CHANDRA BHAN Vs. RAM RATAN CHHABRA

JUDGEMENT

(1.) Heard Mr. L.P. Naithani, learned Senior Counsel assisted by Mr. Lokendra Dobhal, learned counsel for the appellants/applicants, Mr. Neeraj Garg, learned counsel for the respondents and perused the entire material available on record.

(2.) This review application has been filed under Order 47, Rule 1 of the Code of Civil Procedure by Shri Chandra Bhan plaintiff/appellant and others for reviewing the order dated 15th February 2007 passed by the Division Bench of this Court dismissing their first appeal bearing no. 406 of 2001 along with first appeal No. 22 of 2002 filed by Satish Chandra Chhabra, one of the respondents. The main ground raised by Mr. L.P. Naithani, learned Sr. Counsel is that this Court has not considered the plea taken by the appellant about the legal notice dated 05.08.1988 having served upon respondent Ram Ratan Chhabra through his counsel Surendra Prasad Parashar stating that the property should be partitioned by metes and bounds along with the proposal and the site plan as to how the property should be partitioned in two equal portion. Ram Ratan Chhabra had replied to the said notice on 10th August 1988 and agreed for the division of open space in front of the main house in two equal shares. It was clearly stated that he had no objection to consider and accept any suggestion, which was practicable and reasonable. Thus it is argued that this Court did not consider the contention and plea taken by the appellant that the property should have been divided by metes and bounds. It is further argued that the finding of this Court that property had been partitioned in the year 1958 and was given effect to is totally incorrect. Another plea taken by the learned counsel for the appellants is that the observation of this Court in paragraph-13 that there is no dispute between the plaintiff no. 1 and defendant no. 1 that the property was purchased as joint hindu family property is also incorrect. A bare reading of the covenant of the sale deed dated 16th July 1957 shows that both Ram Ratan Chhabra as well as Chandra Bhan as kartas of their family, had purchased the property in half and half share. They were co- owners but it is not depicted from the sale deed that the property was purchased as joint hindu family property.

(3.) Learned counsel for the appellants argued that if it is not possible to divide the property in equal share by metes and bounds then adjustment of the values of two portion by providing payment by co-owner who has a larger share to the other co-owners could be suggested. This position has been recognized in law and such a payment is termed as a provision for owelty or equality of partition. In support of this argument learned counsel for the appellants placed reliance upon the judgments of the Apex Court reported as Rani Aloka Dudhoria and others Vs. Goutam Dudhoria and others [(2009) 13 Supreme Court Cases 569]; R. Rama Murthi Iyer Vs. Raja V. Rajeswara Rao [(1972) 2 Supreme Court Cases 721] and Punjab National Bank Vs. Sahu Jain Charitable Society and others reported in [(2007) 7 Supreme Court Cases 83]. Learned counsel for the appellants further argued that since the judgment under review has been passed ignoring the material available on record, it is a clear case of an error apparent and non- consideration of relevant documents, therefore, judgment needs to be reviewed. This Court has ample power to correct all errors to prevent miscarriage of justice. Learned counsel for the appellants submitted that application under Order 47, Rule 1 of the Code of Civil Procedure would be maintainable not only upon discovery of a new and important piece of evidence or when there exist an error apparent on the face of the record but also if the same is necessitated on account of any other "sufficient reasons". He further submitted that the words "sufficient reasons" under Order 47, Rule 1 of the Code of Civil Procedure are wide enough to include misconception of fact or law by a court or even an advocate. In support of his argument learned counsel for the appellants further placed reliance upon a decision of Apex Court in the case of BCCI and another Vs. NetaJi Cricket Club and others reported in [(2005) 4 Supreme Court Cases 741].