Sri P. Premchand, and ors Vs. Sri Moolendra Kumar Gandhi and ors - Court Judgment

Excerpt:
[b. hinchigeri j.] this review petition is filed under order 47 rule 1 of cpc, praying for review of the order dated 04.10.2010 passed in w.p.no.2107/2009, on the file of the hon'ble high court of karnataka, bangalore.1. this petition is filed seeking the review of the order, dated 4.10.2010 passed in w.p.no.2107/09. the review petition is filed by the respondent nos.3 to 7 in the writ petition proceedings. to avoid the confusion, the parties in the review proceedings are referred to as per their ranks in the writ petition.2. the writ petition was disposed of with the following directions:"jo. the petitioners and me contesting respondents are directed to appear before the concerned officer of the respondent no.1 (assistant revenue officer, chandralayout range) at 10.30 a.m. on 23.10.2010 without waiting for any notice from the said assistant revenue officer. on considering the view-points to be put across by the rival parties and acting in the letter arid spirit of the judicial pronouncements to which a reference is made hereinabove, the assistant revenue officer shall take a decision in the matter in accordance with law within six weeks from 23.10.2010."3. sri ravishankar, the learned counsel for the respondent nos.3 to 7 submits that the respondent nos.3 to 6 were not the parties in o.s.nos.9077/96 and 9078/96 and o.s.no.986/87. only the respondent nos.2 and 7 were the parties to the said suit proceedings. he submits no decree whatsoever is passed against the respondent nos.3 to 6.4. sri ravishankar submits that the statement made by his colleague at the time of the disposal of the writ petition that the court commissioner is appointed for ascertaining the identity of the property is not correct. on the other hand, the execution court, by its order, dated 23.4.2010 passed in ex.no.459/07 has already allowed the i.a. holding that it is for the decree-holders (the petitioners) to prove that the properties purchased by them are the pordon of the execution petition schedule properties and that the respondent nos.1 to 4 to the application (respondent nos.3 to 6, in the writ petition) had purchased the same during the pendency of the suit; then only the respondent nos.3 to 6 can be termed as transferees pendent lite.5. he submits that no enquiry can be held by the respondents while considering the request for the transfer of khatha. on the other hand, if the change of khatha is effected fraudulently, the aggrieved party's remedy is to approach the commissioner invoking section 114a of the karnataka municipal corporations act, 1976 ('the said act' for short). this is all the more so when the khathas were transferred to the respondent nos. 3 to 7, as is evident from the annexure - e2 to e6 to the writ petition. he submits that the property bearing no.327 is sub-divided and consequently sub-numbers are assigned.6. he has also relied on the apex court's judgment in the case of board of control for cricket in india and another v. netaji cricket club and others reported in (2005) 4 scc 743,"88. we ate, furthermore, of the opinion that the jurisdiction of the high court in entertaining a review application cannot be said to be ex facie bad in law. section 114 of the coae empowers a court to review its order if the conditions precedent laid down therein are satisfied. the substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly providedin section 114 of the code in terms whereof it is empowered to make such order as it thinks fit. 89. order 47 rule 1 of the code provides for filing an application for review. such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason."7. sri paras jain, the learned counsel for the petitioner submits that the petitioners are the purchasers of the property standing at undivided no.327. he submits that the respondent no.2, on selling the property to the petitioners, gifted the portions of the same property to her sons, who in turn have sold them to the third parties. because of these forbidden transactions, the petitioners are being deprived of the fruits of decree, although the petitioners purchased the property 19 years ago. the transfer of khatha i being denied to them on account of the respondents engaging them in one or the other litigation. 8. sri paras jain further submits that a part of the petitioners' property in question was acquired for the purpose of metro rail project. the contesting respondents got the compensation amount disbursed to them. aggrieved by the same, the petitioners approached this court. this court disposed of w.p.no.9337/08 directing the land acquisition officer to hold the enquiry and to recover the amounts from the contesting respondents.9. he also brought to my notice the provisions contained in order xxi rule 102 of cpc to buttress his submission that as the respondent nos.3 to 7 claim under the second respondent judgment debtor, they are not entitled to any protection in law. in support of his submission, he relied on the hon'ble supreme court's judgment in the case of usha sink a v. dina ram and others reported in (2007) 7 scc 144. 10. sri b.v. muralidhar, the learned counsel for the respondent no.1 submits that the lis is between the petitioners and the other respondents and that the bbmp is only anxious to follow any direction that this court may give.11. the rival submissions made at the bar have received my thoughtful consideration. it is beneficial to refer to the apex court's judgment in the case of satyanarayan laxminarayan hegde and others v. mallikarjun bhavanappa tirumale reported in air 1960 sc 137, wherein it is held that 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.12. whether the petitioners have to approach the commissioner invoking section 114a of the said act cannot he consider in the review proceedings the scope for review is rather limited. that apart, the requirement of section 114(3) of the said act, is that whenever transfer of property comes to the knowledge of the commissioner or authorised officer through such notice the name of the transferee shall be entered in the property tax register. 13. as far as the seeking of the relief of possession in the suit proceeding is concerned, all the learned advocates agree that it involves only the respondent nos.2 and 7. i therefore have no hesitation in correcting what is set out in para 4 of the order as the respondent nos.2 and 7' in lieu of 'the respondent nos.2 to 7'.14 regarding the submissions urged on behalf of the petitioners that the respondent nos.2 to 7 are not entitled to any protection in view of the provisions contained in order xxi rule 102 and the interpretation which the said provisions have received at the hands of the apex court in the case of usha sinha (supra), i do not find any need to dwell on the same. it is for the parties to take up these contentions before the execution court. similarly, that this court has directed the land acquisition officer to recover the amounts and hold an enquiry, even if true, have no relevance for disposing of this review petition. in the order, dated 4.10.2010 this court has observed that it is for the execution court to adjudicate the matter, if there is some dispute regarding the identity of the property. therefore, the same does not require any further elucidation or amplification. but the direction contained in para 8 of the order requires clarification. para 8 is extracted herein below: "8. this court, by its order, dated 5.11.1998 disposed of w.p.no. 19205/92 with an observation that the respondent no.1 and his assistant revenue officer are required to make the necessary entries in the municipal records consequent upon the decision of the civil court, which may become final. the matter has attained finality in view of the dismissal of the second respondent's suit by the civil court and its confirmation by the division bench of this court and further by the apex court. the respondent no. 1 is therefore directed to act in conformity with the judicial pronouncements."15. the last sentence in para 8 that the respondent no.1 is directed to act in conformity with the judicial pronouncement is inclusive and not exclusive of the proceedings in the execution proceedings. subject to the above said clarification and the correction in para 13 of this order as the 'respondent nos.2 and 7' and not respondent nos.2 to 7 as stated in para 4 of the order passed in the writ petition, this petition is disposed of.16. no order as to costs.

