JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against 19.1.2005 passed by Shri S.K.S Yadav, Addl. District Judge in Misc. Case No. 18 of 2002 Varanasi Vikas Pradhikan and Ors. v. Mohan Lal and Ors. whereby the review application was allowed and judgment and decree dated 31.5.2001 passed by his predecessor in Civil Appeal No. 209 of 1985 Mohan Lal v. Varanasi Vikas Pradhikaran was set aside and consequently Civil Suit No. 176 of 1978 Mohan Lal v. Varanasi Vikas Pradhikaran was dismissed.
2. Heard Sri A.N. Bhargava, learned counsel for the Appellants assisted by Sri R.K. Tiwari, Shri Ajit Kumar Singh, learned counsel for the respondents and have gone through the record.
3. It will be significant to mention here that during the pendency of the appeal Mohan Lal appellant died and Smt. Sursati Devi wife of Mohan Lal, his sons and daughters have been substituted as appellants.
4. The fact of the case as revealed from the records is that Mohan Lal filed Civil Suit No. 176 of 1978 Mohan Lal v. Varanasi Vikas Pradhikaran which was finally decided by the IXth Munsif Varanasi and the suit was dismissed on 8.7.1985. The allegations of Mohan Lal was that he is in possession of plot No. 77/6 area ? Acres in Village Lallapura Pargana Dehat Amanat District Varanasi. Earlier Manmohan Das and Jai Kishan Das sons of Kesav Das were its tenure holder and its Khewat and Khata No. was 22 in 1960. Both these persons who were Zamindars obtained Rs. 4 from the plaintiff and permitted to raise house on Plot No. 77/6 and gave possession to Mohan Lal. Since then Mohan Lal remained in possession over the land. He could not raise construction on it but he constructed a Gumti of Tea. On the nearby plot Varanasi Vikas Pradhikaran constructed house under Shastri Nagar Housing Planning on 3.63 Acres land. Since his land is just near to the land of Varanasi Vikas Pradhikaran the value of the plot No. 77/6 was increased and many persons tried to take possession of this land. Total area of Plot No. 77 Mohalla Lallapura Varanasi was 4.16 Acres out of which Sastri Nagar Houses were constructed on 3.63 Acres but no construction was made on plot No. 77/6 nor it was acquired by Varanasi Vikas Pradhikaran. Road was constructed on nearly plot No. 76 and not on plot No. 77. On 15.3.78 some employees of Varanasi Vikas Pradhikaran wanted to take forcible possession of the land with the help of the police and thereafter the suit was filed for permanent prohibitory injunction to take possession of the land.
5. Varanasi Vikas Pradhikaran contested the suit and filed written statement that area of plot No. 77 was 4.10 Acres and the whole land was acquired for construction of Shastri Nagar Housing Planning. The land was acquired from the year 1962 to 1968. Part of the land was used for road and on rest portion of the plot No. 77 houses were constructed under Shastri Nagar Planning and the plaintiff had no right to remain in possession. After appreciating the evidence the learned Munsif dismissed the suit and held that land was acquired by Varanasi Vikas Pradhikaran which is in possession of the land since 1962. The area of plot No. 77 is 4.10 Acres, no plot number was marked on it. Neither the plaintiff is the owner nor is in possession of it.
6. After the suit was dismissed on 8.7.1985 by the leaned IXth Munsif Varanasi Civil appeal No. 209 of 1985 Mohan Lal v. Varanasi Vikas Pradhikaran was preferred. After the discussion of the evidence Shri Ghanshyam Pandey the then 4th Addl. District Judge Varanasi allowed the appeal on 31.5.2001 and held that there was Bata number of plot No. 77. The land in dispute was plot No. 77/6. Earlier it was in the possession of Zamindars Manmohan Das and Jai Kishan Das from whom after giving Nazrana the land was taken by Mohan Lal and since then he is in possession and raised Gumti Stall and shop of Tea. There are papers in support of his contention and after detailed discussions the appeal was allowed, order passed by the learned Munsif was set aside and the suit was decreed on 31.5.2001. Later on 13 months after the appeal was decided on 31.5.2001 Review application was moved before Shri S.K.S. Yadav Additional District Judge Court No. 5 Varanasi to review judgment dated 31.5.2001. After hearing the learned counsel for the parties he allowed the review application and set aside the judgment dated 31.5.2001 and after making discussion of the evidence dismissed the suit and confirmed the judgment delivered by the Additional Munsif on 8.7.1985.
