The petitioners are the defendants in O.S.No.431 of 1971 on the file of the Principal District Court, Kuzhithurai. This review petition is filed to review the judgment and decree passed in S.A.No.1094 of 1982, dated 09.03.1993.
2.One Sadasivam Pillai, the predecessor of the respondents, instituted the suit seeking declaration of title to the suit property and for permanent injunction or in the alternative of recovery of possession with mesne profits.
3.According to the plaintiff Sadasivam Pillai, he became the absolute owner of the property in dispute, by virtue of a sale deed, dated 02.02.1971 to an extent of 3 Acres 98 cents in Survey No.441/7/2. The defendants contended that the sale deed, dated 02.02.1971 was executed by an incompetent person. So, the plaintiff has no right, title or possession over the property and the entire property in Survey No.447/7/3 and other properties were allotted to the defendants 1 to 3 and they are in possession and if there is any excess land, they have perfected title by adverse possession.
4.The trial court and the first appellate court dismissed the suit. The concurrent finding was set aside by this court in the second appeal in S.A.No.1094 of 1982.
5.Learned counsel for the petitioners submitted that the Hon'ble Apex Court has observed in the order that the grounds raised by the defendants about the discrepancies in the boundaries and their perfected title to the property, were not considered by the High Court and only to that finding, this review petition is filed. Though many grounds were raised in the review petition, but the learned counsel restricted his arguments only the ground, which was raised before the Hon'ble Supreme Court.
6.Mr.K.N.Thampi, learned counsel for the respondents contended that the Special Leave Petition was disposed of without notice to the respondents and the observations have been made only on the basis of the argument made by the counsel for the respondents, but in fact, those grounds have not specifically taken in the written statement. It was further contended that in the written statement filed by the petitioners, they have claimed possession over the property in Survey No.441/A/3 and there is no specific pleading with regard to adverse possession, but even then the Hon'ble Judge has considered the plea of adverse possession and rejected the same and the scope of judicial review is narrow campus and unless, the petitioner establishes that there is an error apparent on the face of record, no review is permissible. In support of the argument, the following decisions have been relied on:-
?01.(1997)8 SCC 715 [Parsion Devi and others vs. Sumitri Devi and others, wherein, it has been held as follows:-
? 9.Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has limited purpose and cannot be allowed to be "an appeal in disguise."
10.Considered in the light of this settled position we fine that Sharma, J. clearly over-stepped the jurisdiction vested in the court under Order 47 Rule 1 CPC. The observation of Sharma, J. that "accordingly", the order in question is reviewed and it is held that the decree in question is reviewed and it is held that the decree in question was of composite nature wherein both mandatory and prohibitory injunction were provided" and as such the case was covered by Article the scope of Order 47 Rule 1 CPC. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of the review jurisdiction. While passing the impugned order, Sharma, J. found the order in Civil Revision dated 25.4.1989 as an erroneous decision, though without saying so in so many words. Indeed, while passing the impugned order Sharma, J. did record that there was a mistake or an error apparent on the face of the record which not of such a nature, "Which had to be detected by a long drawn process of reasons" and proceeded to set at naught the order of Gupta, J. However, mechanical use of statutorily sanctified phrases cannot detract from the real import of the order passed in exercise of the review jurisdiction. Recourse to review petition in the facts and circumstances of the case was not permissible. The aggrieved judgment debtors could have approached the higher forum through appropriate proceedings, to assail the order of Gupta, J. and get it set aside but it was not open to them to seek a "review of the order of petition. In this view of the matter, we are of the opinion that the impugned order of Sharma,J. cannot be sustained and accordingly accept this appeal and set aside the impugned order dated 6.3.1997.?
2.AIR 2007 SUPREME COURT 2010 [Union of India vs. B.Valluvan], wherein it has been held as follows:-
?16.The Division Bench of the High Court committed a serious error in entering into the merit of the matter while exercising its review jurisdiction. The court's jurisdiction to review its own judgment, as is well known, is limited. The High Court, indisputably, has a power of review, but it must be exercised within the framework of Section 114 read with Order 47 of the Code of Civil Procedure. The High Court did not arrive at a finding that there existed an error on the face of the record. In fact, the High Court, despite noticing the argument advanced on behalf of Union of India that the 1st Respondent had no legal right to be appointed, proceeded to opine that the panel prepared for filling up of future vacancies should be given effect to. The review of the High Court was not only contrary to the circular letter issued by Union of India, but also contrary to the general principles of law.?
3.2007(5) CTC 588 [Rajeswari and another vs. Sri Bhuvaneswari Cycle Mart], it has been held as follows:-
?The said provision will make it very clear that review of the order is possible under three circumstances namely,
(i) on discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of a party who could not produce the same in time; or
(ii) when there is an error apparent on the face of the record; or
(iii) for some other sufficient reason.?
4.(1995)1 SCC 170 [Meera Bhanja (smt) vs. Nirmala Kumari Choudhury (smt), wherein it has been held as follows:-
?15.In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its jurisdiction under Order 47, Rule 1 CPC by merely styling the reasoning adopted by the earlier Division Bench as suffering from a patent error. It would not become a patent error or error apparent in view of the settled legal position indicated by us earlier. In substance, the Review Bench has re-appreciated the entire evidence, sat almost as court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench's findings regarding C.S. Plot No. 74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1 CPC. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It could not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8-7-1986 of the Division Bench dismissing the appeal from Appellate Decree No. 569 of 1973 insofar as C.S. Plot No. 74 is concerned as well as the review judgment dated 5-9-1984 in connection with the very same plot, i.e., C.S. Plot No. 74, are set aside and the earlier judgment of the High Court dated 3-8- 1978 allowing the second appeal regarding suit Plot No. 74 is restored. The appeal is accordingly allowed. In the facts and circumstances of the case, there will be no order as to costs.?
7.I have heard the rival submissions and perused the materials available on record.
8.In the instant case, it is seen that the suit was filed claiming title over the property, based on a registered sale deed, dated 02.02.1971. In the written statement, there is no specific averment claiming adverse possession of the suit property in Survey No.441/7/2 and on the other hand, the petitioners/defendants claimed exclusive possession in Survey No.441/7/3. In the written statement, there is no averment that the 1st plaintiff was a document writer and taking advantage of the discrepancies in the boundaries, he purchased the properties. It is also seen that the petitioners/defendants have not claimed title over the suit property, but there is a mere denial of the case of the plaintiff.
9.It is seen that on 05.03.1993, after hearing the arguments of both sides, and considering the oral and documentary evidence, this court in a detailed judgment having found that the plaintiff was the owner of the suit property, and while rejecting the case of the respondents that the defendants had perfected title, ordered recovery of possession. The defendants' appeal to the Hon'ble Supreme Court, was dismissed on 04.08.1995.
10.It is further seen that when the Special Leave Petition was listed for admission, it was contended by the learned Counsel for the defendants that the plaintiff was not a bona fide purchaser and there are discrepancies in the boundaries and the concurrent finding was reversed without taking into consideration the fact that the defendants have been in possession and enjoyment of the suit property well over 50 years and they have perfected title by prescription. While dismissing the SLP, liberty was given to the defendants to file review petition on those aspects.
11.A perusal of the judgment passed in the second appeal reveals that this court has dealt with the argument of the learned counsels on the ground of plea of adverse possession and negatived the case of the defendants. It is settled law that the scope of review is limited and in the light of the principles laid down in the decisions referred supra and the facts narrated above, this court finds no merit in the review petition. In the result, the review petition fails and the same is dismissed. No costs.
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