- (1.) THIS is an application for review by defendants respondents Jaliram and others of a judgment and decree dated 24th January, 1950, passed by a Bench of two Judges of this Court, and has been placed before us for disposal as both of them are no longer attached to this Court.
(2.) THE facts leading up to this application may briefly be described as follows. The parties are neighbours in the town of Rajgarh. The dispute relates to Chowk alleged to be lying in front of the house of the plaintiff. The plaintiff's case was that he was, an owner, in possession of the Chowk in question by virtue of patta granted to his ancestors by the former State of Bikaner. The plaintiff further alleged that he and his ancestors had been is possession of the Chowk for the last 10 years or so, and that they used it for various purposes, such as sitting, bathing, playing of children and easing, through-out that period, and that the windows and doors of their house and a shop opened in this Chowk. A dispute arose when the defendants who were owners of a shop adjacent to the plaintiff's house towards the east, opened a door in the wall (CD), vide map Ex. P-2, and according to the plaintiff disturbed his exclusive possession of the Chowk. The plaintiff, therefore, instituted a suit against the defendants in the court of the District Judge, Churu, praying for a declaration as to his title in respect of the Chowk, and for a perpetual injunction enjoining the defendants to dose the door opened by them therein and restraining them from perpetrating any act in future so as to interfere with his exclusive possession of the Chowk in any manner whatsoever. The contesting defendants Nos. 1 to 3 traversed all the allegations of the plaintiff, denied that there was any Chowk in front of the plaintiff's house, as alleged by him, or that it belonged to the plaintiff or his ancestors; and contended that the open space was part of a street and was government property to which the plaintiff could not possibly lay any title or claim. They admitted, however, that they had enlarged a smaller opening existing from before in the wall (CD) into a door and claimed that they were entitled to do so as the wall (CD) belonged to them, and as the land in front thereof was government land. The trial court dismissed the plaintiff's suit whereupon the plaintiff preferred an appeal which was heard by a Bench of two Judges of this Court which then used to sit at Bikaner. The learned Judges who disposed of the appeal concurred in the finding of the trial court that the plaintiff had no title, by grant or sale, whatsoever to the Chowk in dispute as also in the finding that he could not claim any title on account of adverse possession, as the law of limitation in force did not permit the acquisition of any such title against the State. The learned Judges then proceeded to consider what they thought was the alternative case of the plaintiff, viz, that he had acquired a rights of undisturbed and peaceful enjoyment of the open land in dispute by long user, and came to the conclusion that the plaintiff, by exclusive user, had acquired a right of undisturbed and peaceful enjoyment of this open land, and in that view, they set aside the decree of the lower court and directed that the door newly opened by the defendants be closed, and also awarded a decree permanently restraining the defendants from opening any door or window in their property on the open land in dispute. Against the above judgment and decree, the defendants-respondents have preferred the present review application. It is contended before us by learned counsel for the applicants that the decree of this Court under review was vitiated on account of a mistake or error apparent on the face of the record, and he put forward his case in this manner. Learned counsel urged that so far as the title to the land in dispute is concerned, the Bench had held that the plaintiff had completely failed to prove his title in regard to it. So far, the finding of the learned Judges was unexceptionable; but they did not stop there and further found that the plaintiff had acquired a right of easement in respect of the land in question by long and exclusive user, and, therefore, they proceeded to award a decree for injunction in his favour enjoining the closure of the existing door and restraining the opening of any similar door, window or aperture in future. Learned counsel strenuously argued that this conclusion of the learned Judges was manifestly erroneous because according to law in force in the former State of Bikaner, the acquisition of the right of easement by anybody in respect of government land was, by statute, forbidden. In support of his argument, learned counsel cited sec. 26 of the Law of Limitation then in force in the former State of Bikaner. This section reads as follows: "nothing in this section shall entitle any person whatsoever to claim a right under sub-sec. (7) in respect of the property belong to Government. " It is patent from a bare perusal of this section that the legislature of that State did not permit the acquisition of any right of easement in relation to government land. There was a concurrent finding of fact in this case that the land in question was government land, and learned counsel argued, therefore, that the Bench which dealt with the case had completely missed the relevant law, and in doing so fell into an error apparent on the face of the record in the circumstances of the present case. We have given our most anxious and careful consideration to this argument and find that there is considerable force in it. Learned counsel for the opposite party vehemently argued that the error, if at all, was an error in regard to an exposition of the law relevant to the case and that even though we might have been justified in taking a different view of the case, if we sat as an appellate court, we would not be justified in interfering with the judgment and decree in question as a Court of review. See Birendra Bikram vs. Bajrang Bahadur (1) (A. I. R. 1943 Ludh. 136.) and Laxman Anandrao vs. Ramchandra Wasudeo (2) (A. I. R. 1938 Nag. 145. ). Learned counsel for the opposite party also urged that the particular argument which was placed before us on behalf of the applicants, had been urged before the Bench, but for some reason or other, into which we need not go at all, they were not persuaded to give effect to that view. We should like to make a two-fold observation regarding this contention. In the first place, although the Bench did mention on page 8 of their judgment that the learned counsel for the respondents argued before them that the land in dispute had been found not to belong to the plaintiff but to the Government or the Municipality and that, such being the case, every one having a house adjoining it had a right to its enjoyment and use, and that no one could acquire, to the exclusion of the owners of the adjoining tenements any prescriptive right on open land belonging to the State, we do not find that they gave any finding whatsoever regarding the contention. The learned Judges, having mentioned the contention of learned counsel for the