Point of Law: Documents were very well within knowledge of plaintiff and admittedly, were not placed before Courts below.

ORDER :

1. The present review petition has been preferred against the judgment dated 28.08.2017 passed in S.B. Civil Second Appeal No.169/2013 whereby the second appeal as preferred by the plaintiff-Badan Kanwar has been dismissed.

2. It is an admitted fact that against the judgment dated 28.08.2017, an SLP was preferred by the plaintiff-appellant before the Hon’ble Apex Court which was disposed of on 09.01.2020. The order of the Hon’ble Apex Court dated 09.01.2020 has been placed on record today by learned counsel for the petitioner which reads as under:

“Heard the learned counsel appearing for the petitioner.

Number of opportunities have been granted but again adjournment is sought on the ground that the Review Petition is still pending before the High Court.

We are not inclined to entertain this Special Leave Petition any longer without expressing any opinion on the merits of the case.

The Special Leave Petition is, accordingly, dismissed.

Once the Review Petition is decided, it shall be open to the petitioner to approach this Court again if so advised.”

3. Therefore, the present review petition has been pursued by learned counsel for the petitioner with the submission that as the Hon’ble Apex Court did not go into the merits of the impugned judgment, the grounds as raised in the review petition can be considered by this Court.

4. On merits, learned counsel for the petitioner submitted that the judgment dated 28.08.2017 deserves to be reviewed firstly on the ground that the application under Order 41 Rule 27, CPC as preferred by the petitioner in the second appeal was not considered and was dismissed summarily only by one sentence as under:

“For the same reason, the misc. application filed by the appellant-plaintiff under Order 41 Rule 27, CPC is also required to be dismissed and the same is hereby dismissed.”

5. Learned counsel submitted that the documents as filed along with the application under Order 41 Rule 27, CPC were the documents which had come into existence after passing of the impugned judgment and were the specific documents to prove possession of the plaintiff and therefore, ought to have been considered and ought to have been taken on record by the Court. The rejection of the application without any consideration is therefore, bad and the same deserves to be reviewed. The second ground raised by learned counsel is that the suit was not barred by limitation and the finding of the learned Courts below on the said issue has not been dealt with by the Appellate Court. Thirdly, it has been submitted that in terms of Sections 6 & 42 of the Transfer of Property Act, 1882, husband of the plaintiff was not competent to execute the sale-deed in favour of the defendant as he was not khatedar of the land in question at that point of time and therefore, the suit ought to have been decreed in favour of the plaintiff on that sole ground.

6. Heard learned counsel for the parties and perused the material available on record.

7. A bare perusal of the impugned judgment makes it clear that both the issues regarding the limitation as well as the incompetency of husband of the plaintiff to execute the sale-deed have been discussed in detail by the Court and specific findings on the said issues have been recorded. Even the judgments on the issues have been considered and the ratio laid down therein has been applied in the present matter by the Court. Dealing with the issue on limitation, the Court specifically observed as under:

“In the examination in chief, DW-1 Bheem Singh, the respondent clearly stated that at the time of execution of sale deed Ex.1, late Shri Padam Singh received consideration of said land and then after late Shri Padam Singh gave that amount to his wife plaintiff Badan Kanwar, but not a single question has been asked to DW-1 respondent about his above averment, so in the cross-examination, this fact stands unrubtted, so it is also proved that at the time of execution of sale deed Ex.1, the plaintiff was also pres