MOHAMMAD HUSSAIN Vs. EKRAM KHAN

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India, two substantial prayer of the petitioner are as follows :

(2.) A detailed narration of the facts is not necessary but a short reference would suffice the purpose. Petitioner filed O. S. No. 92 of 1983-I in the Court of munsif, Bhubaneswar (Presently), designated as Civil Judge (Junior Division). That suit was filed against opposite party No. 8 as the solitary defendant and describing him as a tenant of the suit house, Prayer was made for his eviction. Opposite party No. 8 contested the suit denying the title of the plaintiff over the suit house. Opp. party No. 8 asserted that late Bokhari Khan (father of opposite parties 1 to 7) was the real owner of the property and after his death his widow and sons and daughters having succeeded him, are the owner of the suit house and the property. Neither petitioner prayed for addition of those persons as defendants nor opposite party Nos. 1 to 7 were brought into record in that suit. The suit was decreed vide judgment dated 19-12-1986 (Annexure-1) with the direction to opposite party No. 8 to vacate possession of the suit house. Appeal preferred against that decree, by opposite party No. 8 was registered as T. A. No. 4/4 of 90/87 in the Court of the Second Additional District Judge, Bhubaneswar and it was dismissed on merit as per judgment dated 21-4-1992 (Annexure-2). Opposite parties 1 to 7 and their mother filed T. S. No. 47 of 1992 in the Court of Civil Judge (Junior Division), Bhubaneswar and the present petitioner and opposite party No. 8 figured respectively as defendant Nos. 1 and 2 in that suit. It was a suit for permanent injunction where the aforesaid plaintiffs asserted their title and possession and alleged about conspiracy between petitioner and opposite party No. 8. After possession of the rented house as a tenant was taken away in 1992 from opposite party No. 8. Petitioner filed written statement claiming title over the suit land and the house on the basis of a registered sale deed of the year 1959 and claimed to have constructed the suit house. He also made a reference to the decree passed by the Munsif and the Second Additional District Judge vide Annexures 1 and 2 and alleged that opposite party No. 8 has set up the above plaintiffs to create disturbance in his title and possession. The opposite party No. 8 remained ex parte. In his judgment (Annexure-5) dated 13-9-1996, learned Civil Judge (Junior Division), Bhubaneswar recorded the findings that admittedly plaintiffs are in possession of the suit property. The plaintiffs being not a party to the previous suit instituted by the petitioner, they are not bound by the said judgments and the decrees. He further recorded that while admitting Bokhari Khan as the predecessor in title, petitioner failed to prove that he purchased the suit land in the year 1959. Thus, considering the admitted possession of the plaintiffs and failure of the defendant No. 1 to prove purchase of the land and the admitted entity of the title with the plaintiffs' family, he decreed the suit. Petitioner thereafter filed a review application under Order 47, Rules 1 and 3 of the Code of Civil Procedure which was registered as Misc. case No. 319 of 1996. In that petition, inter alia, it was stated that (i) the decree is appealable, but no appeal had been preferred; (ii) The previous judgments of the Civil Court (Annexures 1 and 2) declaring title in favour of the petitioner is a judgment in rem and that finding is binding on the opp. party Nos. 1 to 7 and their mother; and (iii) without due consideration of Annexures 1 and 2 and proper evaluation of other evidence in record, the judgment passed by the Court (Civil Judge) is illegal and erroneous and it should be reviewed. Annexure-6 is that review application. Opposite party Nos. 1 to 7 filed their counter (Annexure-7). Keeping in view the aforesaid facts and circumstances and analysing the position of law relating to review, learned Civil Judge dismissed the review applications vide his order dated 27-2-1997 (Annexure-8) on the ground that review application does not merit consideration in the absence of any error apparent on the face of the record.As stated at the outset, petitioner has thus prayed for issue of a writ of certiorari to quash Annexures 5 and 8.

(3.) After hearing argument from both the parties, this Court does not find any merit in the writ application and the prayer thereof. Reasons in that respect are indicated as hereunder.