JUDGMENT
1. By this order I propose to decide an application filed on behalf of the appellant under Order 47, Rule 1 of the Code of Civil Procedure seeking review of the judgment dated 26th August, 1991 passed by me in R.S. A. 176/1977. The facts giving rise to the appeal were that house No. 4-A/57, Old Rajinder Nagar, New Delhi was allotted to Nihal Chand in 1949. Nihal Chand sold the house to Sharwan Kumar by sale deed dated 11th January, 1968. Respondent, Sharwan Kumar filed a suit for mandatory injunction against Hori Lal, the predecessor-in-interest of the appellant on the allegations that after the purchase of the house from his father Nihal Chand, he allowed his brother Hori Lal to remain in a room and portion of Verandah in front as a licensee. His license having been revoked by notice dated 14th October, 1969, he was called upon to clear off the portion of the house but he failed to do so. Hori Lal contested the suit and pleaded that the property was purchased by Joint Hindu Family consisting of his father Nihal Chand, himself and his brother Sharwan Kumar. He pleaded co-ownership in the house. The suit was decreed by the trial Court. The first appeal by Hori Lal was dismissed. Both the courts below had found as a fact that the parties did not constitute a Joint Hindu Family and Nihal Chand was the absolute owner of the property in dispute. Both the courts below also held that Hori Lal was a licensee in a portion of the house. It was also held by both the courts that the suit for mandatory injunction was maintainable. In
the Regular Second Appeal the only substantial question of law formulated was whether with the transfer of the property the license granted was revoked and thereafter the status of Hori Lal was that of a trespasser.
2. The only point that was canvassed before me on behalf of the appellant was that the suit for mandatory injunction was not maintainable. I affirmed that the suit for mandatory injunction was maintainable and dismissed the appeal.
3. Now this application has been filed on behalf of the appellant under Order 47, Rule 1, CPC seeking review of the judgment. It is alleged that vide letter No. CAF-D/4477/ 1MA, dated 22nd November, 1991 and letter bearing No. CAF-D/447/IMA/1991-883, dated 22nd January, 1992 issued by the Asstt. Settlement Officer, the appellant was supplied certified copies of the Appendices D and J. From the contents of the said Appendices it is prima facie evident beyond any reasonable doubt that the disputed property, in fact, was allotted in the name of Pt. Nihal Chand and his sons namely Chaman Lal, Hori Lal, Girdhari Lal and Sharwan Kumar. Till 31st January, 1955 the name of appellant Hori Lal was existing in the ration card of his father Pt. Nihal Chand. In view of this the appellant could not be held as a licensee being a co-owner/co-sharer. It is also clear from the contents of the above Appendices that till 31st January, 1955 the appellant’s name existed in the ration card of his father along with other members of the family. The facts mentioned in the said Appendices were not within the knowledge of the appellant before 22nd November, 1991 in spite of his exercise of due diligence and, thus, neither the said documents could have been produced nor the grounds based on those documents could have been pleaded by the appellant either before this court or before the courts below as the same could not be used properly without receiving the certified copies of the Appendices. In these premises a prayer is made that the judgment dated 26th August, 1991 be reviewed declaring that the appellant is co-owner/ co-sharer in the disputed property or in the alternative the case may be remanded for
fresh trial.
4. Respondent has contested this application. The first objection raised on behalf of the respondent is that the application is barred by time, having been filed after a period of 7 months. No review application is competent on question of fact when the Regular Second Appeal has been entertained and admitted only on a substantial question of law. The question of fact as determined and adjudicated being binding, cannot be subject-matter of review. Even otherwise no case is made out for review under Order 47, Rule 1, CPC.
5. I have heard the learned counsel for the parties. In my opinion the objection raised on behalf of the respondent that no review is competent on the question of fact is well founded. It was contended on behalf of the applicant that the review was maintainable on the ground of discovery of new and important evidence as to a question of fact. In support of his contention the learned counsel for the appellant has relied upon a judgment of the Supreme Court in the case of Moran Mar Basselios v. The Most Rev. Mar Poulose, reported as . I have gone through this judgment very carefully. The controversy which is the subject-matter of this application was not raised, discussed or decided in this judgment. The facts of that case were quite different and are not at all applicable to the controversy involved in this case. The Supreme Court enunciated certain principles on which review could be sought. In my opinion the appellant cannot derive any assistance from this authority. In support of his contention Mr. Nigam has relied :upon a number of judgments. The first is reported as Mariam-un-Nissa Bibi v. Babu Ram AIR 1923 All 541, wherein it was ruled as under (at page 542) :–
“The High Court cannot in a second appeal entertain an application for a review of judgment based on the ground that since the disposal of the appeal documentary evidence has been discovered, which, if sufficiently proved, would have led the court below to come to a different finding, although had such
evidence been discovered before the disposal of the appeal the court might have allowed the appellant to withdraw the appeal with a view to apply to the lower appellate court for a review of judgment on the ground of the discovery of fresh evidence. (32 All 71, Foll). The question whether any particular record has been rightly or wrongly framed is certainty a question of fact and not a question of law.”
6, The next judgment on which reliance is placed is the case of Saila Bala v. Gadadhar Hasra; reported as AIR 1922 Cal 165, wherein it was held as under:
“In the case of Rajni Kant a Das v. Kali Prosutmaa Mukherjee (1) it was decided that the High Court has no authority merely on the ground of alleged discovery of new important evidence to review an order dismissing an application for the admission of a second appeal under Order41, Rule 11 of the Code of Civil Procedure a decision, which is directly in point on the question now before us. It is true that that was a decision of a single Judge of this Court, Mr. Justice Coxe; but the learned Judge based his decision on a case, Bhyrab Nath Toee v. Rally Chander Chowdhuri (2) heard by Mr. Justice Loch and Mr. Justice Bayley, and they decided as follows (at page 165):–
“Under any circumstances it appears to us that this Court cannot admit a review of a judgment passed in special appeal merely on the ground that new evidence to prove a fact has been discovered, and under this view of the law we think this application should be rejected with costs.”
A further case, to which my learned brother drew my attention during the course of arguments, Panchanan Mukherjee v. Radha Nath Mookherjee (3) is to the same effect:– That was a case decided by Mr. Justice Loch and Mr. Justice Mitter in the year 1870; and having regard to the settled state of law on this point since 1870 in my judgment it is not possible for us to do otherwise than to discharge this rule with costs; hearing fee one gold mohur.”
Similarly another judgment on which reliance
is placed is the case of Hari Garni Bhandirge v. Hari Ganu Shinde AIR 1929 Bombay 225, in which the following view was taken :
“Discovery of new and important evidence on a question of fact though a good ground for review of the decree of the first appellate court is no ground for review of the decree of the second appellate court; the finding of fact of the lower court being final and binding on second appellate court.”
7. I have given my thoughtful consideration to the entire matter. In my opinion the contention raised on behalf of the respondent is well founded and has a force of law. I agree with the views expressed in the judgments relied upon on behalf of the respondent. I am of the opinion that discovery of new evidence on a question of fact, though is a good ground for the review of the decree of the first appellate court, is no ground for review of the decree of the second appellate court. By this application, the applicant is seeking review of the judgment passed by this Court as a Second Appellate Court on the ground of discovery of new and important evidence as to question of fact. In my view the application is not maintainable in this Court. The application has no merit and is dismissed. However, the parties will bear their own costs.
8. Application dismissed.