## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH**
**WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933**
**RP.No. 977 of 2010(O)**
**-------------------------------AGAINST THE JUDGMENT IN WPC.8556/2010 DATED 09/09/2010**
## **REVIEW PETITIONER(S):**
**----------------------------------**
**1. BIBIN JACOB, AGED 41 YEARS, S/O.DR.JACOB ZACHARIAH, RESIDING AT KOTTAKKA VEEDU,CHERUVACKAL MURI,CHERUVACKAL (V) THIRUVANANTHAPURAM DISTRICT**
**2. FEBI J.JACOB, AGED 46 YEARS, S/O.A.JACOB JOHN, RESIDING AT T C 2/1129, PARUTHICKAL VEEDU,MADATHUVILAKAM MURI, PATTOM VILLAGE, THIRUVANANTHAPURAM DISTRICT**
**3. THOMAS VARGHESE, AGED 46 YEARS S/O.P.O.VARGHESE, RESIDING AT CHRISANTH',TC 12/2538,KUMARAPURAM,PATTOM VILLAGE THIRUVANANTHAPURAM**
**4. THOMAS G.MARUTHETHU, AGED 35 YEARS, S/O.MARUTHETHU THOMAS, RESIDING AT MARUTHETHU VEEDU,KUMBAZHA MURI,PATHANAMTHITTA VILLAGE KOZHENCHERRY TALUK,PATHANAMTHITTA DISTRICT.**
**5. SIBI THOMAS,AGED 33 YEARS, W/O.THOMAS G.MARUTHETHU, MERCY BUNGALOW, PRAMADOM MURI, PRAMADOM VILLAGE, PATHANAMTHITTA DISTRICT.**
**BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SMT.MINI GOPINATH SRI.D.KISHORE**
**RESPONDENT(S):**
**-------------------------**
## **1. HARRISON MALAYALAM LTD**
**P.B.NO.502,BRISTOW ROAD,WILLINGDON ISLAND, KOCHI-682003 REPRESENTING BY ITS MANAGING DIRECTOR**
**2. MANAGING DIRECTOR, HARRISONS MALAYALAM LTD P.B.NO.502 BRISTOW ROAD, WILLINGTON ISLAND, KOCHI-682003**
## **3. SIJU THOMAS, AGED 42 YEARS,**
**S/O.V.JACOB JOHN, RESIDING AT R.C.2/1129 PARUTHICKAL VEEDU, MADATHUVILAKAM MURI PATTOM VILLAGE-695004 THIRUVANANTHAPURAM DISTRICT REPRESENTED BY ITS POWER OF ATTORNEY HOLDER THE 2ND PLAINTIFF**
**THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 10/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
## **THOMAS P.JOSEPH, J.**
**==================================== R.P. No.977 of 2010 in W.P(C) No.8556 of 2010 ==================================== Dated this the 10[th] day of August, 2011**
## **O R D E R**
Respondents 1, 2 and 4 to 6 in W.P(C) No.8556 of 2010 has filed this petition for review of judgment dated September 9, 2010 whereby this Court set aside Exts.P7 and P8, orders passed by the learned Munsiff, Pathanamthitta on Exts.P5 and P6, applications, allowed the said applications and directed the learned Munsiff to frame additional issue as prayed for in Ext.P5 and refer the question to the Land Tribunal for a finding on the issue.
2. The issue arose in a suit – O.S. No.475 of 2007 of the court of learned Munsiff, Pathanamthitta. That was a suit filed by the review petitioners and others for a decree for prohibitory injunction to restrain the first respondent in the petition for review from alienating or encumbering the suit properties claiming that they have a share in the suit properties. In the suit the first respondent raised a contention that it is a tenant entitled to the protection of the Kerala Land Reforms Act (for short, “the Act”)
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since it was a lease of land granted to it for cultivation of rubber and other crops. There was a request to the learned Munsiff to frame an issue on that question and refer the same to the Land Tribunal. Learned Munsiff found that no question of tenancy is involved and no question of reference therefore arose. That order was challenged in W.P(C) No.8556 of 2010. This Court after hearing the parties, by judgment dated September 09, 2010 as aforesaid set aside Exts.P7 and P8, orders passed by the learned Munsiff and issued directions as first above mentioned. That judgment is sought to be reviewed in this proceeding.
3. Learned Senior Advocate appearing for petitioners contended that this Court happened to enter a finding that prima facie, first respondent is entitled to the protection of Sec.3(1)(viii) of the Act since it was a lease of land exceeding 30 acres in extent, based on the recitals in the Malayalam version of the indenture executed between the lessor and the lessee, no such recitals are found in the English version which is the one executed between the lessor and lessee. It is pointed out that this Court has entered a finding that first respondent is entitled to the exemption of Sec.3(1)(viii) of the Act which ought to have
## R.P. No.977 of 2010 in **W.P(C) No.8556 of 2010**
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been decided by the Land Tribunal. Learned Senior Advocate has placed reliance on the observations in paragraph 5 of the decision
in **Lissy v. Kuttan** (1976 KLT 571). It is pointed out that though on certain other points that decision was overruled in **Kesava Bhat v. Subraya Bhat** (1979 KLT6 766) the observations made in paragraph 5 of **Lissy v. Kuttan** stands good even now and hence it was not for this Court to decide as to whether first respondent is entitled to the exemption as above stated – that being a matter which was to be decided by the Land Tribunal if at all the matter was to be referred to the Land Tribunal. A further contention raised by learned Senior Advocate is that there is an error apparent on the face of the record in that this Court, rather than setting aside the order of the trial court which lack details and remitting the matter to the trial court for fresh decision interfered under Article 227 of the Constitution and passed a fresh order directing learned Munsiff to refer the issue regarding fixity of tenure to the Land Tribunal for a decision. On these grounds it is prayed that petitioners are entitled to a review of the judgment.
