DR.MRINAL KANTI CHAUDHURI, J. - (1.) THIS review application is filed by the defendant/respondent Nos.3 and 4 against the judgement dated 27th April, 2013 passed by this Division Bench in F.A. No.202 of 2008. In this review application, the respondent Nos.3 and 4 have stated that the judgement of this Court suffers from error apparent on the face of the record and misconception of law by holding that Civil Court has jurisdiction to decide the order passed by competent authority under Urban Land (Ceiling and Regulation) Act, 1976, that according to Urban Land (Ceiling and Regulation) Act, 1976, every person holding vacant land in excess of the ceiling limit at the commencement of the Act shall file a statement before the competent authority, that since the appellants did not file such statement, the competent authority has no occasion to serve any notice on the appellants/opposite parties, that this Court, without following the decisions of Hon'ble Apex Court, wrongfully held the title of the plaintiffs/appellants/opposite parties by giving importance on the criminal court judgement and order and, therefore, the judgement of this Court suffers from error apparent on the face of the record. It is also stated in the petition that the aggrieved party may prefer appeal against the decisions of competent authority within the framework provided under the statute and ultimate decision also could be challenged under judicial review. It is also stated in the petition that this Division Bench while passing the judgement and decree, committed error apparent on the face of the record by overlooking the decisions of Hon'ble Apex Court that the Special Court can play the role of Civil Court and decide the question of title and possession, that this misconception of law by this Court is an error apparent on the face of the record. Therefore, the judgement requires to be reviewed. It has also been stated in the petition that this Court, due to the misconception of law, went on deciding the validity of the vesting proceedings under Urban Land (Ceiling and Regulation) Act, 1976. It has also been stated in the petition that the judgement of this Division Bench suffers from error apparent on the face of the record in deciding whether or not land is covered under the Land Ceiling Act or whether it was within the ceiling limit or not because those matters are within the purview of the Urban Land Ceiling Authority and the aggrieved party may prefer appeal under the statute and Civil Court cannot decide the said issue, that this Division Bench went on fully wrong while passing the instant judgement on the point of limitation as there is no manner of explanation of delay in filing the suit. That this Division Bench while passing judgement went on fully wrong on the point of limitation as the plaintiffs/appellants/opposite parties did not take any legal steps from the date of their dispossession. That the judgement of this Court suffers from error apparent on the face of the record as this Court did not consider that the plaintiffs/appellants did not advance any explanation for delay. That the judgement of this Court also suffers from error apparent on the face of the record as the Division Bench did not decide whether learned judge in the trial court had reached to a right conclusion and applied the correct context of law. The judgement of this Court also suffers from error apparent on the face of the record as the plaintiffs/appellants were unable to prove any document relating to the ownership of the land specially when defendant No.1 occupied the suit property after obtaining lease and payment of annual rent to the Government of West Bengal, that judgement of this Court also suffers from error apparent on the face of the record in determining the ownership of plaintiffs/appellants over the suit property since plaintiffs witness examined as P.W.1 failed to prove their case. It is further stated that judgement of this Court suffers from error apparent on the face of the record because this Division Bench failed to consider whether the plaintiffs/appellants have been able to prove their right, title, interest in the suit land by producing relevant documents. The judgement of this Court also suffers from error apparent on the face of the record because this Division Bench by passing the judgement failed to consider the fact that the defendant No.1 is in physical possession of the suit land. The judgement of this Court suffers from error apparent on the face of the record because this Division Bench failed to consider the fact that when the suit property was leased out by the State of West Bengal to the defendant/respondent No.1, separate right over the suit property was acquired by the defendant No.1, that this Court also failed to consider that the suit was barred by law of limitation and is not maintainable under the law. The judgement of this Court suffers from error apparent on the face of the record as this Division Bench, by passing the judgement, failed to look into the pleadings and documents and the case of defendant No.1 in correct perspective. The judgement also suffers from error apparent on the face of the record as this Division Bench while passing the judgement did not consider the fact that the judgement and decree of the learned trial court need not be interfered with. Therefore, these respondents Nos.3 and 4 have prayed for review of the judgement of this Division Bench.
