JUDGMENT :

M.M. Sundresh, J.

1. Seeking review of the order passed by a Division Bench in confirming the order of the learned trial Court in decreeing the suit for specific performance, the present application has been filed.

2. Learned counsel appearing for the applicants/appellants made only one submission. It is submitted that there is an error apparent of the face of the record. The judgment and decree rendered by the trial Court. as confirmed by this Court, has to be termed as nullity. When once it is termed as nullity coupled with the fact that there is a lack of jurisdiction involving a question of law, then the review would be maintainable since it will amount to a void judgment.

3. In substance, the learned counsel has submitted that Ex. A1 speaks about the possession having been handed over in favour of the respondents by the appellants. Though the suit has been filed for specific performance and for permanent injunction restraining the applicants/appellants from alienating or encumbering the suit property, in the absence of any registration done as governed under Section 17 (1-A) of the Indian Registration Act, the suit ought to have been dismissed as not maintainable. Section 49 of the Registration Act only speaks about the effect of non-registration of documents required to be registered. To buttress his submission, learned counsel has relied upon the following decisions:

(i) Kiran Singh and Others v. Chaman Paswan and Others AIR 1954 SC 340 : LNIND 1954 SC 67 : (1954) 2 MLJ 60;

(ii) Maritime Electric Co., Ltd. v. General Dairies, Ltd. AIR 1937 PC 114 : LNIND 1937 PC 15;

(iii) P. Jayarama Pillai v. Union Bank of India and Another LNIND 1990 MAD 361 : (1991) 2 MLJ 43;

(iv) National Bank for Agriculture and Rural Development v. Gautham Constructions and Fisheries Pvt. Ltd. 1991-1-LW 411 : LNIND 1990 MAD 502, and

(v) Palaniammal and Others v. M. Ravi Shankiar and Another 2013-1-LW 998.

4. Learned counsel for the respondents has submitted that such a plea has never been raised either before the Court below or before this Court and that is the reason why no issue has been raised on that account. The first appellate court in exercise of the power under Section 96 of Code of Civil Procedure, is the final court of fact and law. What has been not raised and argued upon cannot be permitted to be raised by way of review before this Court. Even otherwise, Section 17(1-A) of the Registration Act only prevents a party from taking umbrage under Section 53-A of the Transfer of Property Act, 1882. Therefore, the direction cannot be sought for on the premise that the agreement speaks about handing over of the possession. Hence, it cannot be applied to those cases where a plaintiff goes to the Court seeking a relief for specific performance based upon unregistered agreement which contains a statement that possession has been handed over by the defendant.

5. Learned counsel further submitted that we are dealing with a case where the applicants/appellants have denied the very existence of Ex. A1 itself. Even in the legal notice issued and in the averments made in the plaint, it has been stated that the possession has not been handed over. It is also the case of the applicants, being the defendants, that possession has not been handed over. Under those circumstances, the review application will have to be dismissed. To buttress his submission, he relied upon the decision in Minor Ravi Bharathi v. P. Balasubramani and Another LNIND 2014 MAD 6651 : (2014) 8 MLJ 562.

6. Admittedly, the plea sought to be raised has not been raised throughout the proceedings before the trial Court and also at the time of deciding the appeal by the Division Bench of this Court. However, we do not want to stand on technicalities. The scope of the review is well known. Though there is a distinction between Order 47 and Section 114 of the Civil Procedure Code, when both the provisions are put together, this Court is not required to adopt a technical approach in all circums