7. Instant appeal has been preferred on the ground that when judgment dated 31.5.2001 was delivered after appreciating the evidence of the parties by the Addl. District Judge it could not be set aside about 4 years the decision of the appeal in review application by the Court. Even the review application was moved 13 months after the appeal was decided on 31.5.2001. Judgment of review dated 19.1.2005 has been delivered as if Shri S.K.S. Yadav Addl. district Judge, Varanasi was hearing appeal against the judgment dated 31.5.2001 passed by Shri Ghanshyam Pandey, Addl. District Judge who had earlier decided the appeal on merits. It is submitted that error apparent on the face of record can be corrected in review application but mistakes in appreciation of evidence or appreciation of facts of the case cannot be made and the same court cannot discharge the duty of appeal while sitting in Review application.
8. A perusal of the judgment dated 31.5.2001 shows that a detailed discussion was made as to whether there was Bata in plot No. 77 or not. The case of the plaintiff was that Plot No. 77/6 was the plot which was in possession and in respect of which Nazrana was given by him and its possession was given by Zamindar in the year 1962. Varanasi Vikas Pradhikaran denied that there was any Bata number in plot No. 77. The learned Addl. District Judge by order dated 31.5.2001 held that some papers were filed to show that there were plot No. 77/6 and 77/3 in respect of which there was revenue record. Copy of Khatauni from 1403 to 1408 Fasli paper No. 49C was filed which was in the name of Chandra Bhushan Shah and Indra Bhushan Shah. It was Minjumla 77/3 area 57 Acre. Even in Nagar Mahapalika Plot. No. 77/3 was noted down, thus it was held that if plot No. 77 would not have been divided into Bata in revenue record, Bata would not have been found. It was further observed that Varanasi Vikas Pradhikaran or Nagar Mahapalika which was maintaining the revenue record could proved whether there was Bata or not while its employee who was D.W.1 Sri Kamla Prasad Chaubey stated that he does not know how many Bata were in plot No. 77 but he stated that there was Gumti of Tea and Betel of Mohan Lal on a portion of Plot No. 77. He also stated that the land was in possession of the Zamindar of the area. It could not be denied by Nagar Mahapalika that it was in possession of Mohan Lal and the case of Nagar Mahapalika was that he was in unauthorized possession of Plot No. 77/6. Learned Addl. District Judge also discussed the evidence and held that the total area of Plot No. 77 was 4.16 acre while 4.10 only was acquired by Nagar Mahapalika and construction was made and remaining land was not acquired. Thus a detailed discussion was made when appeal was decided on 31.5.2001, but while deciding the review application the Addl. District Judge held on 19.1.2005 that Nanhu Pandey stated that area of Plot No. 77 was 4.10 acre and therefore, it was held in review application that area of plot No. 77 was only 4.10 acre and not 4.16 acre and held that according to record of 1291 Fasli it was only 4.10 Acres which was acquired by Varansi Vikas Pradhikaran. It was also held that original record of the case were destroyed in fire which did take place in Civil Court, Varanasi, therefore, the records were reconstructed and original record being not available the record of 1291 Fasli was being on. On this ground the judgment of appeal which was delivered on 31.5.2001 was recalled and the appeal was dismissed and consequently the suit also stood dismissed.
9. A perusal of the judgment dated 31.5.2001 and order dated 19.1.2005 which was passed or review application shows that Shri S.K.S. Yadav Addl. District Judge who was hearing the review application did not agree with the finding made by Shri Ghan Shyam Pandey, the then Addl. District Judge, Varanasi who had decided the appeal on merit and discussion was made on oral and documentary evidence in respect of Bata of Plot No. 77 right of Zamidar to issue receipt and give possession of the land for construction of houses validity of Parzevat or permission to make construction of the house, possession of the land and there being no acquisition of the disputed land by Varanasi Vikas Pradhikaran and also the existence of Gumti and Tea shop of plaintiff and one shop of Shailoon being given by the plaintiff on rent, it was not open in review application to discuss only oral evidence of one witness or one paper of revenue record and thereafter to set aside the whole finding made in the appeal. The Addl. District Judge has decided the review application in such a manner as if he was sitting in appeal against the judgment dated 31.5.2001 which was passed by his predecessor.
10. The appellant court held that area of Plot No. 77 was 4.16 Acre on the basis of extract of Khatauni of 1291 Fasli and other papers. While disposing of review application it was held that record of 1291 Fasli was not available and therefore, there was no paper to hold that area of Plot No. 77 was 4.16 Acre land. Thus Court reviewing the appellate order did not only ignore the evidence which was discussed by the appellate court but also collected additional evidence and examined one witness to arrive at the conclusion that the finding made by his predecessor in appeal suffered from error. Another reason was given that original record was burnt in fire which had taken place in the Civil Court and therefore also there was not sufficient material to arrive at the conclusion. The same position was not only when the order of review was being passed but also when the appeal was finally decided. Loss of the record does not mean that the order passed by the predecessor in appeal is to be set aside or the evidence is to be appreciated afresh. The judge disposing of the review application also held that if any mistake is committed by his predecessor it could be corrected by the successor in review application. According to his opinion any mistake which is committed in deciding the appeal can be reviewed. Position of law is not such as is evident from the law laid down by the Hon'ble Apex Court and this Court.
