# Smt. Raj Pati Devi v. Ram Sewak Singh and others

- **Citation:** (2005) 1 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-04-04
- **Case number:** Review Application No. 1689 of 2002
- **Bench:** S.N. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-pati-devi-v-ram-sewak-singh-and-others-40442
- **Pages:** 7

## Headnote

Code of Civil Procedure-S. 100- read with
order 47 r. 1-Review application second
appeal decided on merit-after hearing to
both parties- whether can be reviewed
by another judge ? held-'yes'- where the
lower appellate court did not take into
pivotal
importance
of
record-
reappreciated
the
evidence
without
considering the evidence of two hand
writing experts-single judge dismissed
the second appeal-non consideration of
the facts which flews the substantial
question of law-held-good ground for
review.

Held- Para 10

In my considered view, the evidence of
two Experts and other allied evidence on
record as considered by the trial court
were
very
material
which
lower
appellate
court
did
not
take
into
reckoning and proceeded to upset the
finding on re-appreciation of evidences
without considering the evidence of
pivotal importance on record. Therefore,
the question that the lower appellate
court omitted from consideration the
evidence of two Hand-writing Experts is
a question of pivotal significance and the
learned Single Judge while dismissing
the second appeal in limine neither
noticed nor considered the question
which in fact was a substantial question
of law and therefore, in the facts and
circumstances, it is a fit case for review
by reason of an error of law apparent on
record.
Case law discussed:
2004 (4) SCC -122
1995 (1) SCR-1104
1964 (5) SCR-64
AIR 1989 SCR-22
AIR 1995 SC-1607
AIR 1988 SC-1858
2005 AIR SEW-1476

## Text

1 All] Smt. Raj Pati Devi V. Ram Sewak Singh and others
315
Government within the stipulated period
indicated herein before.

46. In view of the aforesaid
discussions and observations, the writ
petition succeeds in part hence allowed
partly.

47. There shall be no order as to
costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.04.2005
DATED: ALLAHABAD 31.03.2005

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Review Application No. 1689 of 2002
IN
Second Appeal No. 1434 of 2001

Smt. Raj Pati Devi

...Appellant
Versus
Ram Sewak Singh & ors. ...Respondents

Counsel for the Appellant:
Sri A.N. Bhargava
Sri R.K. Tiwari
Sri R.K. Ojha
Sri R.N. Singh

Counsel for the Respondents:
Sri R.S. Dwivedi
Sri R.N. Upadhyay
Sri V.S. Dwivedi

Code of Civil Procedure-S. 100- read with
order 47 r. 1-Review application second
appeal decided on merit-after hearing to
both parties- whether can be reviewed
by another judge ? held-'yes'- where the
lower appellate court did not take into
pivotal
importance
of
record-
reappreciated
the
evidence
without
considering the evidence of two hand
writing experts-single judge dismissed
the second appeal-non consideration of
the facts which flews the substantial
question of law-held-good ground for
review.

Held- Para 10

In my considered view, the evidence of
two Experts and other allied evidence on
record as considered by the trial court
were
very
material
which
lower
appellate
court
did
not
take
into
reckoning and proceeded to upset the
finding on re-appreciation of evidences
without considering the evidence of
pivotal importance on record. Therefore,
the question that the lower appellate
court omitted from consideration the
evidence of two Hand-writing Experts is
a question of pivotal significance and the
learned Single Judge while dismissing
the second appeal in limine neither
noticed nor considered the question
which in fact was a substantial question
of law and therefore, in the facts and
circumstances, it is a fit case for review
by reason of an error of law apparent on
record.
Case law discussed:
2004 (4) SCC -122
1995 (1) SCR-1104
1964 (5) SCR-64
AIR 1989 SCR-22
AIR 1995 SC-1607
AIR 1988 SC-1858
2005 AIR SEW-1476

(Delivered by Hon'ble S.N. Srivastava, J.)

1. The defendant appellant has
preferred this review petition in which is
impugned the judgment of this Court
dated 28.12.2004 rendered by Hon. B.K.
Rathi, J whereby second appeal was
dismissed holding that no substantial
question of law arose for decision.

