Bench:
T Nath
Issue:
Whether the award declaring the respective shares of the defendants was placed before the second appellate court?
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Facts:
• Sant Mallik, father of defendant is the karta of the joint family consisting of himself and all the other defendants.
• He had executed a Mahaddanama in favour of the plaintiff in respect of a plot of land of 1 bigha 18 kathas 5 dhurs of land in village Mahinam Patti.
• The consideration of the sale was Rs. 1900/-
• In the meantime, Sant Mallik, unfortunately, fell ill with the result that the sale deed agreed to between the parties could not be executed by him.
• After the death of Sant Mallik, the plaintiff asked his sons and other heirs of the defendants to execute the deed, but they refused, and hence the plaintiff instituted the suit.
• The suit is for specific performance of a contract of sale of the aforesaid land.
Applicant/Defendant's contentions:
• Defendant Nos. 1 and 3 took up the plea that the Mahaddanama was a fraudulent and fabricated document and that Sant Mallik had no right, title or interest in the property described in the Mahaddanama.
• Sant Mallik got the joint family properties partitioned and the properties described in Schedule I of the written statement were allotted to defendant Nos. 1 and 3; those described in Schedule II were allotted to defendant No. 2 and 18 kathas of land described in Schedule III were allotted to Sant Mallik.
• They relied upon an award for showing that 18 kathas only were allotted to Sant Mallik and he could not alienate any property beyond what was given to him by the said award.
• Defendant No. 2 also took similar pleas; but he died during the pendency of the suit and then his heirs were substituted.
• In the review of the judgement, the applicant/defendant contended that 18 kathas of land given to Sant under the award was only for maintenance, and, therefore, Sant could not make any contract for sale in respect of it in favour of the plaintiff.
Respondent/Plaintiff's contentions:
• In the review application, the respondents contended that the award could not be placed before the court at the time of the hearing of the second appeal and thus there is an error apparent on the face of the record which can be a ground for the review of the judgment.
• He further contended that if on account of misapprehension either of fact or of law, a document could not be placed before the Court at the time of the hearing of the case, it is open to the Court to review its judgment and give an opportunity to the party to urge the point left over or place the document which by inadvertence was not placed or relied upon.
• It is immaterial whether the mistake was brought about by the omission of the Court or omission of the lawyer, but it was surely an error which was apparent on the face of the record.
Judgement:
The review court held that the Mahaddanama was genuine, valid and for consideration, but it remanded the case to the lower appellate Court for deciding the issues regarding the partition of the suit. The lower appellate Court held that there was a partition by metes and bounds among Sant Mallik and his sons in 1942 and by the said partition only 18 kathas of land were allotted to the share of Sant Mallik. The lower appellate Court further declared that the Mahaddanama was valid and binding only to the extent of 18 kathas as allotted to Sant Mallik and the defendants had to execute sale deed in favour of the plaintiff for that area. Sant Malik could not contract to sell beyond the area allotted to him. In the review of the judgement, the court held the contention raised by the applicant/defendant have not been raised in neither the two courts below nor the award has been brought before the trial court or the lower appellate court and hence could not be raised in the second appeal. The court dismissed the appeal with costs payable to plaintiff as mentioned in the last paragraph of the judgement.
