The court clarified that a suit for cancellation of a sale deed does not necessitate a claim for possession, and cancellation nullifies any rights conferred under the deed.

JUDGMENT :

1. Heard Shri Arpit Agarwal, learned counsel for the applicants in review and defendant-appellants in decided second appeal and Shri Bhanu Bhushan Jauhari, learned counsel for the opposite parties in review and plaintiff/ respondents decided second appeal.

THE JUDGMENT/ORDER UNDER REVIEW

2. The instant application has been filed by defendant-appellants under Order 47 Rule 1 read with Section 114 CPC seeking review of my final judgment and order dated 16.12.2024, whereby I had dismissed Second Appeal No. 2565 of 1984 (Premwati and others Vs. Mihilal Sharma and another) on merits.

SUBMISSIONS OF APPLICANTS IN REVIEW

3. Learned counsel for the applicants submits that there is an error apparent on the face of record inasmuch as this Court, in 6th paragraph of the judgment dated 16.12.2024, though referred 5 substantial questions of law contained in the admission order dated 19.10.1984, being question Nos. (a) to (e), while this Court answered questions No. (a), (b), (c) and (d), it omitted to answer question No. (e) which relates to possession aspect and, therefore, the judgment is required to be reviewed. Elaborate submissions have been made by both sides with reference to the said question No. (e) and it is also urged by the applicants’ counsel that arguments were advanced during the course of hearing of the appeal also, however, this Court has not noted the same in the judgment.

4. From perusal of the judgment under review, this Court finds substance in the submissions made and finds an error apparent on the face of the record to the effect that question No. (e) was omitted from being answered by me. Therefore, this Court is inclined to review its judgment by answering the left out question No. (e). For the sake of convenience, the said question is reproduced as under:-

“(e) Whether in view of the defendants’ undisputed possession and the plaintiff’s failure to prove the sale deed and prior agreement to sell in his favour the suit could be decreed in his favour ?”

5. Learned counsel for the applicants submits that once the defendant-appellants were in possession over the disputed property and their names were also recorded at the time of institution of the suit, the suit for cancellation of sale deed without claiming relief of possession was not maintainable. Submission is that even in execution application, the decree holder has prayed for delivery of possession and, therefore, the decree holder, being out of possession since beginning, mere cancellation of sale deed would not suffice and, hence, the suit was bound to fail on this ground alone. It is further urged that when the suit was initially dismissed and civil appeal was filed by the plaintiffs before the District Court, the finding recorded by the trial court in favour of the defendants as regards actual and physical possession, was not challenged nor was the said finding set aside by the first appellate court and, therefore, the said finding stands against the respondents even today and, hence, the suit is bound to fail. It is further urged that subsequent suit claiming possession would be barred by Order 2 Rule 2 CPC and, therefore, neither in the present proceedings nor in any subsequent proceedings the respondents can get a relief of possession. Further submission is that though this Court took note of the judgment of Hon’ble Supreme Court in Deccan Paper Mills Co. Ltd. Vs. Regency Mahavir Properties and others : (2021) 4 SCC 786, the same was not dealt with and, hence, omission to consider the ratio laid down in the said authority also falls within the meaning and import of “an error apparent on the face of the record” and, when applied, the said judgment would be read in favour of the appellants and, consequently, the appeal would be liable to be allowed and not dismissed.

SUBMISSIONS OF OPPOSITE PARTIES IN REVIEW

6. Per contra, learned counsel for the responden