BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/03/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Review Application (MD)No.25 of 2008 and M.P.(MD)Nos.1 and 2 of 2008 in S.A.No.1114 of 2000 1.Chinthamani alias Karuppa Thevar 2.Muthukaluvan .. Applicants/Appellants Vs V.Raju .. Respondent/Respondent Prayer Review filed under Section 114 and Order 47 Rule 1 and 2 of Civil Procedure Code, against the judgment and decree of this Court dated 29.01.2008 in S.A.No.1114 of 2000 in confirming the judgment and decree of the Sub Judge, Periyakulam, dated 22.09.1998 in A.S.No.86 of 1995 in confirming the judgment and decree of District Munsif, Uthamapalayam, dated 28.08.1995 in O.S.No.531 of 1990. !For Appellant ... Mr.D.Malaichamy ^ :JUDGMENT
This Review Application is focussed as against the judgment and decree of
this Court dated 29.01.2008 in S.A.No.1114 of 2000 in confirming the judgment
and decree of the Sub Judge, Periyakulam, dated 22.09.1998 in A.S.No.86 of 1995
in confirming the judgment and decree of District Munsif, Uthamapalayam, dated
28.08.1995 in O.S.No.531 of 1990.
2. Heard the learned Counsel for the Review Petitioners.
3. In view of the order which is going to be passed, I am of the
considered opinion that no notice to the other side is required.
4. A re’sume’ of facts absolutely necessary and germane for the disposal
of this Review Applicatin would run thus:
(i) Earlier this Court vide judgment dated 29.01.2008 in S.A.No.1114 of
2000 passed order dismissing the second appeal confirming the judgments and
decrees of both the Courts below.
(ii) The respondent Raju Thevar filed the suit for partition and it was
decided as against the review petitioners herein, who happened to be the
appellants in the second appeal. The trial Court decreed the suit as against
which appeal in A.S.NO.86 of 1995 was filed before the Sub Court, Periyakulam,
which Court dismissed the appeal confirming the judgment and decree of the trial
Court in ordering partition and passing preliminary decree.
(iii) As against the judgment and decree of both the Courts below, this
review application has been filed on the main ground that after the disposal of
the second appeal, the review petitioners recollected that they had already
obtained two documents namely, Adangal Extracts for the suit property
S.No.937/3A relating to 1961 (fasli 1370) and Adangal Extract for S.No.937/4B
relating to 1961 (fasli 1370) and those documents would support their case.
Accordingly, they pray for reviewing the earlier order passed by this Court in
the second appeal on the ground that had these two documents filed before this
Court earlier, then this Court would have held that Ex.B.2, the Town Survey
record was supported by the aforesaid two adangal extracts, in the name of the
defendants only.
5. Perused the records including the previous judgment of this Court. In
paragraph Nos.12 to 19, I have dealt with the relevant grounds set out in the
second appeal and also the substantial questions of law framed by this Court.
This is a case where both sides could not produce any title deed and it is the
admitted case of both sides that originally one Karuppa Thevar, the paternal
grandfather of the parties to the proceedings had enjoyed the suit property with
his two sons and after the death of the said Karuppa Thevar and his two sons,
their descendants who are the parties to these proceedings have been enjoying
the suit properties.
6. While so, the dispute arose among them. The plaintiff in all fairness
would seek only for partition recognising the defendants’ share also. Whereas
the defendants would contend that they only have the exclusive right over the
entire suit property. Both the Courts below considering the documentary and
oral evidence gave a reasoned finding that the suit property should be
partitioned. In fact, the defendants would contend that they only started
exclusively enjoying the suit property after the death of Karuppa Thevar and his
sons.
7. On the plaintiff’s side, Exs.A.1 to A.3 were relied on and this Court
after perusing Exs.A.1 to A.3, the ante litum motum documents which emerged at a
time when there was no dispute between the parties, held that since in Exs.A.1
to A.3, all the names of the parties are found and that Ex.B.2, Town Survey
Register emerged in the year 1987 shortly before the filing of the suit, the
question of giving importance to Ex.B.2 would arise.
8. The learned Counsel for the review petitioners would stress upon the
fact that Ex.B.2 is buttressed and fortified by two new documents namely adangal
extracts which he filed along with the typed set of review petition stating that
even in the fasli year 1370 the Adangal Extract stood only in the name of the
two defendants relating to the suit property.
9. The said two documents proposed to be brought on record as evidence
were obtained in the year 1999 itself, so to say, after the dismissal of the
first appeal and before the filing of the second appeal. Even in the second
appeal, it was not sought to be filed, even though they were very much alleged
to be in the hands of the review petitioners. However, those two documents are
nothing but Adangal extracts. Relating to the revenue records, already this
Court held that based on such documents alone finally, title to the suit
property cannot be decided and that the oral and documentary evidence should be
considered together. To that effect, in paragraph No.13 of my judgment, already
set the reasons. Furthermore, the authenticity of the proposed two documents
should be tested as to whether they were issued based on revenue records which
in reality emerged during the fasli year 1370 or not. In fact, in the review
proceedings over second appeal, such exercise could not be undertaken by
treating this Court as trial Court.
10. In fact, the endorsements in the two documents would show that they
were issued in the year 1999 so to say, before the filing the second appeal, but
after the disposal of the first appeal.
11. Hence, in such a case, absolutely there is no rhyme or reason on the
part of the review petitioners in praying this Court to review the judgment of
this Court based on such documents.
12. At this juncture, I would like to refer to Order 47 Rule 1 and Section
114 of the Code of the Civil Procedure. Time and again, the Courts have held
that the review cannot be sought merely because certain documents which require
further proof as to its genuineness and authenticity.
13. Here, the documents which are sought to be filed are not registered
documents, but only two Adangal Extracts and that in no way would enure to the
benefit of the defendants for reasons set out supra. To the risk of repetition
without being tautologous, I would highlight that when admittedly both the
ancestors of both parties were enjoying the properties, the descendants of those
persons, can only seek for partition and not exclusive right to the exclusion of
the other group. There is no error apparant also in the judgment of this Court
and accordingly, I am of the considered opinion that absolutely there is no
prima facie case even to order notice.
14. In the result, this review petition is dismissed. Consequently, the
connected Miscellaneous Petitions are dismissed. No costs.
rsb
To
1.The Sub Judge, Periyakulam.
2.The District Munsif, Uthamapalayam.