 149, I.P.C. it was considered as a case of interference and not dispossession. It has been further held that even if it is assumed that the plaintiff was dispossessed on 31.5.2004, the suit ought to have been filed within 6 months from the date of dispossession for recovery of the same. Since the suit came to be filed two years after the alleged dispossession in O.S. 177/06, plaintiffs suit is said to be barred by time.
• 11. The trial court has held issue No. 7 in regard to limitation in the affirmative holding that the suit is barred by time since possession was not sought within 12 years from the date of dispossession as per Article 124 of the Limitation Act. The first appellate court has not given any specific finding or opinion about the positive finding on issue No. 7 and has come to the conclusion that dispossession from the date of filing of FIR in Crime No. 93/14 dated 23.5.2004.
• 12. As could be seen from the records of the first appellate court, an application under Order XLI Rule 27, C.P.C. was filed on 12.1.2011 along with a copy of the FIR No. 93/2004 and respondent was granted time to file objections. On 10.1.2011, arguments were heard and the case was posted for judgment to be delivered on 12.1.2011. The judgment was not delivered on 12.1.2011, but was pronounced on 14.1.2011.
• 13. An application filed under Order XLI Rule 27, C.P.C. or Order VI Rule 17, C.P.C. or under Order XXVI Rule 9, C.P.C. or any other interlocutory application other than the one under Order 22 of CPC will have to be heard along with the merits of the case. If for any reason the interlocutory application is to be allowed, the judgment on merits would be deferred. In the present case, no order is passed on the I.A. filed on 4.1.2011. But the said document, copy of FIR in Crime No. 93/14 filed along with the I.A. filed under Order XLI Rule 27, C.P.C. has been considered at the time of hearing arguments in regard to review. This approach of the First Appellate Court is highly incorrect and improper.
• 14. The trial court has already answered issue No. 7 in the affirmative holding that the suit is barred by time. This aspect of the matter has not been properly dealt with in the regular appeal filed in R.A.28/10. Whether the plaintiff was really dispossessed on 23.5.2004 or long prior to the filing of the suit, will have to be decided only while adducing evidence and the trial court has to come to the conclusion that dispossession was 12 years prior to the filing of the suit. Hence issue No. 7 has been answered in the affirmative. Even the regular appeal came to be dismissed and there is no specific finding in regard to limitation.
• 15. While reviewing the judgment passed in R.A.28/10, the court has come to the conclusion that ''''''''B'''''''' schedule property is a part and parcel of ''''''''A'''''''' schedule property and the appellant was dispossessed o 23.5.2004. But an issue of limitation involves mixed question of law and facts and cannot be decided in a review petition.
• 16. It is not as though the appellant in R.A.28/10 had no ground to file second appeal under Section 100, C.P.C. Non-consideration of the interlocutory application under Order XLI, C.P.C. could be a legal ground in an appeal under Section 100, C.P.C.
• 17. The first appellate court has adopted a wrong approach by reviewing the judgment passed in R.S. 28/10. Good grounds are made out to interfere with the impugned order dated 10.11.2011 in Review Petition No. 1/11. Hence the appeal will have to be allowed and the order dated 10.11.2011 will have to be set aside.
• 18. In the result, I pass the following order:

Bench

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