The Division Bench then numbered that Khatian No.
74 and that is how the review petition was allowed.
4A, being Kobala dated 14th of April, 1947 executed by respondent defendant in favour of the appellant in respect of .05 decimals of land out of Plot No.
In fact, there was also increase in the land of plaintiffs occupation.
The Division Bench also overlooked the clear finding, by the trial Court that according to the evidence including the Commissioner report the well had been excavated number in the portion, in plaintiffs occupation but in the defendants portion of Plot No.
So far as Plot No.
So far as C.S. Plot No.
G, being Kobala executed by Jiten Banerjee in favour of defendant on 11th September, 1940.
74 is companycerned as well as the review judgment dated 5th September, 1984.
It set aside the decree for partition as granted by the earlier Division Bench in Second Appeal and directed that the Second Appeal be re heard so far as the question of partition of C.S. Plot No.
Then the Division Bench companysidered the documents of title.
Thereafter, the Division Bench companysidered the oral evidence and came to the companyclusion that the structures were companystructed jointly by the parties and a companymon wall was raised for the companyvenience of use, the whole wall being used in companymon.
74 also.
Then the Division Bench companysidered Exh.
So far as C.S. Plot No.
1508 was recorded inoccupation of the plaintiff.
74 and out of the said plot then sold demarcated .05 decimals to the plaintiff.
G1 dated 17th September, 1940.
The Division Bench also numbered the fact that the total area of C.S. Plot No.
The Review Petition was heard on 5th September, 1984 by another Division Bench of the High Court, and was partly allowed so far as the C.S. Plot No.
74 was companycerned, the latter Division Bench came to the following companyclusions In our view the Division Bench, however, companymitted errors apparent on the face of the record in companysidering the oral and documentary evidence regarding title and possession of the two parties in respect of R.S. Plot No.
74 was companycerned, the appellate Court companyfirmed the learned Subordinate Judges judgment.
569 of 1973 was ordered to be dismissed in respect of C.S. Plot No.
74, in substance, the latter Division Bench had sat in appeal over the decision of the earlier Division Bench and had passed an order wherein it re appreciated the evidence, both oral and documentary, while holding that the plaintiffs case for a partition and separate possession of C.S. Plot No.
0770 acres.
74 is companycerned, the High Court in Second Appeal, vide judgment dated 3rd August, 1978, clearly observed that the appellate Court has passed a very laconic order, had number companysidered the cross objections and had disposed of the first appeal and, therefore, the High Court exercised powers under Section 103 of C.P.C. While doing so the Division Bench of the High Court companysidered the documents of title for both the plots, namely, C.S. Plot Nos.
1509 measuring .0770 acres while the Plot No.
The aggregate area of the said three plots was 1348 while the area of C.S. Plot No.
1507 measuring .070 acres, Plot No.
A few relevant facts leading up to this appeal are required to be numbericed at the outset.
The Review Petition was, however, dismissed so far as the partition decree for C.S. Plot No.
The defendants husband admitted about the joint possession of at least some portion of C.S. Plot Nos.
4/a dated 16th April, 1947, purchased demarcated 5 decimals of land and structures thereon out of Plot No.
The two companyrts of fact accepted the defendants case that she alone had purchased from its original owner, Jitendra Nath Banerjee, the entire Plot No.
74 was companycerned 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.
The learned Counsel appearing for the appellant vehemently submitted that though the Review Bench had hed that there was an apparent error companymitted by the earlier Division Bench in allowing the Second Appeal in companynection with C.S. Plot No.
74 was sold to the plaintiff.
On internal page 19 in the review judgment, it was further observed that been the learned advocates of both sides and the Division Bench failed to companysider the case of the plaintiff regarding Plot No.
The plaintiff appellant alternatively prayed for declaration of title and sought permanent injunction in respect of C.S. Plots Nos.
1507 measuring .0070 acre.
74 was 10 decimals.
73 and 74.
The nature of the building set up by the parties with a partition wall in between also supports this finding.
1508 measuring 0508 acres.
r a dated 16th April, 1947 the plaintiff had purchased a demarcated portion of the Plot No.
In substance, the review Bench has re appreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench.
Being aggrieved by the judgment and decree of the trial companyrt, the respondent defendant preferred Title Appeal No.
74 was companycerned, on internal page 8 of the earlier judgment, it was held that in place of C.S. Plot No.
74 and almost sat in appeal against the findings and judgment recorded by the earlier Division Bench.
She and the defendant were recorded as jointly occupying the drain and passage in Plot No.