2. Initially, a preliminary objection
was brought to bear assailing the
jurisdiction of this Court which was a
Court presided over by a Judge other than
316 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
the Judge who decided the second appeal
and therefore, arguments were heard and
the preliminary objection was disposed of
by means of order dated 31.3.2005 in
which plea was upheld that review was
maintainable. The case was set down for
hearing on merit on sustainability of
review petition on grounds as envisaged
in Order 47, Rule 1 C.P.C. for today. It is
today that the matter has been heard on
merit at prolix length.

3. A brief resume of necessary facts
is essential for proper appreciation of the
dispute involved in this case. It would
appear that a suit was instituted by the
plaintiff
appellant
for
specific
performance on the basis of agreement to
sale attended with further relief to deliver
possession of the property in question.
The plaintiff set up a case that defendant
Ram Prasad had executed an agreement in
favour of plaintiff Jagjit Singh on 3.8.75
for sale of property in question agreeing
to a consideration of Rs.40,000/- out of
which a sum of Rs.30,000/- was accepted
by the defendant no.1 and the balance was
agreed to be paid at the time of execution
of sale deed. It is alleged that plaintiff was
delivered possession of the property in
question after receipt of Rs.30,000/-. It is
further alleged that the defendant no.1
dodged the issue of execution of sale deed
and subsequently, executed sale deed in
favour of defendant no.2. As a result, the
deceased plaintiff Jagjit Singh served a
registered notice and when it elicited no
response, he instituted the suit aforestated.
The defendants filed a joint written
statement
repudiating
the
plaint
allegations and denying execution of
agreement to sale as well as receipt of
consideration. It was pleaded by them that
the
document
was
forged
and
unenforceable in law and it was also
refuted that it bore signatures of defendant
no.1.

4. The trial court framed as many as
seven issues and in ultimate analysis,
dismissed the suit by means of judgment
and decree dated 27.1.1984. The plaintiff,
thereafter, preferred an appeal, which
culminated
in
being
allowed,
vide
judgment and decree dated 21.9.2001
attended with direction to execute sale
deed in terms of agreement excepting plot
nos. 1235, 1236, 1239, 1306 and 1407. It
is in this backdrop that the second appeal
came to be preferred in this Court. As
stated supra, the second appeal was
dismissed in limine by Hon. B.K. Rathi, J
by means of judgment dated 28.11.2001.
The judgment dated 28.11.2001 rendered
by Hon. B.K. Rathi, is excerpted below.

"Hon. B.K. Rathi, J.
The suit was filed by respondent nos.
1 and 2 for specific performance of
contract for sale against the appellants
Smt. Rajpati Devi and her father Ram
Prasad Singh, who has since died. The
suit was dismissed by the trial court. The
first appellate court has allowed the
appeal and decreed the suit for specific
performance
of
contract
for
sale.
Aggrieved by it, this second appeal has
been preferred.

I have heard Sri R.K. Ojha, learned
counsel for the appellant and Sri R.N.
Upadhyaya, learned counsel for the
respondents nos. 1 and 2.

It is contended that the agreement
was unilateral and it was not signed by the
purchasers. However, the learned counsel
for the appellant could not show that the
agreement to sale should be bi-lateral.
1 All] Smt. Raj Pati Devi V. Ram Sewak Singh and others
317
The next question is that prior to the
agreement of sale certain plots were
already transferred by the defendants. The
plaintiff respondents, therefore, requested
that they forego claims regarding those
plots and the suit may be decreed
regarding other plots for the agreed
consideration. Therefore, this is also no
illegality in the order for specific
performance of contract for sale.

The other facts argued are factual
regarding the execution of the deed and
payment of the consideration.

The
second
appeal
cannot
be
admitted on facts. No substantial question
of law arise for decision in this appeal.

The
appeal
is
accordingly
dismissed."