Judgment:
1. This petition is filed seeking the review of the order, dated 4.10.2010 passed in W.P.No.2107/09. The review petition is filed by the respondent Nos.3 to 7 in the writ petition proceedings. To avoid the confusion, the parties in the review proceedings are referred to as per their ranks in the writ petition.

2. The writ petition was disposed of with the following directions:

"JO. The petitioners and me contesting respondents are directed to appear before the concerned Officer of the respondent No.1 (Assistant Revenue Officer, Chandralayout range) at 10.30 a.m. on 23.10.2010 without waiting for any notice from the said Assistant Revenue Officer. On considering the view-points to be put across by the rival parties and acting in the letter arid spirit of the judicial pronouncements to which a reference is made hereinabove, the Assistant Revenue Officer shall take a decision in the matter in accordance with law within six weeks from 23.10.2010."

3. Sri Ravishankar, the learned counsel for the respondent Nos.3 to 7 submits that the respondent Nos.3 to 6 were not the parties in O.S.Nos.9077/96 and 9078/96 and O.S.No.986/87. Only the respondent Nos.2 and 7 were the parties to the said suit proceedings. He submits no decree whatsoever is passed against the respondent Nos.3 to 6.

4. Sri Ravishankar submits that the statement made by his colleague at the time of the disposal of the writ petition that the Court Commissioner is appointed for ascertaining the identity of the property is not correct. On the other hand, the Execution Court, by its order, dated 23.4.2010 passed in Ex.No.459/07 has already allowed the i.A. holding that it is for the decree-holders (the petitioners) to prove that the properties purchased by them are the pordon of the execution petition schedule properties and that the respondent Nos.1 to 4 to the application (respondent Nos.3 to 6, in the writ petition) had purchased the same during the pendency of the suit; then only the respondent Nos.3 to 6 can be termed as transferees pendent lite.

5. he submits that no enquiry can be held by the respondents while considering the request for the transfer of khatha. On the other hand, if the change of khatha is effected fraudulently, the aggrieved party's remedy is to approach the Commissioner invoking Section 114A of the Karnataka Municipal Corporations Act, 1976 ('the said Act' for short). This is all the more so when the khathas were transferred to the respondent Nos. 3 to 7, as is evident from the Annexure - E2 to E6 to the writ petition. He submits that the property bearing No.327 is sub-divided and consequently sub-numbers are assigned.