4. Learned Senior Advocate for respondents 1 and 2 in
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the review petition contended that none of the grounds urged afford a ground for review under Order XLVII Rule 1 of the Code of Civil Procedure (for short, “the Code”) and if at all aggrieved, remedy of petitioners is to challenge the judgment as provided under the law. It is contended that in a review petition under Order XLVII Rule 1 of the Code the court is not required to go into the details at depth, what is required to be ascertained is whether there is any error apparent on the face of record or any other sufficient reason which has to be read as _ejusdem generis_ . Whatever observations this Court has made in the judgment sought to be reviewed is only a prima facie finding for the purpose of referring the issue to the Land Tribunal and not a finding that first respondent is entitled to fixity of tenure. The observations made in the judgment is only for the purpose of referring the issue to the Land Tribunal. It is also pointed out that even in the English version of indenture there is sufficient recitals which are sufficient to refer the issue regarding fixity of tenure to the Land Tribunal.
5. At the time the Writ Petition was argued learned counsel for petitioners had addressed argument that since the
## R.P. No.977 of 2010 in **W.P(C) No.8556 of 2010**
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suit is merely for prohibitory injunction no question of reference to the land Tribunal was involved. This Court observed that since the prayer in the suit is to restrain the first respondent from alienating or encumbering the property it is not merely a suit for injunction based on possession but issue regarding title and hence the question of fixity of tenure is relevant for a decision. This Court after referring to the Malayalam version of the indenture observed that prima facie it appeared that it is a lease of land for cultivation of crops including rubber and hence the issue regarding fixity of tenure raised by the first respondent is required to be referred to the Land Tribunal for a finding. Now question is whether the said judgment required review as argued by the learned Senior Advocate.
6. My attention is drawn to the English version of the indenture where it is stated,
“all those several pieces, parcels, plots or tracts of lands, hereditaments, premises and plantation more particularly mentioned and described in the schedule herein written and
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containing on the whole by ad-measurement (831) acres........”
It is pointed out that similar description is given in the schedule of English version of the indenture as well. According to the learned counsel the above would indicate that what was given to the first respondent was only lease of plantation and not lease of land for plantation.
7. It is appropriate to refer to the relevant clause that the learned Senior Advocate has invited my attention and referred supra. It is not merely plantation alone which is referred but several pieces, parcel, plots or tracts of land, hereditaments, premises and plantations. Therefore the question whether what was leased to the first respondent is land or was plantation requires decision by the appropriate forum which having regarding to the tenor of Sec.125 of the Act is the Land Tribunal. I must also refer to the recitals in the English version of indenture that permission is given to the first respondent for cultivation of rubber plants. Therefore, it is not as if this Court has committed an apparent error on the face of the record in holding that prima
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facie it appears that it is a lease of land for cultivation so that invoking the grounds under Order XLVII or Order I of the Code a review of the judgment is required.
8. So far as the contention raised by learned Senior Advocate that this Court was not correct in passing a fresh order, rather, it should have set aside the order of the trial court and remitted the matter to the trial court is concerned, I am inclined to think that it is not a matter within the scope of review under Order XLVII Rule 1 of the Code. For, though Learned Senior Advocate placed reliance on the expression “for other sufficient reason” occurring in Order XLVII, Rule 1, that in my view must be read as _ejusdem generis_ . In that view of the matter I am not inclined to think that the said argument of learned Advocate is available in the matter of review.
9. Lastly it is pointed out that the observations in paragraphs 2 and 3 of the judgment sought to be reviewed would appear as if this Court found that first respondent is entitled to fixity of tenure as claimed by him. It is contended that the Land Tribunal might be carried away by the said observations made by this Court. I make it clear that I have not entered into any finding
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as to whether first respondent is entitled to fixity of tenure or made any observation indicating that; whatever observation contained in the judgment under challenge is only a prima facie satisfaction for referring the question of fixity of tenure raised by the respondents to the Land Tribunal. I make it further clear that whatever observations made in the judgment sought to be reviewed will be confined to disposal of the Writ Petition and that the question whether first respondent is entitled to fixity of tenure is a matter which the Land Tribunal has to decide. In deciding the question whether first respondent is entitled to fixity of tenure necessarily the Land Tribunal will have to go into the question whether it is a lease of land or lease of plantation and enter appropriate finding in that regard.
Review Petition is disposed of with the above observations.
## **THOMAS P. JOSEPH, JUDGE.**
vsv
