HORI LAL Vs. SHARWAN KUMAR

JUDGEMENT

(1.) By this order l propose to decide an application filed on behalf of the appellant under Order.47, Rule 1 of the Code of Civil Procedure seeking review of the Judgment dated 26th August, 1991 passed by me in R.S.A. 176/1977. The facts giving rise to the appeal were that house No.A-A/57, Old Rajinder Nagar,New Delhi was allotted to Nihal Chand in 1949. Nihal Chand sold the house to Sharwan Kumar by sale he deed dated 11th January, 1968. Respondent, Sharwan Kumar filed a suit for mandatory injunction against Hori lal, the predecessor in interest of the appellant on the allegations that after the purctiase of the house from his father Nihal Chand,he allowed his brother Hori Lal to remain in a room and portion of Verandah in front as a licensee. His license having been revoked by notice dated 14th October, 1969, he was called upon to clear off the portion of the house but he failed to do so. Hori lal contested be suit and pleaded that the properly was purchased by Joint Hindu Family consisting if his father Nihal Chand,himself and his brother Sharwan Kumar. He pleaded coownership in the house. The suit was decreed by the trial court. The first appeal by Hori Lal was dismissed. Both the courts below had found as a fact that the parties did not constitute a Joint Hindu Family and Nihal Chand was the absolute owner of the property in dispute. Both the courts below also held that Hori Lal was a licensee in a portion of the house. It was also held by both the courts that the suit for mandatory injunction was maintainable. In the Regular Second Appeal the only substantial question of law formulated was whether with the transfer of the property the license granted was revoked and thereafter the status of Hori Lal was that of a tress passer.

(2.) The only point that was convassed before me on behalf of the appellant was that the suit for mandatory injunction was not maintainable. I .affirmed that the suit for mandatory injuncion was maintainable and dismissed the appeal.

(3.) Now this application has been filed on behalf of the appellant under Order 47 Rule 1 Civil Procedure Code seeking review of the judgment. It is-alleged that vide letter No. CAF-D/4477/IMA dated 22nd November, 1991 and letter bearing No. CAF-D/447/ IMA/1991-883 dateed 22nd January, 1992 issued by the Assistant Settlement Officer, the appellant was supplied certified copies of the Appendices D and J. From the contents of the said appendices it is prima facie evident beyond any reasonable doubt that the disputed property, in fact, was allotted in the name of Pt. Nihal Chand and his sons namely-Chaman lal, Hori Lal, Girdhari lal and Sharwan Kumar. Till 31st January, 1955 the name of appellant Hori Lal was existing in the ration "card of his father Pt. Nihal Chand. In view of this the appellant could not be held as a licensee being a co-owner/co-sharer. It is also clear from the contents of the above Appendices that till 31st January, 1955 the appellant's name existed in the ration card of his father alongwith other members of the family. The facts mentioned in the said Appendices were not within the knowledge of the appellant before 22nd November, 1991 inspite of his exercise of due diligence and, thus, neither the said documents could have been produced nor the grounds based on those documents could have been pleaded by the appellant either before this court or before the courts below as the same could not be used properly without receiving the certified copies of the appendices. In these premises a prayer is made that the judgment dated 26th August, 1991 be reviewed declaring that the appellant is co-owner/co-sharer in the diluted property or in the alternative the case may be remanded for fresh trial.