The appellants/plaintiffs in the second appeal are the petitioners in the review application.
2.The suit in O.S.No.221 of 1978 was filed on the file of the Sub-ordinate Judge, Ooty by the appellants/plaintiffs seeking declaration of their title and also for permanent injunction.
3.On consideration of the evidence let in by both the parties, the trial Court decreed the suit only in respect of declaration of title. But in so far as the relief of injunction sought for by the appellants/plaintiffs, the suit was dismissed by holding that the appellants/plaintiffs were not in possession of the suit property at the time of institution of the suit.
4.The appellants/plaintiffs filed an appeal before the lower Appellate Court in so far as the dismissal with respect to the relief for injunction. The respondent/defendant also filed a cross-objection in so far as the decree granted in favour of the appellants/plaintiffs with respect to the declaration of title to the suit property.
5.Pending first appeal, the appellants/plaintiffs filed an I.A.No.1838 of 1980 in A.S.No.84 of 1980 praying for an amendment to include the relief of recovery of possession by way of an alternative relief. The said application was allowed and necessary amendment was introduced in the plaint. The respondent/defendant was permitted to file an additional written statement and as a result of which an additional issue was also framed. The first Appellate Court called for findings from the trial Court on the additional issue relating to limitation and adverse possession pleaded by the respondent/defendant.
6.On consideration of the evidence on record, the trial Court gave its finding that the defendant has not prescribed title to the suit property by adverse possession. The first Appellate Court thereafter dismissed the suit in its entirety by dismissing the appeal filed by the appellants/plaintiffs and allowing the cross-objection filed by the respondent/defendant holding that the respondent/defendant has prescribed title by adverse possession.
7.Aggrieved by the dismissal of the suit in its entirety, the appellants/plaintiffs filed the second appeal before this Court. The following substantial questions of law were framed for consideration:
1.Whether the learned Judge has correctly interpreted the terms of Ex. A-1?
2.Whether the clause in Ex.A-1 to the effect that the properties allotted to Nanjundiah Gowder would cease to be his properties if he failed to pay the amounts directed to be paid to the other brother is valid in law?
3.Whether the learned Judge is right in holding that the suit is barred by limitation and adverse possession, when there is no evidence to prove the possession of the defendant for over 12 years?
8.This Court while disposing of the Second Appeal finally accepted the findings of the trial Court that the properties vested in Nanjundiah Gowder under Ex.A1 and the conditions imposed thereunder would not defeat the rights of Nanjundiah Gowder or bring about the divestment of the property. In other words, the findings of the first Appellate Court that title to the property did not pass on to Nanjundiah Gowder under Ex.A1 was rejected by this Court.
9.This Court also made an observation that the findings of the trial Court is based on proper appreciation of evidence and therefore the vague findings of the Appellate Court with regard to possession by way of adverse possession and ouster cannot be sustained. Ultimately, this Court answered the points holding that the trial Court has correctly interpreted the terms of Ex.A1. This Court also made an observation that the respondent/defendant failed to prove adverse possession and therefore the suit is not barred by limitation. Having observed that the findings of the first Appellate Court cannot be sustained, the second appeal was dismissed.
10.The present review petition was filed by the appellants/plaintiffs. This Court after giving notice to both the parties and also to the learned counsel for the respondent/defendant chose to allow the review petition, but quite unfortunately, the name of the learned counsel for the respondent/defendant was not printed. While allowing the review petition, this Court observed that the findings given by this Court were only in favour of the appellants/plaintiffs. The result must be only in accordance with the findings. A portion of the judgment in the second appeal was not consistent with the findings given therein. This Court having observed that it was an error found apparent on the face of the records, allowed the review petition and consequently, the second appeal by decreeing the suit in its entirety.
11.The respondent/defendant filed a special leave petition before the Supreme Court on the ground that no notice was served on him in the Review Petition. The Supreme Court was pleased to allow the special leave petition and directed the review petition to be reheard.
12.On remand, this Court gave an opportunity to both the counsel and dismissed the review petition holding that the respondent/defendant has prescribed title by adverse possession and the suit also is barred by limitation. The main findings given by this Court in the judgment originally passed in the second appeal were thus reversed.
13.As against the dismissal of the review application, the appellants/ plaintiffs filed special leave petition before the Supreme Court. The Supreme Court allowed the special leave petition and remanded the matter to this Court again to decide the review petition filed by the appellants/plaintiffs in accordance with law.
14.The Supreme Court while disposing of the special leave petition reiterated the legal possession that once the amendment of plaint has been allowed, the amendment would relate back to the date of institution of the suit and therefore the relief of recovery of possession sought for by the appellants/plaintiffs was well within the period of limitation.
15.In the background of the aforesaid observation made by the Supreme Court in the special leave petition, the learned counsel appearing for the appellants/plaintiffs would submit that all the findings have been rendered only in favour of the appellants/plaintiffs and that therefore, the result of the second appeal which is not consistent with the findings will have to be corrected.
16.The learned counsel appearing for the respondent/defendant would submit that this Court while disposing of the second appeal has proceeded on the premise that the suit was one for declaration of title and also for permanent injunction. The claim of recovery of possession was not dealt by this Court while disposing of the second appeal. It is not permissible to correct an erroneous decision on rehearing, he would submit. As there is no finding with respect to the relief of recovery of possession sought for by the appellants/plaintiffs, this Court has rightly dismissed the appeal, he would submit.
17.This Court while disposing of the second appeal has observed that the trial Court has rightly declared the title of the appellants/plaintiffs. It has also found that the suit is not barred by limitation. The respondent/defendant also failed to prove adverse possession, it was further observed.
18.In the background of the aforesaid major findings rendered by this Court, the appeal should have been allowed but by oversight, it is found that the appeal was dismissed. The result of the appeal is not found in consonance with the findings rendered by this Court. The result of the second appeal recorded by this Court is found to be an error apparent on the face of the record.
19.In the exercise of jurisdiction under Order 47 Rule 1 of the Code of Civil Procedure, it is not permissible to rehear and correct the erroneous decision. Of course, a review petition has a limited purpose. A review petition cannot be an appeal in disguise. But in this case, it is not the erroneous decision which is sought to be reheard and corrected. The result portion of the judgment which does not match with the findings of this Court is sought to be corrected by way of review. Such a course is quite possible under the scope of Order 47 Rule 1 of the Code of Civil Procedure. Further, this Court has ample jurisdiction under the aforesaid provision of law to correct an error which is manifest on the face of record.
20.Though there is no elaborate discussion with respect to the relief of recovery of possession, the observation made by this Court in the second appeal that the respondent/defendant failed to establish prescription of title by adverse possession directly deals with the relief sought for by the appellants/plaintiffs for recovery of possession.
21.In view of the above facts and circumstances, the result portion of the second appeal stands reviewed as follows:
"In the result, the appeal is allowed. There is no order as to costs."
Note:
Registry is directed to carry out the order passed in the review petition in the judgment and decree of the second appeal disposed of by this Court on 21.07.1997.
gm