Dismissed

Badan Kanwar v. Bheem Singh

Rajasthan HC17 Feb 2023CRW/4/2020

Case brief

AI extract

What is this about?

The Rajasthan High Court dismissed a civil review petition under Order 47 Rule 1 CPC. The Court held that the impugned judgment had dealt with the issues of limitation and competency regarding khatedari rights. It found no patent error, characterizing the review as an attempt to appeal on merits, and rejected the claim that documents annexed with a miscellaneous application were non-existent.

What did the court decide?

The review petition is dismissed; the judgment dated 28.08.2017 in S.B. Civil Second Appeal No.169/2013 is upheld.

Badan Kanwar Vs Bheem Singh — Property and Title | Rajasthan HC (2023)

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[2023/RJJD/005759]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Review Petition No. 4/2020

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Badan Kanwar W/o late Shri Padam Singh, by caste Rajput, aged about 72 years, resident of Kallakheri Badlawali, Tehsil Nathdwara, District Rajsamand.

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----Petitioner

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Versus

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Bheem Singh S/o late Shri Mohan Singh, by caste Rajput, resident of Kallakheri Badlawali, Tehsil Nathdwara, District Rajsamand.

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----Respondent

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For Petitioner(s)	: Mr. Manish Shishodia, Sr. Advocate
	assisted by Mr. Anirudh Khatri and
	Mr. JaideepSingh
For Respondent(s)	: Mr. Narendra Thanvi

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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17/02/2023

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The present review petition has been preferred against the judgment dated 28.08.2017 passed in S.B. Civil Second Appeal No.169/2013 whereby the second appeal as preferred by the plaintiff-Badan Kanwar has been dismissed.

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It is an admitted fact that against the judgment dated 28.08.2017, an SLP was preferred by the plaintiff-appellant before the Hon’ble Apex Court which was disposed of on 09.01.2020. The order of the Hon’ble Apex Court dated 09.01.2020 has been placed on record today by learned counsel for the petitioner which reads as under:

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“Heard the learned counsel appearing for the petitioner.

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Number of opportunities have been granted but again adjournment is sought on the ground

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that the Review Petition is still pending before the High Court.

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We are not inclined to entertain this Special Leave Petition any longer without expressing any opinion on the merits of the case.

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The Special Leave Petition is, accordingly, dismissed.

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Once the Review Petition is decided, it shall be open to the petitioner to approach this Court again if so advised.”

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Therefore, the present review petition has been pursued by learned counsel for the petitioner with the submission that as the Hon’ble Apex Court did not go into the merits of the impugned judgment, the grounds as raised in the review petition can be considered by this Court.

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On merits, learned counsel for the petitioner submitted that the judgment dated 28.08.2017 deserves to be reviewed firstly on the ground that the application under Order 41 Rule 27, CPC as preferred by the petitioner in the second appeal was not considered and was dismissed summarily only by one sentence as under:

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“For the same reason, the misc. application filed by the appellant-plaintiff under Order 41 Rule 27, CPC is also required to be dismissed and the same is hereby dismissed.”

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Learned counsel submitted that the documents as filed along with the application under Order 41 Rule 27, CPC were the documents which had come into existence after passing of the impugned judgment and were the specific documents to prove possession of the plaintiff and therefore, ought to have been considered and ought to have been taken on record by the Court. The rejection of the application without any consideration is therefore, bad and the same deserves to be reviewed. The

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second ground raised by learned counsel is that the suit was not barred by limitation and the finding of the learned Courts below on the said issue has not been dealt with by the Appellate Court. Thirdly, it has been submitted that in terms of Sections 6 & 42 of the Transfer of Property Act, 1882, husband of the plaintiff was not competent to execute the sale-deed in favour of the defendant as he was not khatedar of the land in question at that point of time and therefore, the suit ought to have been decreed in favour of the plaintiff on that sole ground.

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Heard learned counsel for the parties and perused the material available on record.

