REV.APPL/181/2023 of SUBBAEGOWDER Vs MARAKKAL on 9 September 2026

ORDER

The appellant before this Court has filed this Review Application seeking to review the judgement and decree in SA.No.1132 of 2021.

2. The Review Application has been filed primarily on the ground that the contiguous allotment was not considered by the 1st Appellate Court as well as this Court, as no documents were produced to prove that the claim of respondents 1 to 3 were withdrawn and that the appellant has now produced the same in the form of the memo of withdrawal dated 27.11.2012 and 13.12.2019 which was recorded in IA.No.858 of 2014 on 04.01.2020; that the Courts below ought to have granted the major portion consisting of A – D to the petitioner and E to the plaintiff/4th respondent and the allotment of portion ‘C; to the 4th respondent thereby halving the shares of the petitioner into 2 was erroneous.

3. In order to appreciate the Review Application a brief resume of the facts preceeding the filing of this Review Application is herein below set out

4. The petitioner herein had filed OS.No.578 of 2009 to declare that he is is the absolute owner of the suit property and for a permanent injunction restraining the respondents from interfering with his possession and enjoyment of the same. Pending this suit, the respondents 1 to 4 herein had filed

OS.No.744 of 2011 seeking partition of the suit property into 5 equal shares and allotting 4 shares to respondents 1 to 4 and one share to the petitioner. By common judgement dated 30.07.2014, the petitioner’s suit was dismissed and in the partition suit a preliminary decree for partition was passed. The decree for partition was challenged by filing AS.No.1 of 2015 which came to be dismissed. SA.No.94 of 2016 filed before this Court challenging the aforesaid judgement and decree in AS.No.1 of 2015 was also dismissed and the Special Leave Application to the Hon’ble Supreme Court is SLP.No.547 of 2018 also went against the petitioner. Therefore, the preliminary decree for partition allowing 4 shares to R.1 to R.4 and one share to the petitioner attained finality.

5. Thereafter, respondents 1 to 4 filed IA.No.858 of 2014 for passing of a final decree by effecting partition by metes and bounds. By judgement and decree dated 20.02.2010, the final decree came to be passed in and by which the properties which were divided into 5 parts and marked as ‘A’, ‘B’,’C’, ‘D’ and ‘E’ were allotted to the petitioner and the respondents. The portion marked ‘C’ was allotted to the 4th respondent herein and the portion marked ‘A’ was allotted to the petitioner herein and the other portions ‘B’, ‘D’ and ‘E’ to the other respondents. This decree was challenged by the petitioner by filing AS.No.42 of 2020 which was dismissed. Against this judgement and decree the petitioner has filed SA.No.1132 of 2021 (which is the subject matter of this Review Application) which was dismissed by judgement and decree dated 12.10.2022.

The petitioner has unsuccessfully challenged this judgement and decree by filing SLP.No.5917 of 2023 and without numbering the same had withdrawn the SLP with liberty to file a Review. Therefore, the petitioner has come forward with the aforesaid Review Application on the grounds extracted supra.

6. The learned counsel on either side have submitted written arguments and a gist of the same is extracted hereinbelow:-

7. The learned counsel for the Review petitioner would submit as his primary argument that the reason for not considering a contiguous allotment to the petitioner was on the ground that no documents were produced to prove the same. He would submit that the same is evidenced by the memo of withdrawal filed by respondents 1 to 3 on 27.11.2017 and once again on 13.12.2019 which has been recorded by the learned Judge in his order dated 04.014.2020 in IA.No.858 of 2014. This, he would submit, clearly proves that the petitioner was allotted a 4/5th share and the contesting 4th respondent was allotted a 1/5th share. The ancillary arguments thereafter was that though the Advocate Commissioner had divided the properties into 5 equal shares, pending the final decree proceedings, the petitioner become entitled to a 4/5th share. Therefore, he is entitled to shares marked as A – D as a contiguous land and the 4th respondent to the portion marked ‘E’. By allotting portion ‘C’ to the 4th respondent, the land has been fragmented and the petitioner’s share is split into two portion with the