then respondents, proceeded to consider certain rulings cited before them by the plaintiff who was the appellant, and seem to have been impressed by the argument that the plaintiff had a possessory title to the Chowk in dispute, and the defendants should not be allowed to interfere with his possession and enjoyment of the land unless they could prove a better title and the learned Judges have said that to them the argument appeared to be not without force. It is obvious, therefore, that they did not consider the vital contention raised on behalf of the respondents, the present petitioners. In the second place, it appears to us that there was a very clear and unmistakable provision of statute law viz. , Sec. 26 of the Limitation Act which we have already set out above, and the learned Judges did not direct their attention to that important provision which clearly governed the case before them. We have therefore, arrived at the conclusion that this was not the case in which it could be legitimately argued that there was a wrong exposition of the law; but on the other hand it was clearly a case where the Judges completely ignored, for some reason or other, it is not apparent to us, the relevant law. We may also point out that the law such as applies to the case is so manifest and patent that it admits of no doubt or dispute of any kind whatsoever. In these circumstances, we are constrained to come to the conclusion that there is an error apparent on the face of the record in this case within the meaning of O. XLVII, r. 1 of the Code of Civil Procedure. It is indeed well established, in our opinion, that an error within the meaning of O. XLVII, r. 1 G. P. G. need not be limited to one of fact but it may be an error of law also. But the error must be such that it must not require a research and must not be one relating to which it may be possible to hold more opinions than one. Where, an error, such as we have described above, is to be found, we are of opinion that it would meet the requirements of O. XLVII, r. 1 C. P. C. and would be more than an error which merely relates to exposition of law. We may cite a few cases in support of the view taken by us. In Kamta Chaudhary vs. Lal Ghandra (1) (A. I. R. 1945 All. 284.) it was held that the failure of a learned Judge of the Court of Small Causes to over-look a particular section of the Agriculturists' Relief Act defining the term 'agriculturist' was an obvious error or mistake of law which could be corrected in review. Similarly, in Jagarao Annaji vs. Balwant Tukaram (2) (A. I. R. 1938 Nag. 221.) which was a case decided by the same Judges who decided Laxman Anandrao vs. Ramchandra Wasudeo (3) (A. I. R. 1938 Nag. 145.), it was said that "it may be possible to argue that a review lies if a positive rule of law is ignored. " We have no doubt that in this case sec. 28 of the Limitation Act was wholly ignored. In Debi Sahai vs. Basheshar Lal (4) (A. I. R. 1928 Lah. 919.), it was held that the failure of the court to apply the law of limitation to the facts found was an error apparent on the face of the record, and could be made a ground for review. Another case to which we may refer is Ram Baksh vs. Rajeshwari Kanwar (5) (A. I. R. 1948 All. 213. ). In that case, a judgment-debtor appealed against an order of ejectment passed against him in execution of a decree for arrears of rent. The District Judge dismissed the appeal as time barred but at the same passed an order for the refund of the amount deposited by the judgment-debtor which order was manifestly wrong according to sec. 79 of the Agra Tenancy Act, 1926. It was held that the error committed by the District Judge in order in the refund was an error apparent on the face of the decree and accordingly a good ground for review. Kehar Singh vs. Attar Singh (6) (A. I. R. 1944 Lah. 442.) is another case to which we may refer. In that case the appellate court dismissed the appeal under the impression that the appeal was incompetent to the absence of a certificate under sec. 41 sub-sec. (3), Punjab Courts Act as the appeal involved the existence of a custom. By an amending Act, however, no certificate was really necessary at the time the appeal was dismissed. Under these circumstances, it was held that there was a mistake or error apparent on the face of the record inasmuch as the appellate court had clearly overlooked the provisions of the amending Act. A review of the case law clearly leads us to the conclusion that where the mistake or error of law is not merely one in the exposition of law relevant to a case but is a more radical error and amounts to completely ignoring a positive rule of law, and the error is so manifest or patent that it admits of no doubt or dispute, such an error of law is one on the face of the record and is sufficient to satisfy the conditions of O. XLVII, r. 1 C. P. C. We are of opinion that the error in the case before us is an error of this kind. If the attention of the learned Judges had been directed to sec. 26 of the Limitation Act of the former State of Bikaner, or assuming that their attention had been directed to it, if they had applied their minds to that mandatory provision of statute law and discussed the contention raised before them, we have no doubt that they would not have fallen into the error into which they did. We are accordingly of the opinion that the error in the present case is_an error apparent on the face of the record and satisfies the conditions of O. XLVII, r. 1 C. P. C. Before we conclude, we think it necessary to point out that the view taken by us, in no way, runs counter to the principle laid down by their Lordships of the Privy Council in Chhaju Ram's case (1) (A. I. R. 1922 P. C. 112 ). It must be borne in mind that their Lordships were construing the words "any other sufficient reason" occurring in O. XLVII, r. 1, C. P. C. , as the other two alternatives, viz. , mistake or error apparent on the face of the record and discovery of new material, did not apply to the facts of that case, Chhaju Ram's case, therefore, cannot properly be taken as laying down the law regarding the meaning of "mistake or error apparent on the face of the record. " All that their Lordships held eventually was that the Chief Court in accepting the review application on the ground of incorrect exposition of law did not act rightly. It was further held that as the first two alternative contemplated for a review under O. XLVII, r. 1 C. P. C. did not apply to the case before them, it could only be considered under the head "for any other sufficient reason," and that those words should be read as meaning 'a reason sufficient on grounds analogous to the two conditions already specified. ' As we have already pointed out above, however, the present case, in our opinion, is not a case under the head "for any other sufficient reason" but is one of "error or mistake apparent on the face of the record", and the error made by the Bench in this case clearly falls within that clause and is not a mere error in the exposition of law. The result is that we grant this application for review. The appeal will now be set down for hearing in due course. . ;