5. Learned counsel for the appellant
premised his submission by arguing that
the
judgment
of
this
Court
dated
29.11.2001 wears the taint of an error of
law apparent on the face of record and
therefore, there is substantial reason writ
large for review. He also referred to trial
court judgment to bring home the point
that trial court on consideration of the
opinions of two hand-writing experts
examined by the parties, converged to
believe the opinion of the hand-writing
expert
examined
by
defendant
and
disbelieved the opinion of hand-writing
expert examined by the plaintiff and in
ultimate analysis, recorded a finding that
there was no similarity between the
disputed and admitted signatures. The
learned counsel also canvassed that
finding on question of execution of
agreement to sale was rightly recorded on
consideration
of
oral
as
well
as
documentary
evidence
including
the
appraisal of opinions of two hand-writing
experts examined in the case but the
lower appellate court ignored altogether
the opinions of the hand-writing experts
while deciding the appeal and arrived at a
conclusion by ignoring such material
evidence which constituted substantial
question of law and ought to have been
framed in the second appeal. He further
canvassed that while considering the
question of execution of deed, the learned
Single Judge has recorded a finding that
other arguments as to the execution of
deed and payment of consideration are
factual and second appeal cannot be
admitted on facts and it, proceeds the
arguments, is thus manifested that though
substantial question of law was urged
before the second appellate court but the
Court has erred in holding otherwise. The
learned counsel also relied upon a
decision of the Apex court in Green View
Tea
and
Industries
v.
Collector,
Golaghat, Assam and another1, and
urged that mistake being apparent on the
face of record, it is a fit case for review by
the Court. Per contra, learned counsel
appearing for the Opp. Parties contended
that judgment of this Court while
dismissing the second appeal does not
make out a case of error of law apparent
on the face of record and therefore, it is
not a fit case for review. He further
contended that this Court is wholly
incompetent to interfere with the finding
sitting in review over the judgment of this
Court. In order to bolster up his
contentions
that
Court
cannot
reappreciate
the
entire
evidence
by
reversing the finding of the appellate
court, the learned counsel relied upon a
decision reported in AIR 1975 SC 455
and AIR 2000 SC 1650. The learned

1 (2004) 4 SCC 122
318 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
counsel further urged that error apparent
on the face of record means an error,
which strikes one by mere looking at it
and does not require any long process of
reasoning on the point. He also relied
upon a decision reported in AIR 1987 SC
1160 and contended that other Judge is
wholly incompetent to review the finding
recorded by a previous Judge sitting in
judgment over the decision of Judge who
decided the second appeal and construed
the document. The learned counsel also
contended that mistake apparent on the
face of record cannot mean an error,
which has to be fished out, and searched.
He further contended that phrase "for any
other sufficient reason" used in Order 47
Rule 1 of the C.P.C. should be interpreted
as meaning a reason sufficient on grounds
at least analogous to those specified in the
rule. He further contended that even if
opinion of experts was omitted from
consideration, the finding could be
maintained from other evidence and this
cannot be a ground for review.

I
have
bestowed
my
anxious
considerations
to
the
respective
submissions made across the bar by the
learned counsel for the parties.

ERROR APPARENT ON THE
RECORD

6. As specified in Order 47, Rule 1
of the C.P.C. a review is restricted to (1)
discovery of new and important evidence
matter, which could not be produced at
the time of hearing, (2) error apparent on
the face of the record and (3) for any
other sufficient reason. Main brunt of the
argument of the learned counsel for the
appellant hinges on ''error apparent on the
face of the record'. Review, it is well
enunciated, is not a routine procedure and
the party seeking review must prove the
material error manifest on the face of
order resulting in miscarriage of justice. It
is also settled by a catena of decision that
no error could be said to be apparent on
the face of the record if it was not self
evidence and if it required an examination
or argument to establish it. With the
above principles bearing in mind, I
proceed to scan the decision of the trial
court as also the appellate court in order
to appreciate whether the decision of
lower appellate court suffers from an error
of law in ignoring the evidence of the two
hand-writing experts which was vital and
was elaborately discussed and deliberated
by the trial court and whether it
constituted ground for review considering
the expression "error apparent on the face
of the record".

