TMI Blog1994 (11) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... ndra Nath Choudhury were close friends, that by two registered documents they had purchased the aforesaid two plots and that the plaintiff-appellant became entitled to the northern halves of the two plots totalling IO decimal. Her case is that the parties dug a well in the middle portion of the respective plots. It was further contended that the defendant-respondent in disregard of the plaintiff-appellant's interests, started construction of some buildings, encroaching upon her area. Consequently, the aforesaid suit was filed claiming partition of two plots by metes and bounds. The plaintiff-appellant alternatively prayed for declaration of title and sought permanent injunction in respect of C.S. Plot Nos. 73 and 74. 3. The learned trial Judge by his judgment and decree dated 15-3-1971 held that the plaintiff-appellant was entitled to partition of C.S. Plot No. 73 and so far as C.S. Plot No. 74 was concerned the appellant was held entitled to a decree of declaration of title in respect of specific 5 decimals of land and permanent injunction against the defendant to that extent. 4. Being aggrieved by the judgment and decree of the trial court, the respondent-defendant pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had passed an order wherein it reappreciated the evidence, both oral and documentary, while holding that the plaintiff's case for a partition and separate possession of C.S. Plot No. 74 was not maintainable, that this approach of the Review Bench was beyond the scope and outside the jurisdiction conferred on the court under Order 47, Rule 1, and that in fact there was no apparent error which could justify the impugned review judgment and the consequential order of 8-7-1986. On the other hand, learned counsel for the respondent submitted that as the earlier Division Bench had not properly considered all the relevant aspects and had left many loose threads to be tied, the latter Division Bench was perfectly justified in taking the view that the earlier decision of the High Court suffered from a patent error of law entitling the Review Bench to interfere with the findings and the order of the earlier Division Bench. 7. Having given our anxious consideration to these rival contentions, we find that this appeal is required to be allowed. 8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has made the following observations in connection with an error apparent on the face of the record: An error which has to be established by a long-drawn process of reasoning on points where there may 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. 10. In the light of this settled legal position let us try to see whether in the present case the latter Division Bench while dealing with the review petition had overstepped the limits of jurisdiction under Order 47, Rule 1 and whether it had resorted to re-appreciation of evidence by almost sitting in appeal over the decision reached by the earlier Division Bench. 11. We have to keep in view the fact that the controversy in the present proceedings centres only around partibility of C.S. Plot No. 74. So far as C.S. Plot No. 73 is concerned, the decree for partition and separate possession as passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendant in favour of the plaintiff no statement was found or indicated that any structure was sold to the plaintiff as stated by defendant's witness 1 or as mentioned in the written statement. Nothing was shown that any demarcated portion of C.S. Plot No. 74 was sold to the plaintiff. Rather from a reading of the Kobala it was quite clear that half share of Plot No. 74 was sold by the defendant to the plaintiff. The story of sale of structure along with the land of C.S. Plot No. 74 could not be accepted. It was further held that from evidence there was no doubt to hold that there is vacant land on Plot No. 74 which is common to both and there is no sign of demarcation. The defendant's husband admitted about the joint possession of at least some portion of C.S. Plot Nos. 73 and 74. Theory of showing marks of demarcation cannot be accepted. It was next held that the evidence showed that at the time of purchase not only the parties but their husbands were best of friends. The nature of the building set up by the parties with a partition wall in between also supports this finding. There was no reliable evidence that the parties purchased any demarcated portions of land. Rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchased a demarcated portion of the Plot No. 74 and not undivided half portion of the said plot. Mr Moitra, learned Advocate for the applicant, has taken us to both the Kobalas (Exts. 4/a and G-1). The said deed in plaintiff's favour inter alia recited: `Sale deed for a house containing three rooms, with brick walls, doors and windows, one kitchen and a Privy.' The vendor Nirmala in the said Kobala also recited: ` ...with the said plot on the southern side in my share .05 decimal, excluding that, in the remaining share .05 decimal, homestead land with three brick walled tin shed rooms, a kitchen and a Privy in the north.' The schedule of the said Kobala dated 23-4-1947 in plaintiffs' favour set out the same description of the property conveyed out of Plot No. 74 by the defendant in plaintiffs' favour. Therefore the Division Bench, with respect, was not right in holding: 'We do not (sic) anything so that we may get that any demarcated portion of Plot No. 74 was sold to the plaintiff'. Rather from a reading of the Kobala it was clear that half share of Plot No. 74 was sold by the defendant to the plaintiff. We have already set out extracts from the K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three plots, namely, Nos. 1507, 1508 and 1509. The aggregate area of the said three plots was 1348 while the area of C.S. Plot No. 74 was 10 decimals. The plaintiff occupied R.S. Plot No. 1508 measuring 0.508 acres. She and the defendant were recorded as jointly occupying the drain and passage in Plot No. 1507 measuring .0070 acre. The plaintiff cannot have any grievance merely because the R.S. records showed that the defendant was possessing .0770 acres of R.S. Plot No. 1509. The defendant had previously acquired the entire C.S. Plot No. 74 and out of the said plot then sold demarcated .05 decimals to the plaintiff. In fact, there was also increase in the land of plaintiff's occupation. 14.On internal page 19 in the review judgment, it was further observed that even the learned advocates of both sides and the Division Bench failed to consider the case of the plaintiff regarding Plot No. 74 and this was because of the misconception about Commission's report and other evidence regarding C.S. Plot No. 74 and regarding the stall area. 15.In our view the aforesaid approach of the Division Bench dealing with the review proceedings clearly shows that it has overstepped its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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