11. In Parsion Devi and Ors. v. Sumitri Devi and Ors. (1997) 8 Supreme Court Cases 715 has been held by the Hon'ble Apex Court that:
"Under Order 47, Rule 1 CPC a judgement 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 an error apparent on the face of the record justifying the court to exercise its power of 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". 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 latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and can not be allowed to be "an appeal in disguise".
Thungabhadra Industries Ltd. v. Govt. of A.P. AIR 1964 SC 1372: (1964) 5 SCR 174. and Meera Bhanja v. Nirmala Kumari Choudhary, (1995) 1 SCC 170 Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 were relied on."
12. In 2001 Ald. C.J. Page 259 Santosh Kumari v. Nageshwar Prasad, it has been laid down by this Court that under Order 47 Rule 1 CPC the Court has limited scope Reviewing Court cannot sit in appeal on the order of its predecessor and it cannot assess the evidence. The review is possible only when there is discovery new and important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced at the time when the decree was passed or there was mistake or error apparent on the face of record or there is any other sufficient reason.
13. In Smt. Meera Bhanja v. Nirmala Kumari Choudhary AIR 1995 SCC 455 it was laid down "error apparent on the face of record "means an error which strikes one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivable be 2 opinion. In Hari Vishnu Kamath v. Ahmad Ishaq AIR 1955 SC 233 it was held that no error can be said to be apparent on the face of record, if it was not self evident and requires examination or argument to establish it.
14. In the case the appellate Court after appreciating the evidence made finding about the right and position of the appellant (sic) of the land and there was no error apparent on the face of record, still additional evidence was recorded and a ground was made that there was error and it was being corrected. No new fact was brought to the notice of the Court and still the review application was allowed. Thus the impugned order has been passed contrary to the principle laid down by Hon'ble Apex Court and this Court in respect of the review power of the Court.
15. The learned counsel for the respondent had cited 2000 (6) SCC 224 Lily Thomas and Ors. v. Union of India wherein it has been aid down by the Hon'ble Supreme Court that review is not an appeal in disguise. It purpose is to ensure that justice is not defeated and that errors leading to miscarriage of justice are remedied. Power of review cannot be exercised merely to substitute a point of view. Errors requiring review are those which are patent and apparent from the face of the record and are errors of inadvertence and not those that need be fished out. Review order may be called for where new and important matter has been discovered, which after exercise of due diligence was not within the knowledge of the petitioners at the time of passing of the judgment under review. The power of review of Civil Court or Additional District Judge differs from the power of Hon'ble Apex Court under Article 32, 36, 137 and 141 of the Constitution of India. Therefore, it has been laid down in Lily Thomas case by Hon'ble the Apex Court that where the Apex Court is satisfied that if earlier judgment has resulted in depriving the petitioner of fundamental or other rights, it may take a different view from that expressed in the earlier judgment. Taking a different view in latter judgment is different from reviewing the order. Moreover the power of Additional District Judge under review differs from the power of the Hon'ble Apex Court as mentioned above on reasons taking a different view. In latter case decision does not mean to change the judgment which was delivered earlier. Therefore the contention of the respondent is not maintainable that the Court can change the judgment which has been delivered by it if latter finds that there is mistake in it. It has been laid down in this case by Hon'ble Apex Court that the power of review is not inherent power which is conferred by law.
16. Thus the position of law is clear that a Court cannot correct is a wrong decision has been made in a particular case. If evidence has been appreciated and thereafter the judgment has been delivered with reasons it cannot be reviewed on the ground that there is mistake in the judgment or some more evidence was required to be adduced or some debatable points were not considered. The review application is to be allowed only when the error is apparent on the face of record, but in the instant case by passing the impugned order the whole judgement was reversed under the garb of the review while there was no error apparent on the face of record an it was done after noting down that some of the papers which were discussed in appeal were not available and some evidence was collected and statement of one witness was recorded and some papers were summoned form the office. While passing review order, the Judge relied on the statement of such a witness who does not maintain his register in his official capacity. He anyhow knows Urdu and can only read it and he was asked to translate it into Hindi and after summoning one paper from him, it was held that the area of land was 4.10 Acre as was alleged by the respondent and not 4.16 Acres as was alleged by the appellant.
17. Thus the impugned order is manifestly erroneous and illegal and it deserves to be set aside.
18. Appeal is allowed and order dated 19.1.2005 passed by the Additional District Judge Court No. 5 Varanasi in Misc. Case No. 18 of 2002 allowing review application is set aside.