PATNA, India, Feb. 17 -- Patna High Court issued the following judgment on Jan 16:
1. This review application has been filed under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "C.P.C.") against the judgment dated 02.08.2022 passed by this Court in Second Appeal No.17 of 2015 (hereinafter referred to as "impugned judgment") which was dismissed on the ground that no substantial question of law arose for consideration in the second appeal filed by the appellants.
2. Heard learned counsel for the petitioners.
3. The learned Trial Court dismissed the suit bearing Title Partition Suit No.94 of 1984 on contest filed by plaintiffs vide judgment dated 30.08.1996 and decree dated 18.09.1996. The learned First Appellate Court vide judgment dated 01.11.2014 also dismissed the appeal on contest bearing Title appeal No.76 of 1996 filed by the appellant nos.1 to 5/ plaintiffs in which appellant nos.6 to 9, who were defendant nos. 9 to 12 in the learned Trial Court and respondent nos. 7 to 10 in the appeal, were transposed in the said appeal on their prayer that appellant nos. 1 to 5 have their interest to contest the appeal.
4. The Second Appeal No.17 of 2015 filed by the petitioners herein has been dismissed by this Court vide judgment dated 02.08.2022. This Court after considering the submission on behalf of the appellants, on perusal of judgment of both the Courts i.e. learned Trial Court and learned First Appellate Court, and the materials on record held that the findings are based upon appreciation of evidence on record and there is no perversity or unreasonableness in the finding. It was observed that the First Appellate Court is a final fact finding authority and in absence of demonstrated perversity in its findings, interference by this Court in the Second Appeal was not warranted. Aggrieved by the said dismissal of Second Appeal filed by the appellants/petitioners, the appellants/ petitioners have preferred this Civil Review.
5. Learned counsel for the petitioners submitted that the impugned judgment suffers from error apparent on the face of the record and has been passed with material irregularity in exercise of its jurisdiction. It is submitted that this Court failed to consider that respondent nos. 7 to 10 who were defendant nos. 9 to 12 (sons of defendant no.2) upon transposition as appellant nos.6 to 9, petitioners herein, acquired all rights of the plaintiffs, including the right to seek amendment of the plaint filed by the plaintiffs at any stage and rejection of their amendment petitions dated 18.09.2009 and 13.10.2014 by the learned First Appellate Court is illegal and not sustainable in law. It is further submitted that the learned First Appellate Court held that the suit property in Schedule-II is joint property rather it is separate property of contesting respondent no.1 and his descendants and thereby reversed the finding of the learned Trial Court that the suit property is joint family property which is erroneous in law. Therefore, it is submitted that the impugned judgment suffers from manifest errors apparent on the face of the record and warrants review.
*Rest of the document can be viewed at: (https://patnahighcourt.gov.in/viewjudgment/MTEjMTk5IzIwMjIjMSNO-Kml9EP9IuKo=)
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