Property Dispute

ORDER :

This review petition is filed praying this Court to review the judgment and decree passed in R.F.A.No.1013/2013 dated 02.12.2019, confirming the judgment and decree passed by the Trial Court in O.S.No.4416/2006 dated 27.03.2013.

2. The main contention urged in this review petition is that in spite of the Trial Court directed to produce the original power of attorney, the same has not been produced and ought to have drawn an adverse information with regard to non production of power of attorney. The learned counsel also would vehemently contend that the very title of the plaintiff was denied before the Trial Court. When such being the case, the suit for bare injunction is not maintainable.

3. The learned counsel appearing for the review petitioner would contend that in view of the judgment of the Apex Court in the case of JHARKHAND STATE HOUSING BOARD v. DIDAR SINGH AND ANOTHER reported in (2019) 17 SCC 692, in paragraph No.12, held that, it is for the plaintiff to seek declaration and hence the suit for permanent injunction is not maintainable. The Court is empowered to decide the issue of declaration in the same suit to mitigate the litigation and hence filed the review petition. The learned counsel also would contend that while arguing the appeal by oversight did not place the citation in the case of ANATHULA SUDHAKAR v. BUCHI REDDY (DEAD) BY L.Rs., and Ors. reported in 2008 AIR SCW 2692. This Court while considering the appeal in paragraph No.16 in page No.29 held that “it is left open to the parties to file a comprehensive suit with regard to declaration”. Further observed in page No.28 that “both the parties are claiming their respective title based on the sale deed”. When such observations are made, the said observations should be made against the plaintiff/respondent particularly and if that is modified to such an extent, the dispute will be decided in a particular manner. Hence, modify the said judgment by allowing the review petition.

4. Per contra, the learned counsel appearing for the respondent/plaintiff would vehemently contend that the suit is filed only for a bare injunction and no need to seek for declaration. The Trial Court framed issue No.3, i.e., whether it needs to seek the relief of declaration, the same is answered as ‘negative’. Apart from that, even the review petitioner herein has not cross-examined P.Ws.1 and 2. The Trial Court has given the reasoning in paragraph No.30 of the judgment that when the suit is filed for a bare injunction, need not necessary to seek for declaration and the very case of the plaintiff has not been challenged by the petitioner herein.

5. In reply to the arguments of the learned counsel for the respondent, learned counsel appearing for the review petitioner would vehemently contend that not examined the power of attorney holder and also the executor has not been examined. Exs.D10 and D11 are produced with regard to cancellation and the order sheet is also clear that directed the plaintiff to produce the original power of attorney; the same has not been produced.

6. Having heard the respective counsel and the grounds which have been urged in the review petition and also on perusal of the material available on record, the points that would arise for consideration of this Court are:-

(i) Whether the review petitioner has made out a ground to review the judgment and decree passed in R.F.A.No.1013/2013?

(ii) What order?

Point No.(i):

7. Having heard the respective counsel and on perusal of the material available on record and also the grounds urged in this review petition, the same are replica of the earlier grounds which have been urged in the appeal. No doubt, relied upon the judgment of the Apex Court in JHARKHAND STATE HOUSING BOARD’s case (supra), regarding maintainability of the permanent injunction suit. I have also considering the grounds urged in the review petition, no where urged the ground that this Court has committed an error apparent on the face of the record to invo