7. There are certain decisions in
which the expression "error apparent on
the face of the record" has been dealt with
and explained. The first decision on the
point is Hari Vishnu Kamath v. Ahmad
Ishaque2. In this case, it has been
enunciated that an error apparent on the
record must be one which is manifest on
the face of the record. At the same time,
the Court also observed that the real
difficulty is not so much in the statement
of principle as in its application to the
facts of a particular case. In Syed Yakoob
v. Radha Krishna3, the Apex Court
observed that it is neither possible nor
desirable to attempt either to define or to
describe adequately cases of errors which
can appropriately be described as errors of
law apparent on the face of the record.
Whether or not an impugned error is an
error of law apparent on the face of the

2 (1995) 1 SCR 1104
3 (1964) 5 SCR 64
1 All] Smt. Raj Pati Devi V. Ram Sewak Singh and others
319
record must always depend on the facts
and circumstances of the case and upon
the nature and scope of legal provision,
which
is
alleged
to
have
been
misconstrued or contravened.

8. It would thus appear that
expression any error apparent on the
record should be determined in the light
of the facts and circumstances of each
case. However, from the discussion of the
above case-laws, it appears to be well
settled that an error can be said to be an
error apparent on the face of the record, if
it is patent, manifest or self evident.

Substantial question

What is substantial question of law
has to be gleaned from a discussion of the
following decisions.

9. In Suresh Kumar v. Town
Improvement Trust, Bhopal4, the Hon.
Supreme Court while dealing with the
question of compensation under the Land
Acquisition Act, quintessentially held that
in an appeal under Article 136 of the
Constitution of India involving the
question of valuation of acquired land,
Supreme Court will not interfere with the
award unless some erroneous principle
has been invoked or some important piece
of evidence has been overlooked or
misapplied. In S.V.R. Mudaliar and
others v. Mrs. Rajabu F. Buhari and
others5, the Apex Court observed that
before reversing a finding of fact, the
appellate court has to bear in mind the
reasons ascribed by the trial Court. The
Apex Court also quoted the view stated
by the Privy Council in Rani Hemant

4 AIR 1989 SC 1222
5 AIR 1995 SC 1607
Kumari v. Maharaja Jagadhindra Nath
(1906) 10 Cl W.N. 630 wherein while
regarding the appellate judgment of the
High Court of Judicature as careful and
able, it was stated that it did not come to
close quarters with the judgment which it
reviews and indeed never discusses or
even alludes to the reasoning of the
subordinate Judge. In Dilbagrai Punjabi
v. Sharad Chandra6, the Apex Court
while dealing with M.P. Accommodation
Control Act held that the court is under a
duty to examine the entire relevant
evidence on record and if it refuses to
consider important evidence having direct
bearing on the disputed issue and the error
which arises is of a magnitude that it
gives birth to a substantial question of
law, the High Court is fully authorised to
set aside the finding. It was a case in
which
lower
courts
had
without
considering the tenant's admission of the
landlord's title to disputed property as
contained in his reply to the notice given
by the landlord and in the numerous rent
receipts issued by the landlord, recorded
the finding that the landlord had failed to
establish his ownership to the disputed
property. In a recent decision in State of
Punjab v. Mohinder Singh7, the Apex
Court was seized of dispute relating to
date of birth. In the case the stand of the
respondent was that the date of birth was
entered in the service record by relying on
the horoscope and he claimed that both
school
leaving
certificate
and
the
horoscope were produced and the date of
birth was recorded by relying on the
horoscope. The Apex Court observed that
apart from the fact that there was no effort
to reconcile the discrepancy in the so
called horoscope and the school record is

6 AIR 1988 SC 1858
7 2005 AIR SCW 1476
320 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
a factor which has rightly been taken note
of by the trial court and without any
plausible reason the first appellate court
took a different view. The Apex Court
observed that the school records have
more probative value than a horoscope.
Where no other material is available, the
horoscope may be considered but subject
to its authenticity being established. These
aspects were not considered by the first
appellate court and the High Court. The
Apex Court further observed that since
the first appellate court acted on
irrelevant materials and left out of
consideration
relevant
materials,
question of law was involved. The Apex
Court also observed that the High Court
was therefore not justified in dismissing
the second appeal by observing that there
was no substantial question of law
involved.