73 and 74.
74, three plots had emerged instead during R.S. operations.
74 was sought to be reviewed by the latter Division Bench as numbered earlier.
1 or as mentioned in the written statement.
In the last paragraph of internal page 8 and at page 9, the entire documentary evidence was re considered and so far as C.S. Plot No.
4/a and G1 .
74 were found to be erroneous, it would be numberground for reviewing the same, as that would be the function of an appellate companyrt.
73 as passed by the trial Court and as affirmed by the High Court, went.
In the impugned review judgment which is the basis of the ultimate companysequential decision in Second Appeal after review, curiously enough the Division Bench having numbered the limited nature of its jurisdiction under Order 47, Rule 1, reconsidered the entire evidence pertaining to C.S. Plot No.
1507, 1508 and 1509.
1507, 1508 and 1509, the area being .0070, .508 and .0770 respectively.
74 as passed pursuant to the earlier review order, that has been brought in challenge before this Court by special leave as numbered earlier.
Thereafter, on 16th April, 1947, the defendant out of her said plot No.
569 of 1973.
74 had been split up into three R.S. Plots, namely, R.S. Plot No.
We have already set out extracts from the kobala Ext.
The respondent defendant being aggrieved by the said judgment dated 3rd August, 1978, filed a Review Petition under Order 47, Rule 1 of the CPC, challenging the findings of the Division Bench of the High Court.
569 of 1973 insofar as C.S. Plot No.
Her case is that the parties dug a well in the middle portion of the respective plots.
The learned Additional District Judge by his order dated 29th June, 1972, directed that the appellant would get a declaration of title, companyfirmation of possession and injunction, but so far as the appellants prayer for partition of C.S. Plot No.
293 related to R.S. Plot Nos.
74 was sold by the defendant to the plaintiff.
73 and 74.
On the other hand, learned Counsel for the respondent submitted that as the earlier Division Bench had number properly companysidered 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.
So far as the disputed Plot No.
It was ultimately held that the parties purchased the properties without partition and that there was numberpartition by metes and bounds.
Her case was that her husband Dr. Umaprasanna Bhanja and respondent defendants husband Dr. Phanindra 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 numberthern halves of the two plots totalling.
74, sold 5 decimals of land in the numberthern side to the plaintiff.
73 and 74 and the same was sold by their venires treating the same as such and, therefore, the question of accretions subsequently to the C.S. Plots did number arise.
This appeal by special leave under Article 136 of the Constitution involves a short question about the review jurisdiction of the High Court in setting aside the earlier decision of the High Court in Second Appeal No.
74 to the plaintiff and the Division Bench had companymitted an error apparent on the face of the record by declining to accept the defence story of sale of structures along with the demarcated land out of C.S. Plot No.
74 by the defendant in plaintiffs favour.
The schedule of the said kobala dated 23rd April, 1947 in plaintiffs favour set out the same description of the property companyveyed out of plot No.
It was further held that from evidence there was numberdoubt to hold that there is vacant land on Plot No.
Even if the earlier Division Bench findings regarding C.S. Plot No.
The plaintiff Occupied R.S. Plot No.
The final decision dated 8th July, 1986 of the Division Bench dismissing the appeal from appellate decree No.
274 of Mouza Panchberia prepared during the recent revisional settlement had been marked Exh.
It was next held that the evidence showed that at the time of purchase number only the parties but their husbands were best of friends.
Theory of showing marks of demarcation cannot be accepted.
74 by the Kobala dated 17th September, 1940 had number been established, that the plaintiff had by his Kobala Exh.
Therefore the Division Bench, with respect, was number right in holding We do number sic anything so that we may get that any demarcated portion of plot No.
74 which during R.S. Operations were subdivided into three plots, namely, Nos.
74 and number undivided half portion of the said Plot.
Accordingly, the plaintiff was found entitled to a decree for partition even for C.S. Plot No.
We have already mentioned that the plaintiff had purchased from the defendant a demarcated numberthern portion including structures and land measuring 5 decimals out of Plot No.
In that suit, the appellant plaintiff claimed partition and separate possession of two plots, namely, C.S. Plot Nos.
74 and regarding the stall area.
Rather from a reading of the kobala it was quite clear that half share of Plot No.
74 was .10 decimals.
74 was sold to the plaintiff.
The said deed in plaintiffs favour inter alia recited Sale deed for a House companytaining three rooms, which brick walls, doors and windows, one kitchen and a Privy.
74 and this was because of the misconception about Commissions report and other evidence regarding C.S. Plot No.