6. He has also relied on the Apex Court's judgment in the case of BOARD OF CONTROL FOR CRICKET IN INDIA AND ANOTHER v. NETAJI CRICKET CLUB AND OTHERS reported in (2005) 4 SCC 743,

"88. We ate, furthermore, of the opinion that the jurisdiction of the High Court in entertaining a review application cannot be said to be ex facie bad in law. Section 114 of the Coae empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided

in Section 114 of the Code in terms whereof it is empowered to make such order as it thinks fit. 89. Order 47 Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason."

7. Sri Paras Jain, the learned counsel for the petitioner submits that the petitioners are the purchasers of the property standing at undivided No.327. He submits that the respondent No.2, on selling the property to the petitioners, gifted the portions of the same property to her sons, who in turn have sold them to the third parties. Because of these forbidden transactions, the petitioners are being deprived of the fruits of decree, although the petitioners purchased the property 19 years ago. The transfer of Khatha i being denied to them on account of the respondents engaging them in one or the other litigation.

8. Sri Paras Jain further submits that a part of the petitioners' property in question was acquired for the purpose of Metro Rail Project. The contesting respondents got the compensation amount disbursed to them. Aggrieved by the same, the petitioners approached this Court. This Court disposed of W.P.No.9337/08 directing the Land Acquisition Officer to hold the enquiry and to recover the amounts from the contesting respondents.

9. He also brought to my notice the provisions contained in Order XXI Rule 102 of CPC to buttress his submission that as the respondent Nos.3 to 7 claim under the second respondent judgment debtor, they are not entitled to any protection in law. In support of his submission, he relied on the Hon'ble Supreme Court's judgment in the case of USHA SINK A v. DINA RAM AND OTHERS reported in (2007) 7 SCC 144.

10. Sri B.V. Muralidhar, the learned counsel for the respondent No.1 submits that the lis is between the petitioners and the other respondents and that the BBMP is only anxious to follow any direction that this Court may give.

11. The rival submissions made at the bar have received my thoughtful consideration. It is beneficial to refer to the Apex Court's judgment in the case of SATYANARAYAN LAXMINARAYAN HEGDE AND OTHERS v. MALLIKARJUN BHAVANAPPA TIRUMALE reported in AIR 1960 SC 137, wherein it is held that 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.

12. Whether the petitioners have to approach the Commissioner invoking Section 114A of the said Act cannot he consider in the review proceedings The scope for review is rather limited. That apart, the requirement of Section 114(3) of the said Act, is that whenever transfer of property comes to the knowledge of the Commissioner or authorised officer through such notice the name of the transferee shall be entered in the property tax register.

13. As far as the seeking of the relief of possession in the suit proceeding is concerned, all the learned advocates agree that it involves only the respondent Nos.2 and 7. I therefore have no hesitation in correcting what is set out in para 4 of the order as the respondent Nos.2 and 7' in lieu of 'the respondent Nos.2 to 7'.

14 Regarding the submissions urged on behalf of the petitioners that the respondent Nos.2 to 7 are not entitled to any protection in view of the provisions contained in Order XXI Rule 102 and the interpretation which the said provisions have received at the hands of the Apex Court in the case of Usha Sinha (supra), I do not find any need to dwell on the same. It is for the parties to take up these contentions before the Execution Court. Similarly, that this Court has directed the Land Acquisition Officer to recover the amounts and hold an enquiry, even if true, have no relevance for disposing of this review petition. In the order, dated 4.10.2010 this Court has observed that it is for the Execution Court to adjudicate the matter, if there is some dispute regarding the identity of the property. Therefore, the same does not require any further elucidation or amplification. But the direction contained in para 8 of the order requires clarification. Para 8 is extracted herein below:

"8. This Court, by its order, dated 5.11.1998 disposed of W.P.No. 19205/92 with an observation that the respondent No.1 and his Assistant Revenue Officer are required to make the necessary entries in the municipal records consequent upon the decision of the Civil Court, which may become final. The matter has attained finality in view of the dismissal of the second respondent's suit by the Civil Court and its confirmation by the Division Bench of this Court and further by the Apex Court. The respondent No. 1 is therefore directed to act in conformity with the judicial pronouncements."

15. The last sentence in para 8 that the respondent No.1 is directed to act in conformity with the judicial pronouncement is inclusive and not exclusive of the proceedings in the execution proceedings. Subject to the above said clarification and the correction in para 13 of this order as the 'respondent Nos.2 and 7' and not respondent Nos.2 to 7 as stated in para 4 of the order passed in the writ petition, this petition is disposed of.

16. No order as to costs.