10. From a perusal of the judgment
of the trial court it is evident that in order
to prove respective pleading i.e. whether
the agreement to sale bore signatures of
the defendant no.1 as pleaded by the
plaintiff, the trial court scanned the
opinions of the two experts produced and
examined by the parties in suit. The trial
court, it would appear, disbelieved the
opinion of hand-writing expert examined
by plaintiff and believed the opinion of
hand-writing expert examined by the
defendant no.1 and on that basis,
converged to the conclusion that the
document in question did not bear
signatures of defendant no.1. The trial
court also reckoned with other evidence
both oral and documentary which were
tangential to the conclusions arrived at by
the trial court and held that the agreement
to sale neither contained signatures of the
defendant no.1 nor executed by him. On
the other hand, from a close scrutiny of
the finding of the lower appellate court, it
does not appear that the court below
reckoned with this material aspect in
upsetting the finding of the trial court. In
my considered view, evidence of the two
hand-writing Experts was of pivotal
importance, which goes to the roots and
non-consideration thereof in his judgment
by the lower appellate court leaves an
imprint of error apparent on the face of
record and also gives rise to a substantial
question of law on the aspects of
execution of agreement to sale and
payment of consideration to the defendant
no.1. Learned counsel for the respondents
faltered and could not pinpoint from the
judgment of the appellate court whether
the lower appellate bestowed anxious
consideration to the evidence of the handwriting experts. Therefore, it follows that
the lower appellate court altogether
eschewed from consideration the evidence
of the Experts which was so material to be
taken into consideration in the facts and
circumstances of the case. While deciding
the second appeal in limine, the learned
Single Judge noticed two aspects. The
first aspect considered by the learned
Judge was whether the agreement was
unilateral or bi-lateral and proceeded to
observe that the learned counsel for the
appellant could not show that the
agreement to sale should be bi-lateral.
The next question considered by the
learned Single Judge was that prior to the
agreement of sale certain plots were
already transferred by the defendants. It
was also stated that plaintiff respondents
requested
that
they
forego
claims
regarding those plots and the suit may be
decreed regarding other plots for the
agreed consideration and in consequence
held that there is no illegality in the order
for specific performance of contract for
sale. In my considered view, the evidence
1 All] Ghanshyam Singh V. State of U.P. and others
321
of two Experts and other allied evidence
on record as considered by the trial court
were very material which lower appellate
court did not take into reckoning and
proceeded to upset the finding on reappreciation
of
evidences
without
considering the evidence of pivotal
importance on record. Therefore, the
question that the lower appellate court
omitted from consideration the evidence
of two Hand-writing Experts is a question
of pivotal significance and the learned
Single Judge while dismissing the second
appeal in limine neither noticed nor
considered the question which in fact was
a
substantial
question of law and
therefore, in the facts and circumstances,
it is a fit case for review by reason of an
error of law apparent on record.

11. Coming to grips with the
decisions cited across the bar by the
learned counsel for the respondents, I
would confine myself to saying that
decisions cited across the bar are
illuminating but they did not squarely
apply to the facts of this case.

12. As a result of foregoing
discussion, I am of the view that it is a fit
case for review.

13. In the result, Review petition is
allowed. In consequence, judgment and
order dated 28.11.2001 passed by this
Court dismissing the appeal in limine is
set aside. In the facts and circumstances
of the case there would be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 14965 of 2005

Ghanshyam Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Rajesh Rai

Counsel for the Respondents:
Sri S.R. Jaleel
Sri V.K. Singh, S.C.

U.P. Z.A. & L.R. Act-S-122-B (4-f)
Regularization
of
unauthorized
occupation-scheduled cast agriculturer
labour-continuing in possession of Gaon
Sabha
land
since
before
1.5.2002entitled
for
regularization
of
unauthorized possession-utter misuse by
the
Lekhpal-manipulating
favourable
report in favour of those who were
minor-Tehsildar
also
found
envolveDistrict
Magistrate
directed to hold
enquiry before 30.6.05 and to intimate
the Court by action taken.

Held- Para 4

In view of the aforesaid judgment in
Sanjai Kumar's case the petitioner can
get the benefit of Section 122-B (4-F) of
U.P.Z.A.L.R. only if he can show that his
name was entered in the revenue record
as occupant before 1.5.02 otherwise not.
Mere dropping of the proceeding under
Section 122-B of U.P.Z.A.L.R. Act does
not determine any substantive rights.

Case law discussed:
W.P.No. 13191 of 05 decided on 9.3.03