NIRANJAN SARKAR Vs. SWAPNA DAM

JUDGEMENT

(1.) This is an application under section 114 of the Code of Civil Procedure, 1908, for review of the judgment and decree passed by this court on 2-5-1997 in Second Appeal No.30 of 1993.

(2.) The relevant facts for disposal of this review application briefly are that the respondent No.1 filed a suit for declaration of right, title and interest in the suit land and for recovery of khas possession and perpetual injunction against the petitioners. The petitioners contested the said suit pleading, inter alia, in the written statement that the respondent No.1 had transferred the possession of the suit land to the petitioners in pursuance of a contract for sale and that the petitioners had legal and valid title to retain possession of the suit land, and to enforce the said contract for sale. The trial court after recording the evidence decreed the suit by judgment and decree dated 15-9-1992. The petitioners preferred an appeal, but the said appeal was also dismissed by the first appellate court by judgment and decree dated 30-9-1992. The petitioners then preferred Second Appeal No.30 of 1993 before this court, and at the time of admission of the said second appeal, the following two substantial question of law were formulated by this court on 17-12-1993 :

(3.) Mr. K.N. Bhattacharjee, learned counsel appearing for the petitioners, submitted that during the pendency of the second appeal, the respondent No.1 sold the suit land to the respondent No.2 and that such sale was hit by the principle of lis pendens as contained in section 52 of the Transfer of property Act, (for short, "the TP Act"). Mr. Bhattacharjee further submitted that since the respondent No.1 had sold suit land to the respondent No.2, the respondent No.1 had ceased to be the owner of the suit land and title in respect of the suit 1 and could not be declared in favour of respondent No.1. Mr. Bhattacharjee argued that the court while deciding the second appeal had not considered this important question of law and as a result there was an error apparent on the face of the record calling for review of the judgment passed in the second appeal. Mr Bhattacharjee cited the decision of the High Court of Jammu and Kashmir in Custodian General EP v. Mohd. Syed, AIR 1970 JK 163, in which it has been held that where a specific provision of law is not pointed out to the court at the time of passing of the order, such an order suffers from an error apparent on the face of the record so as to justify a review. Mr. Bhattacharjee finally submitted that findings by this court in the judgment in Second Appeal No. 30 of 1993 on section 53A of the TP Act also should be reconsidered by this court.