(2.) THE learned counsel for the review petitioners has advanced elaborate argument on the point of review. According to him, this Division Bench failed to consider the legal position of marking documents as exhibits. It is submitted by learned counsel for the review petitioner that the documents marked exhibits are not proved in accordance with law. Learned counsel has referred to a decision of Life Insurance Corporation of India & Anr. vs. Ram Pal Singh Bisen reported in (2010)4 SCC 491. In the said decision Hon'ble Apex Court held that the admission of a document in Court may amount to admission of its contents but not their truth. Learned counsel has referred to further decision of Hon'ble Karnataka High Court in Krishna vs. Sanjeev reported in (2004)1 ICC (Kant) 858. It has been held therein that before a document is let in evidence, there should be a judicial determination of question whether it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document is admissible or not. It has been held further that at the time of admitting the document in evidence, it is open to the opposite party to raise objection regarding the admissibility of the document and if objections are raised, the Court is under obligation to decide the said objection. After the evidence is adduced at the final hearing, it is open to the party to address arguments regarding the admissibility of the document, to the relevancy of the document and proof of the document and the Court will decide all these questions in the course of its judgement. It has been held further in the said decision that if the Court decides to admit the document, then it shall follow the procedure prescribed under Order XIII Rule 4(1) of CPC and mark the document. In the present case, it appears from Order No.149 dated 15th January, 2007 that the documents filed by plaintiffs are marked exhibit as per exhibit list. It also appears from Order No.165 dated 19.03.2007 that defendants also filed documents and those are marked exhibit as A, B, B9(i), C, C(i), D, E, E(i), F, G, G(i), H, H(i), I, J, K, L, M and N for the defendant. In Page 184 of the Paper Book in the affidavit -in -chief of the P.W.1 it is further revealed that the marking of documents was made but there is an endorsement "objected to" from the end of defendants. The P.W.1 has further stated in page 184 of the Paper Book "I have filed certified copy of judgement and decree dated 17.01.1949 passed by learned First Subordinate Judge at Alipore marked Exhibit 9". This document was not endorsed as 'objected to' from the end of defendant. In fact, title of the plaintiffs/appellants originates from the judgement and decree dated 17.01.1949. Therefore, it is crystal clear that neither of the parties raised any objection as to the admissibility of such documents and its marking. The legal position as observed by Hon'ble Court is not disputed, but the fact remains that neither the plaintiffs nor the defendants raised any objection as to the admissibility and marking of the documents in question. Since no objection was raised by the parties in the trial court, learned court below admitted and marked the document as exhibit. No revision has been preferred by the respondents/defendants Nos.3 and 4 against the admissibility and the marking of documents by the trial court which passed judgement on the basis of documents marked exhibit on behalf of both the plaintiffs/appellants and defendants/respondents. The question is whether the respondent Nos.3 and 4 can raise the question of marking of the documents as new contention for the first time in the appeal? In decision of Karpagathachi & Ors. vs. Nagara Thinathachi reported in AIR 1965 SC 1752 Hon'ble Apex Court has categorically observed that "new contention should not be raised for the first time in appeal". It is necessary to quote the observation of Hon'ble Apex Court.
(3.) "In the trial court, the suit was tried on the footing that the partition was oral and that the two partition lists were merely pieces of evidence of oral partition and no objection was raised with regards to their admissibility in the evidence. In the High Court, the appellants raised the contention for the first time that the two partition lists were required to be registered. The point could not be decided without further investigation into the question of fact and in the circumstances. The High Court rightly ruled that the new contention could not be raised for the first time in appeal. We think that the appellants ought not to be allowed to raise new contention". Similarly, in Samir Chandra Das vs. Bibhas Chandra Das & Ors. reported in 2010(3) ICC (SC) 519 Hon'ble Apex Court held that when in the first appeal, new plea was raised and the question was not argued before the trial court nor was it raised by way of written statement nor was it raised even in the memo of appeal before the High Court, the Appellate Court should not have allowed this question to be argued as there was no plea raised in the written statement in support of the theory of renunciation by the widow, Parulbala and the present executor Samir Chandra Das. In view of the aforesaid decision of the Hon'ble Supreme Court, the defendant/respondent Nos.3 and 4 cannot raise such a new plea in the appeal as they did not raise objection to the admissibility of the documents before the trial court and the learned trial court also relied upon those documents and marked them exhibit and passed judgement. Respondent Nos.3 and 4 did not even raise objection as to the admissibility, truthfulness or genuineness of the contents of those documents which have been marked exhibit in the Trial Court. Therefore, the argument advanced by learned advocate for the review petitioner is devoid of merit.;