Shri Nrusinghnath Dev, Bije Biruda Through Its Managing Trustee, Jayakrishna Satpathy Vs. Syamsundar Mohanty and ors. - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - 2 that the aforesaid conclusion of this court is erroneous on the face of the record as it escaped from the notice of the counsel appearing for both parties as well as that of the court that on filing of the suit for partition there was severance of joint tenancy and, therefore, the theory of survivorship would not be available to be applied. 3. it is well known in law that joint tenancy from one body owing the properties jointly, they have unity of possession, unity of interest, unity of title and unity of time of commencement of such tenancy. covers both cases of review on grounds of mistake or error of fact as well as of law provided it is apparent on the face of the record.p.c. misra, j.1. this is an application under order 47, rule 1, c. p. c. praying for review of the judgment passed by this court in second appeal no. 122 of 1979. the second appeal was disposed of relying on the principle that on the death of one of the joint tenants, his interest would devolve upon the surviving tenant on the principle of survivorship. the petitioner in this application has prayed for review of the judgment on the ground that the said principle was wrongly applied in disposing of the second appeal inasmuch as, according to him, there was no joint tenancy after the institution of the suit.2. the short facts necessary for disposal of the review appli- cation may be stated as follows: the petitioner in the review application along with plaintiff no. 2 instituted o. s. n. 56/62-i in the court of munsif, nayagarh, it was alleged in the plaint that plaintiff no. 2 a hindu deity is the owner of the suit land, plaintiff no. 1 was a bhag chasi in respect of the suit land along with the defendant. plaintiff no. 2 had previously filed t. s. no. 56/62-1 in the court of munsif, nayagarh against plaintiff no. 1 and defendant for their eviction from the suit land. the suit was decreed against which plaintiff no. 1. and the defendant had preferred an appeal (title appeal no. 3/67) in which the judgment of the trial court was set aside and plaintiff no. 1 and the defendant were declared as bhag chasis in respect of the suit land. in this suit the plaintiffs alleged that during the pendency of the aforesaid title appeal, plaintiff no. 1 had entered into an agreement with plaintiff no. 2 and relinquished his interest over half of the suit land an application to the same effect was filed in the said title appeal and a compromise was recorded on that basis on 18-3-1972. no relief could, however, be granted on the basis of that compromise. plaintiff no. 1, therefore, prays for partition of the suit land by metes and bound between him and the defendant. the defendant contested the suit denying all plaint allegations. the learned trial court held that the defendant's case that plaintiff no. 1 had relinquished all his interest in favour of the defendant has not been established. it was further held that relinquishment of the interest by plaintiff no. 1 in favour of plaintiff no. 2 was ineffective and, therefore, plaintiff no. 1 and the defendant continued to be joint tenants. the said findings were confirmed in the appeal against the judgment of the trial court. during pendency of the second appeal, respondent no. 1, who was plaintiff no. 1 in the trial court died and his name was expunged from the records. the only point that was urged by the learned counsel for the appellant is that the properties being under joint tenancy, the interest of plaintiff no. 1 would devolve upon his co-sharer by the theory of survivorship. it was, therefore, contended that the appellant is the sole lessee in respect of the suit properties and the prayer for partition which was allowed by the learned courts below is bound to be set aside. this court in the second appeal accepted the said contention and disposed of the appeal accordingly. in this review application it has been urged by the learned counsel for respondent no. 2 that the aforesaid conclusion of this court is erroneous on the face of the record as it escaped from the notice of the counsel appearing for both parties as well as that of the court that on filing of the suit for partition there was severance of joint tenancy and, therefore, the theory of survivorship would not be available to be applied.3. it is well known in law that joint tenancy from one body owing the properties jointly, they have unity of possession, unity of interest, unity of title and unity of time of commencement of such tenancy. survivorship is an incident of joint tenancy by which each tenant stands the risk, of depriving his heirs of the inheritance by dying before the other joint tenants. once there is severance of joint tenancy, the principle of survivorship no more applies .there can be no; dispute that, on the filling of a suit for partition there is severance of joint status and, therefore, it follows that the death of plaintiff no. 1 having taken place during the pendency of this appeal, the interest of plaintiff no. 1 in the joint tenancy would not pass on by survivorship to the defendant. in this view of the matter, the judgment appears to have proceeded on art erroneous basis.4. some arguments have been advanced by the learned counsel for the opp. parties as to whether this would come within the purview of a review application under order 47, rule 1, c. p. c. in a decision of this court reported in air 1965 ori. 49 (harm pujhari and anr. v. state of orissa), the scope of order 47, rule 1, c. p. c. was explained with clarity. the view expressed in the said judgment is that order 47. rule 1, c, p. c. covers both cases of review on grounds of mistake or error of fact as well as of law provided it is apparent on the face of the record. if the error committed does not require any extraneous matter to show its incorrectness it is one apparent on the face of the record., their lordships relied upon the decisions reported in air 1955 sc 233 (hari vishnu kamath v. ahmad ishaque and ors. ) and air 1963 sc 1626 (k. m. shanjrmigam, proprietor, k, m. s. transport tanjore, madras state v. the s. r. v. s. (p) ltd. and ors. ) to reach the aforesaid conclusion. i have gone through some other decisions cited at the bar taking the same view and, therefore, the? same does not require any specific mention.5. i would, therefore, allow this application for review and as a consequence the judgment of the second appeal is set aside and the second appeal be included in the hearing list for fresh disposal in accordance with law.