1. The respondents filed an application for passing of final decree which was ordered and the revision petitioners are before this Court aggrieved by the said order.

2. Respondents 1 and 2 filed O.S No. 96 of 1971 for partition of their 71/225th shares. The first respondent herein is the widow of one Gopalakrishna Naicker and the second respondent is her daughter. One Govindasamy Naicker, who was the first defendant, had two sons. One was the afore said Gopalakrishna Naicker and the other, the first petitioner herein. He also had two daughters, who are the third respondent herein and one Sivakami Ammal, whose daughter is the fourth respondent. The fifth respondent is the purchaser of one item of the suit property. The aforesaid Govindasamy Naicker, the deceased first defendant and his two sons constituted a Joint Hindu Family. From out of the income of this joint family nucleus, the other proper ties were purchased. The husband of the first respondent died in January, 1966, leaving as his heirs as per the Hindu Succession Act, respondents 1 and 2 and his mother, Devi Ammal. The said Devi Ammal died in August, 1970, survived by her husband, the first defendant, her other son, the first petitioner herein and two daughters. After the death of her husband, the first respondent was ill-treated and it became impossible for her to live in the joint family. Respondents 1 and 2 issued a notice dated 18.9.1967 seeking partition. A reply was sent to this notice by the deceased first defendant denying the claim made by respondents 1 and 2. The suit was filed. The suit property consists of nanja lands and house sites as well as punja lands, totalling about 25 acres in Vengambakkam Village, Chengalpet Taluk. The suit was hotly contested.

3. A preliminary decree was passed as prayed for on 30.7.1974 In the year 1997, the first respondent filed I.A No. 163 of 1997 for passing of final decree.

4. This was resisted by the petitioners herein on the ground that there was a panchayat in the year 1977 and that the first respondent agreed to receive Rs. 19,000/- in cash, being the value of her share. Rs. 10,000/- was paid on the date of the panchayat itself in the presence of the panchayatdars. As per the averments in the counter, “the panchayat was not reduced into writing consequent on the mutual faith and confidence”. Five months thereafter, the petitioners claim that they paid Rs. 8,000/- to the first respondent in the presence of M/s. Sankaran, Vinayagam, Venugopal and Chandrasekaran. For the balance of Rs. 1,000/-, the first petitioner executed a promissory note in favour of the first respondent dated 8.8.1977 in the presence of Varadarajan. He paid interest for the amount due under the pro-note till 15.5.1980 The first respondent received the principal on that date, made an endorsement behind the pro-note and returned the pro-note to the first petitioner. The petitioners claim that suppressing all this, an application for final decree has been filed by respondents 1 and 2. Sufficient reason has not been given for filing the application so belatedly. This itself would prove that under the compromise, the entire matter had been settled. This in brief is the stand taken by the petitioners in their counter. The court below disbelieved the case of the panchayat and ordered the application. Against this order, the revision has been preferred.

5. Mr. M.S Subramanian, learned counsel appearing for the petitioners would submit that there is no denial by the respondents as to the fact of the panchayat. The case of the respondents that a sum of Rs. 10,000/- was received towards costs is not believable. According to the learned counsel, there could not have been any panchayat just for payment of costs. Learned counsel would further submit that it is true that there are some discrepancies between the pleadings and the oral evidence with regard to the details regarding the panchayat, whether the panchayat was reduced in writing or not, the manner of payment of the amounts as per the agreement; but, this is the natural consequence of the passage of about two decades between the date of the panchayat and the date when the witnesses gave evidence. Learned counsel also submits that once the case of the panchayat is accepted as also the receipt of Rs. 10,000/-, it is for the respondents to prove that the sum of Rs. 10,000/- was paid only towards costs and not as part payment of the sum of Rs. 19,000/- that was agreed upon. According to the value of the property, the respondents' share was arrived at with the help of the Village Administrative Officers and the compromise was a fair one.

6. Mrs. C.R Rukmani, learned counsel appearing for respondents 1 and 2 would submit that even assuming that the price of the lands would have been lower in the year 1975, there could have been no equitable panchayat if Rs. 19,000/- is all that was agreed to be paid to the respondents towards their share out of the 25 acres of nanja and punja lands. According to the learned counsel, when the pro-note was rejected by the court below as untrue and when the payment of Rs. 8,000/- is also not established by acceptable evidence, it would be apparent that the case of the petitioners is clearly false. Learned counsel submits that the first respondent, who is the brother of the de ceased husband of the first petitioner, is at tempting to deny a wife and daughter of a pre-deceased son of the family, of their lawful rights and the court below rightly exercised its jurisdiction and this does not warrant interference.

7. The scope of supervisory jurisdiction has been dealt with in various decisions. The power under Article 227 must be exercised with restraint and only for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority, especially when —

(i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction, and not for correcting mere errors.