4th respondent’s land running right in the middle of the property. By this division the principle objective of partition, ie. equitable distribution, has not been achieved. He would argue that the Court, under Order XXVI, Rule 14 CPC, is bestowed with the power to modify, vary and alter the Advocate Commissioner’s Report to ensure that the distribution is beneficial to the majority of shareholder. In this regard, he placed reliance on the judgement reported in (2019) CTC page 435 – Abdul Rasheed & Ors. Vs. Abdul Jabbar & Ors.

8. He would also place reliance upon the judgement of Maddineni Koteswara Rao Vs. Maddineni Bhaskara Rao reported in 2009 (13) SCC page 179 is support of his argument that despite a preliminary decree being passed in a final decree proceedings subsequent events can be taken into account by the Court. He sought to review the judgement and decree in SA.No.1132 of 2021.

9. Per contra, Mr.S. Prabhu, learned counsel for the 4th respondent would submit that the points urged in the Review Application have already been considered. He would further submit that the petitioner has not been handed over the shares of Respondents 1 to 3 and that there is no vesting of the properties of Respondents 1 to 3 on the petitioner. He would further submit that there is no error apparent on the face of the record. In support of this contention he would rely on the judgement reported in (1997) 8 SCC 715 Parsion Devi &

Others Vs. Sumitri Devi and others.

10. He would further submit that this Court cannot in a Review Application de novo examine the evidence. To support this argument he would rely on the following judgements:-

(i) (2019) 5 SCC 86- Asharfi Devi & Others Vs. State of Uttar Pradesh.

(ii) (2009) 7 SCC 514- Dinkar Sridhar Tamhankar Vs. Bhalchandra Sadshiv Kavadi.

(iii) (2023) 13 SCC 515 – S.Murali Sundaram Vs. Jothibai Kannan and others. He would therefore seek to have the Review Application dismissed.

11. Heard the learned counsel on either side, perused the written arguments and documents.

12. This Review Application has been filed stating that certain documents evidencing the transfer of the shares of Respondents 1 to 3 have not been brought to the notice of the Court and therefore the allotment of shares to each of the parties to the suit had been granted. However, these submissions are factually incorrect. In the memorandum of grounds of Second Appeal the Review petitioner has raised the following grounds:- “8. The Courts below ought to have seen that the memo filed by the respondent 1 to 3 herein stating their withdrawal from their respective claims and their share i.e. 3/5th of the suit property in the original suit vide O.S.No. 744/2011 in favour of the Appellant herein and thus the Court below ought to have passed a final decree allotting the shares as 4/5th to the Appellant herein as one property share and the balance 1/5thshare to the Respondents herein instead of dividing the suit schedule property into 5 equal shares mechanically is not correct and hence liable to be set aside.

9. The Courts below ought to have seen that the suit schedule property ought to have been allotted as 'A' share to the Appellant herein and B' share to the Respondents herein instead of allotting the shares as A, B,C,D and E portion in the suit schedule property and thus the same is liable to be set aside as opposed to equity and just and reasonable application of mind.

13. Further the Review petitioner has also raised the following substantial questions of law:- “1. Whether the Hon'ble Courts below are justified in allowing the final decree dated 20.07.2020 made in I.A. No. 858/2014 in O.S.No.744/2011 without considering the withdrawal of respective shares of 3 co sharers in favour of the Appellant herein?

2. Whether the Courts below are correct and justified in passing the final decree by ignoring and giving a go-bye to settled principles and propositions of law that when the procedure adopted by the Commissioner is flawed and illegal, a final decree cannot be passed on the basis of the same? This court has also framed the substantial questions in tune with this.