74 which is companymon to both and there is numbersign of demarcation.
The story of sale of structure along with the land of C.S. Plot No.
4/a in plaintiffs favour which clearly shows that the defendant sold certain structures along the land in the numberthern portion of plot No.
569 of 1973.
74 was being sold to the plaintiff by the defendant.
Those two Khatians were in the name of both the plaintiff and the defendant as already mentioned.
73 and so far as C.S. Plot No.
The learned trial Judge by his judgment and decree dated 15th March, 1971, held that the plaintiff appellant was entitled to partition of C.S. Plot No.
The appellant is the original plaintiff who had filed a title suit No.
Thereafter, by a later order dated 8th July, 1986, Second Appeal No.
This decision of the Division Bench dated 3rd August, 1978 allowing the Second Appeal of the appellant for C.S. Plot No.
It was further companytended that the defendant respondent in disregard of the plaintiff appellants interests, started companystruction of some buildings, encroaching upon her area.
26 of the aforesaid Mouza.
The Division Bench of the High Court by its judgment and order dated 3rd August, 1978, allowed the Second Appeal and held that the plaintiff appellant was entitled to partition of C.S. Plot No.
It was stated in the Kobala that half of Plot No.
1510 and 1511.
This Court did number reverse the findings made by the companyrts of fact that the plaintiff had failed to prove that she had jointly purchased this plot with the defendant by the Kobala Exh.
10 decimals.
Accordingly, this appeal is being finally disposed of by this judgment.
The Division Bench had clearly companymitted an error of law apparent on the face of the record by overlooking that by her Kobala Exh.
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.
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 numberth.
They were Plot Nos.
R.S. Khatian showed the joint proprietorship of both the parties in R.S. plots and there had been numberseparate Khatian in respect of separate ownership of the plaintiff or the defendant.
74 companyld number be accepted.
The defendant had previously acquired the entire C.S. Plot No.
74, Khatian No.
1508 measuring 0508 acres and R.S. Plot No 1509 measuring.
During revisional Survey Settlement Operations the C.S.Plot No.
Consequently, he aforesaid suit was filed claiming partition of two plots by metes and bounds.
74 was number maintainable, that this, approach of the Review Bench was beyond the scope and outside the jurisdiction companyferred on the Court under Order 47, Rule 1, and that in fact there was number, apparent error which companyld justify the impugned review judgment and the companysequential order of 8th July, 1986.
73 and 74.
67 of 1970 in the second Court of the learned Subordinate Judge at Midnapore in West Bengal.
Rather from a reading of the kobala it was clear that half share of plot No.
It is this decision of the latter Division Bench of the High Court dismissing Second Appeal of the appellant qua C.S. Plot No.
322 of 1971, while the appellant filed cross objections against dismissal of her suit for partition of C.S. Plot No.
B. Majmudar, J. Special leave granted.
In R.S. Khatian the defendant was recorded as in exclusive occupation of R.S. Plot No.
We have heard learned Counsel for the companytesting parties finally in this appeal.
The appellant being aggrieved by the order of the learned Additional District Judge preferred a Second Appeal to the High Court of Calcutta, being Appeal from Appellate Decree No.
74 was companycerned.
74 was companycerned.
Nothing was shown that any demarcated portion of C.S. Plot No.
73 is companycerned, the decree for partition and separate possession as passed in favour of the appellant has become final as observed by the Review Bench itself, while dismissing the Review Petition for that plot.
The Division Bench companysidered the defendants version and rejected the same by holding that from the Khatian executed by the defendant in favour of the plaintiff numberstatement was found or indicated that any structure was sold to the plaintiff as stated by defendants witness No.
On the basis of the aforesaid finding reached by the latter Division Bench on re appreciation of oral and documentary evidence, the companyclusion is reached in the impugned review judgment that the plaintiffs case of jointly purchasing with the defendant Plot No.
74 and accordingly it was held that the Division Bench earlier had companymitted an apparent error on the face of the record in passing a preliminary decree for partition in respect of Plot No.
in companynection with the very same plot, i.e. C.S. Plot No.74 was companycerned, the Division Bench companysidered Exh.
74 was sold by the defendant to the plaintiff.
The plot area was described as .10 decimal.
The latter Division Bench also found fault with the reasoning adopted by the earlier Division Bench in this companynection and made the following observations which are at internal page 16 of the judgment In our view, while deciding the Second Appeal the Division Bench had failed to companysider the real nature of companytest between the two parties in respect of the C.S. Plot No.
3 and Khatian No.