To interfere with the impugned order under Article 227, it is not enough for the petitioners to establish that the court might, on the same materials, have passed a different order. “It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong”, to use the words in 1948 (1) All E.R 343 [Bellenden v. Satterthwaite] or when the order involves mis carriage of justice, that we can interfere.

8. With this in mind, the matter can be examined, not as an appellate court, but as a revisional one.

9. The first respondent examined her self as P.W.1 The first petitioner examined himself as R.W.1 and the cousin of the first respondent as R.W.4 to speak of the panchayat. R.W.2 and R.W.3 were examined to speak of the pro-note and the endorsement. Apart from the above oral evidence, two exhibits are important. Ex.R.1 is the pro-note dated 8.8.1977 alleged to have been executed by the petitioner and Ex.R.2 is the endorsement dated 15.5.1980 made by the first respondent on the reverse of the said pro-note, acknowledging the receipt of the amount due and its discharge. These were the materials before the court below for arriving at its decision.

10. The facts which are not in dispute are that a preliminary decree for partition was passed in the year 1974; that there was a panchayat in the year 1977; that the appeal filed against the preliminary decree in A.S No. 195 of 1974 was dismissed for default; that no Second Appeal was filed and that the preliminary decree has become final. What is disputed is the subject matter of the panchayat. According to the first respondent, only the litigation expenses were paid at the panchayat and the allotment of the shares due to her was not dealt with at the panchayat. According to the petitioner, a sum of Rs. 19,000/- was paid to the first respondent in lieu of her share and the suit claim was adjusted by payment of the said amount.

11. P.W.1, the first respondent herein, has stated in her chief-examination that she received only a sum of Rs. 10,000/- at the panchayat and too, for the litigation expenses. According to her, there was no division of shares and she did not sign any papers in this regard. Her evidence in cross-examination is as follows: P.W.1 denies the receipt of the sum of Rs. 8,000/- in cash subsequently and also the execution and discharge of the pronote for the remaining amount of Rs. 1,000/- at a later point of time.

12. R.W.1 specifically states that the panchayat was reduced in writing: . He has stated that he was told that the compromise could be filed into court after the entire sum of Rs. 19,000/- was paid. His evidence is that the valuation of the property was made in writing and also that his advocate told him that the compromise would be recorded by the court if both the advocates sign the deed but according to him, no attempt was made to do so:

R.W.4 is the only other witness who speaks of the panchayat. He also states that the panchayat was reduced in writing: The written panchayat agreement would have been the best evidence in favour of the petitioners. Yet, that document has not been produced before the court. The court below, therefore, rightly concluded that the petitioners have not produced the documentary evidence to support their case. Therefore, the conclusion of the court below cannot be said to be erroneous.

13. As regards the payment of Rs. 8,000/- five months after the panchayat, P.W.1 has denied it. A suggestion has been put to her that this amount was given in the presence of Venugopal, Vinayagam and Chandrasekaran and that it was given in the house of the Vakil's Clerk. According to R.W.1, it was given to the Vakil's Clerk, Rajagopal. However, according to R.W.2, it was given in his presence in his house and there is no mention of the three persons referred to above. In the absence of any writ ten document evidencing the receipt of Rs. 8,000/-, the court below rightly did not accept it.

14. As regards the pro-note (Ex.R.1) for Rs. 1,000/- and its subsequent discharge (Ex.R.2), P.W.1 has denied it. R.W.1 has stated that on the day of the discharge (Ex.R.2), the first respondent and her brother Vinayagam were present. R.W.3 claims to be the scribe of Ex.R.2, but there is nothing on record to prove it. He has also stated that on the date of Ex.R.2, P.W.1 and R.W.1 came to him, but there is no mention of the brother of the first respondent. Therefore, the court below was not inclined to accept that Ex.R.2 was true. There is no justification to interfere with this conclusion. It is a reasonable one on the basis of the materials available before the court be low.

15. The court below has also noted the discrepancy in the evidence on the side of the petitioners with regard to the valuation of the property. Merely because the application has been filed twenty years after the preliminary decree, the application cannot be rejected. The respondent, fighting the battle along with her daughter, has stated that she wanted to wait since they promised to give her the share due to her. This contention is believable. It was contended on the side of the petitioners that when the first respondent also accepts that there was a panchayat, it is for her to prove that it was only for payment of the litigation expenses. Once the entire matter is before the court, it is for the court to decide to what extent each party has proved his or her case. It is true that the respondents claim that the panchayat was for payment of the litigation expenses. The petitioners claimed that the panchayat was in writing. However, the written agreement of the panchayat was not produced. So, an adverse inference can be drawn against the petitioners.

16. The evidence of P.W.1 is steady and cogent. She has clearly stated that the sum of Rs. 19,000/- is too low a value for her share. The evidence on the side of the respondents is not satisfactory. Even allowing for some discrepancy owing to faulty memory due to passage of time, the statement that the panchayat was in writing is clearly false. It is contrary to the pleadings. The petitioners made no attempt to file the com promise into court. They could have prayed for a final decree in terms of the compromise, if there was one. When a party pleads apost-decree compromise, he has to prove it; otherwise, the court can proceed to exe cute the decree as it is or, as in this case, pass a final decree on the basis of the preliminary decree.