14. This points have been dealt with in paragraph nos.11 to 13 of the judgment in SA. No. 1132 of 2021. In the guise of this Review Application, the petitioner is seeking to re-agitate that the judgment is being erroneous. Therefore, it is no a case of the judgment suffering from an error apparent on the face of the record but one where the finding in the judgment is erroneous.

15. Let us now consider the primary argument that has been put forward by this Review petitioner in his grounds of review is that the division of shares is not equitable, contiguous and made allotting 4/5th share to the petitioner and 1/5th to the 4th respondent. The Review petitioner would in his grounds state that the Review Application is filed by virtue of the liberty granted by the Hon’ble Supreme Court and not on account of the same suffering from an error apparent on the face of the record or by reason of a new fact being brought to the notice of the Court. During the arguments it has been stated that the documents evidencing the transfer has not been brought to the court which is the memo filed on 23.11.2017 and 13.12.2019 and order dated 04.01.2020.

16. This memo filed on 27.11.2017 has been filed in the typed set of papers and the contents are extracted herein below:

17. This memorandum refers to a Family arrangement, however, the family arrangement has not been produced either before the lower Court or before this court. Even the joint memorandum of compromise which was filed before this court in SA.No.1132 of 2021 would refer to this memo.

There is nothing to show that the shares have been handed over to the petitioner by Respondents 1 to 3. The memo which is pressed into service only talks about the Family Arrangement which as already stated has not been placed for the courts consideration and its terms are not clear. Further, when the 3rd respondent had appeared before this court along with the 4th respondent on 17.04.2026 she had stated that the petitioner has not paid them the agreed amount and the petitioner has also admitted that the compensation in lieu of their shares has not been paid to Respondents 1 to 3 and it would be paid after the allotment of the shares. Therefore, the transfer of the shares has not been concluded and the respondents 1 to 3 have withdrawn from the proceedings on this assurance.

18. In the judgement of the Hon’ble Supreme Court in S.Murali Sundaram Vs. Jothibai Kannan and others - (2023) 13 SCC 515, the learned Judge relying on the earlier judgement of the Hon’ble Superplume Court reported in (2019) 20 SCC 753 - observed as follows: “16. While considering the aforesaid issue two decisions of this Court on Order 47 Rule 1 read with Section 114 CPC are required to be referred to? In the case of Perry Kansagra (supra) this Court has observed that while exercising the review jurisdiction in an application under Order 47 Rule 1 read with Section 114 CPC, the Review Court does not sit in appeal over its own order. It is observed that a rehearing of the matter is impermissible in law. It is further observed that review is not appeal in disguise. It is observed that power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. It is further observed that it is wholly unjustified and exhibits a tendency to rewrite a judgment by which the controversy has been finally decided.

17. After considering catena of decisions on exercise of review powers and principles relating to exercise of review jurisdiction under Order 47 Rule 1 CPC this Court had summed upon as under: “(i) Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC.

(ii) Power of review may be exercised when some mistake or error apparent on the fact of record is found. But error on the face of record must be such an error which must strike one on mere looking at the record and would not require any longdrawn process of reasoning on the points where there may conceivably by two opinions.

(iii) Power of review may not be exercised on the ground that the decision was erroneous on merits.

(iv) Power of review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court or even an advocate.

(v) An application for review may be necessitated by way of invoking the doctrine actus curiae neminem gravabit. It is further observed in the said decision that an error which is required to be detected by a process of reasoning can hardly be said to be an error on the face of the record.”

19. The discussion would clearly indicate that the petitioner is trying to re-argue the case and it is not a case of highlighting an error apparent on the face of the record or a case of discovery of a new evidence or proof. Consequently, the Review Application stands dismissed. No costs. Consequently, the connected Miscellaneous Petition is closed. 09-09-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No SHR

P.T.ASHA J. SHR REV.APPL No. 181 of 2023 AND CMP NO. 22894 OF 2023 09-09-2026 (1/2)