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A bare perusal of the impugned judgment makes it clear that both the issues regarding the limitation as well as the incompetency of husband of the plaintiff to execute the sale-deed have been discussed in detail by the Court and specific findings on the said issues have been recorded. Even the judgments on the issues have been considered and the ratio laid down therein has been applied in the present matter by the Court. Dealing with the issue on limitation, the Court specifically observed as under:

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“In the examination in chief, DW-1 Bheem Singh, the respondent clearly stated that at the time of execution of sale deed Ex.1, late Shri Padam Singh received consideration of said land and then after late Shri Padam Singh gave that amount to his wife plaintiff Badan Kanwar, but not a single question has been asked to DW-1 respondent about his above averment, so in the cross-examination, this fact stands unrubtted, so it is also proved that at the time of execution of sale deed Ex.1, the plaintiff was also present and she received the consideration amount of sale vide sale deed Ex.1, so contention of appellantplaintiff that the said sale deed Ex.1 was not in her knowledge and first time in September, 2005 when she came to her village, then she knew

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about the said sale, is not tenable. In these circumstances, the learned trial court rightly held that the suit is time barred and issue No.4 has rightly been decided in favour of defendant and against the plaintiff.”

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Dealing with the issue whether Padam Singh had any right to

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execute the sale deed, the Court observed as under:

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“The main contention of the plaintiff is that late Padam Singh had no right to execute the said sale deed about the said land because he had not obtained khatedari rights and at the time of execution of sale deed, Ex.1, late Padam Singh was Gair Khatedar, so sale deed is void, but the plaintiff had failed to prove in the trial court that due to said sale, how her rights were infringed.

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It is admitted fact in this case that said land was self acquired property of late Shri Padam Singh and according to document Ex.3 Jamabandi which was produced by the appellant-plaintiff herself during the trial in the trial court, after execution of sale deed Ex.1 late Shri Padam Singh obtained khatedari right over the suit land in his life time. Before getting khatedari right, neither late Sri Padam Singh raised this objection regarding that he is gair khatedar nor the plaintiff or her son raised objection that due to gair khatedari, the sale deed Ex.1 is void. Then after death of Shri Padam Singh and after expiry of period of 22 years of execution of sale deed Ex.1, the plaintiff has no right to raise any objection.”

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It has been the specific finding of the Court that no substantial question of law arose in the appeal and after a thorough discussion on the findings as reached by both the Courts below, the conclusion has been drawn by the Court. In the opinion of this Court and in terms of the settled provisions of law, the above issues cannot even otherwise be the grounds for maintaining a review petition.

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Division Bench of this Court, in the case of Sawai Singh Rathore vs. Baroda Rajasthan Gramin Bank; D.B. Writ Review No.20/2016 decided on 25.07.2017, while relying upon the relevant Hon’ble Apex Court judgment, held as under:

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“ Hon’ble Supreme Court in Thungabhadra Industries Ltd. vs. Govt. of A.P. : AIR 1964 SC 1372 laid down that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.

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Again in Parsion Devi vs. Sumitri Devi : (1997) 8 SCC 715, it was laid down as under:-

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“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 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”. A review petition, it must be remembered has a limited purpose and cannot be allowed to be “an appeal in disguise”.”

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The above judgments clearly spell out the nature, scope and ambit of power of review to be exercised. The error has to be self evident and is not to be found out by a process of reasoning, as has been attempted by counsel for the petitioner.”

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So far as the application under Order 41 Rule 27, CPC having been rejected cursorily by the Court is concerned, it is relevant to note that the reason for rejection of the application has specifically been assigned by the Court that the same is rejected for the reasons on which the second appeal has been rejected. Moresover, the documents as annexed along with the application

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under Order 41 Rule 27, CPC are the documents pertaining to the year 2007, meaning thereby, they were in existence even before the decision of the suit on 26.02.2008 which makes it clear that the said documents were very well within the knowledge of the plaintiff and admittedly, were not placed before the Courts below. Therefore also, the same could not have been taken on record and the application under Order 41 Rule 27, CPC has rightly been rejected.

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In view of the above observations, this Court does not find any ground to review the order dated 28.08.2017 and the present review petition is therefore, dismissed.

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(REKHA BORANA),J

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28-T.Singh/-

Badan Kanwar v. Bheem Singh

Case brief

What is this about?

What did the court decide?

Badan Kanwar v. Bheem Singh

Case brief

What is this about?

What did the court decide?

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