17. In (1979) 3 S.C.C 118 [Chandrasekhur Singh v. Siya Ram Singh], the scope of jurisdiction under Article 227 of the Constitution came up for the consideration of the Supreme Court. On a review of earlier decisions, the three Judge Bench summed up the position of law as under:

“…..(ii) the scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate cases, in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors; (iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the court of appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a court of appeal.”

In (2003) 6 S.C.C 641 [State v. Navjot Sandhu], it was held thus:”

…..(iii) the power must be exercised sparingly, only to keep subordinate courts and tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and also cannot be exercised “as the cloak of an appeal in disguise.

18. In (2003) 6 S.C.C 675 = 2003 3 L.W 693 [Surya Dev Rai v. Ram Chander Rai], the Supreme Court summed up its conclusions in a nutshell as hereunder:

“…..(4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

(5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby.

(6) A patent error is an error which is self-evident i.e which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

(7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross fail ure of justice or grave injustice should occasion. …..”

In (1995) 6 S.C.C 576 [Laxmikant R. Bhojwani v. Pralapsing M. Pardeshi], the Supreme Court held thus:

“The High Court, under Article 227 of the Constitution of India, cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.”

So, these are the limits of the jurisdiction under Article 227.

19. Further, the compromise entered into between the parties has not been re corded by the court. In a suit for partition, the proceedings do not reach finality until the final decree is passed. In (2000) 7 S.C.C 240 [Lakshmi Narayanan v. S.S Pandian], which, of course, arose out of a totally dif ferent factual matrix, the Supreme Court ob served as follows:

“It may be pointed out here that after the rights of the parties are crystallised on passing of a decree by a competent court, in law they are not precluded from settling their disputes outside the court. But to have the compromise recognised by a court, it has to be recorded under Rule 2 of Order 21, CPC.”

In this case, the petitioners knew that they could file the compromise into court, yet they did not. There is no justification to presume their case as true when they have not produced the alleged written compromise; on the contrary, there is every justification to disbelieve their case.

20. Above all, it is seen that substantial justice has been done. The deceased first defendant and his son, the first petitioner, have attempted to exclude the predeceased son's heirs from getting their chare. The court be low, on evaluating the evidence, came to the conclusion that Rs. 19,000/- is not a fair value for the first respondents' share: This appears to be right. The petitioners have not paid even this sum fully to the respondents. It would have been a travesty of justice, if the court below had dismissed the final decree application.

21. It was urged repeatedly on behalf of the petitioners that the long delay in filing the application raises the question whether it is bone fide and whether the panchayat's decision was not accepted by the respondents. On facts, the court below disbelieved that at the panchayat, the value of the respondents' share was paid and received. For the reasons given above, this finding of fact cannot be upset. We also have to see the aspect of “substantial justice”. Even if the de lay is unreasonable, the order is not interfered with since there is no failure of justice. In A.I.R 1960 S.C 1292 [B.C Trivedi v. M.N Nagrashna], the Supreme Court held thus:

“The main plank however of the petitioner is that this Court was bound to consider the question of jurisdiction and the question whether there was failure of justice or not was bound up with the question of jurisdiction and a decision on that question was necessary to arrive at the conclusion that there was no failure of justice. This contention also must be in our opinion be rejected, specially in the context of the narrow point which, as we have already indicated, was decided in the judgment under review. Besides, it is not unknown to law that decisions of original courts and tribunals may be allowed to stand even though there may be some doubt as to the jurisdiction of such courts or tribunals. There are provisions in the revenue laws where in case of doubt whether the civil court or the revenue court has jurisdiction, the decision of the original court is allowed to stand in certain circumstances if there has been no failure of justice. Therefore, when the judgment under review left the question of jurisdiction open on the ground that there was no failure of justice and in consequence this Court refused to exercise its jurisdiction under Article 136, it cannot be said that something was done which was unknown to law. It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this Court could have dismissed the appellant's application for Special Leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case. In the circumstances we are of the opinion that this Court was not bound to decide the question of jurisdiction on the facts and circumstances of this case when it had come to the conclusion in dealing with an appeal under Article 136 of the Constitution that there was no failure of justice.”

In this case too, there is no failure of justice.

22. One other factor is also relevant, though it was not argued. The second respondent was a minor, only six years old in the year 1971. In the year 1977, when the panchayat was held, she would still have been a minor. The parties could not have arrived at any adjustment of the minor's share without the court's permission.

23. For all these reasons, the civil revision petition is dismissed with costs, which is fixed at Rs. 9,000/-. Consequently, C.M.P No. 10131 of 2005 is closed.

VCJ/VCS