Edakkayil Chandukutty Nair v. T. Narayanan Nair

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 8TH DAY OF AUGUST 2017/17TH SRAVANA, 1939 RP.No. 818 OF 2016 IN RSA NO.591 OF 2006 (D) --------------------------------------AGAINST THE JUDGMENT DATED 12-08-2016 IN RSA NO.591/2006 of HIGH COURT OF KERALA. AGAINST THE JUDGMENT AND DECREE DATED 08-04-2005 IN AS NO. 196/2004 of DISTRICT COURT,THALASSERY. AGAINST THE JUDGMENT AND DECREE DATED 07.07.2004 IN OS NO. 296/1996 of MUNSIFF'S COURT, THALASSERY. REVIEW PETITIONER/APPELLANT: ------------------------------ EDAKKAYIL CHANDUKUTTY NAIR S/O. LATE KUNHAMBU NAIR, RESIDING AT SREYAS, KADAMBUR AMSOM DESOM, PO. EDAKKAD, KANNUR BY ADVS.SRI.S.SREEKUMAR (SENIOR ADVOCATE) SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH RESPONDENT/RESPONDENT: ------------------------- T. NARAYANAN NAIR S/O. RAMAN NAIR, BUS OWNER, RESIDING AT RAMALAYAM, CHALA EAST, KANNUR -670621 BY SRI.P.B.KRISHNAN THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.07.2017, THE COURT ON 08-08-2017 PASSED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **--------------------------------------** ## **Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 -------------------------------------Dated this the 8[th] day of August, 2017** ## **ORDER** This Court considered the second appeal filed by the review petitioner elaborately and it was dismissed. Raising a contention that there are errors apparent on the face of the judgment, the appellant has approached this Court again. 2. Heard Sri.S.Sreekumar, the learned Senior Counsel appearing for the review petitioner and Sri.P.B.Krishnan, the learned counsel appearing for the respondent. 3. Plaint A schedule property devolved on the plaintiff by virtue of Ext.A1 partition deed executed in the year 1985. Plaint B schedule property is part of plaint A schedule property. A school building is situated in plaint B schedule property. Extent of the plaint A schedule property is 56 cents. The school building, a house and a well are included in it. The property originally belonged to Edakkayil Kalliyani Amma, mother of the review petitioner. She obtained the property in the year 1929 as per Ext.A2 Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 2 document. At that time, there was no building and no school was functioning. The school building was constructed by Kalliyani Amma's father and the school was established in 1929-30. It was managed by one Chandhu Nair, who was Kalliyani Amma's father-in-law. He was managing the school for and on behalf of Kalliyani Amma. She was owner of the property, school building, house and other structures in the property. After Ext.A1 partition, review petitioner became the owner of the property and the structures thereon. Admittedly the school is an aided school to be governed by the Kerala Education Act, 1958 and the Kerala Education Rules, 1959 (shortly, “the Act and KER”). 4. Plaint B schedule property is having an extent of about 2.75 cents where the school building is situated. The respondent is a stranger and he has no right, title or possession either over plaint A schedule property or over plaint B schedule property. He had set up a right over plaint B schedule property by presenting some documents before the authorities concerned. Review petitioner was therefore constrained to file the suit for a declaration and prohibitory injunction. 5. Respondent filed a written statement contending that the petitioner has no title over the plaint B schedule property. He also denied right of the review petitioner over the building situated in plaint B schedule Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 3 property. According to him, Edakkayil Kalliyani Amma had jenm right over a large extent of property. Marangalath Appa Nair obtained an oral lease of plaint B schedule property on an yearly purappad of `1.50 and it was taken on tenancy arrangement. The property was having an east-west measurement of 26 ½ and north-south measurement of 8 ¼ carpenter koles. Appa Nair, spending his own money, constructed the school building. He became the founder manager of the school. Edakkayil Kalliyani Amma had no connection with the school. It was managed by Appa Nair. As per Ext.B1, Appa Nair sold his entire interest in the school and the premises to Puthenveettil Kunhiraman Nair and Marangalath Raman Nair. Both of them were teachers in the school. Kunhiraman Nair is the paternal uncle of the review petitioner. Raman Nair was initially managing the school. He functioned as Head Master of the school. Some time in 1943, Kunhiraman Nair became the manager and he continued so till1988. By virtue of Ext.B2 in the year 1988, he made over his entire rights in respect of the school and premises to the respondent. Raman Nair died in the year 1987. Respondent is the son of Raman Nair. By virtue of Ext.B3 release deed executed by other co-owners, the entire rights on the property devolved on the respondent. Respondent is the present owner of the property and building and he is in exclusive possession. The respondent had obtained Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 4 permission from the authorities concerned for transferring the management of the school involving a change of ownership. All the relevant documents were produced before the Director of Public Instructions (DPI). Accordingly, on 07.11.1995 permission was granted for transfer of management involving a change of ownership. For the said reasons the suit is a misconceived action and is liable to be dismissed. 6. This Court raised the substantial questions of law and considered the matter threadbare. 7. On an analysis of the evidence and considering the legal questions urged at the time of hearing, this Court found that the tenancy set up by the respondent is legally acceptable. Relying on Ext.X4 service book it was found that on 01.12.1949 Raman Nair and Kunhiraman Nair were managing the school. Further, Ext.B4 order passed by the Assistant Educational Officer, Kannur South revealed the transfer of management involving a change of ownership in respect of the school in favour of the respondent. This Court concluded that the documentary evidence probabilised the case of the respondent and hence, confirmed the concurrent decree of dismissal of the suit passed by the courts below. 8. Before dealing with merits of the grounds urged for review, I shall summarize the unchallengeable principles regarding the exercise of Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 5 power of review. It has been held in a catena of decisions that review jurisdiction is not an appellate jurisdiction in disguise. Review jurisdiction shall not be understood as an appellate power available to any court to sit in appeal over its own judgment. Axiomatic is the statement of law that the review jurisdiction is extremely limited. Unless there is a mistake apparent on the face of the record, the exercise of review jurisdiction is impermissible. Error apparent on the face of the record must be selfevident and should be visible without a detailed examination. Power of review can only be exercised for correction of a mistake, but it cannot be exercised to substitute a view already taken on the basis of evidence. Supreme Court in may decisions have heed the above principles. 9. I need only mention two decisions relevant in this context. In **Inderchand Jain v. Motilal ((2009) 14 SCC 663)** Supreme Court held thus: _“It is beyond any doubt or dispute that the review court does not sit in appeal over its own order. A rehearing of the matter is impermissible in law. It constitutes an exception to the general rule that once a judgment is signed or pronounced, it should not be altered. It is also trite that exercise of inherent jurisdiction is not_ Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 6 _invoked for reviewing any order._ _Review is not an appeal in disguise. In Lily Thomas v. Union of India ((2006) 6 SCC 224:2000 SCC (Cri) 1056:AIR 2000 SC 1650) this Court held:(SCC p.251, para 56)_ _“56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise.”_ ## 10. Apex Court in **N.Anantha Reddy v. Anshu Kathuria ((2013) 15 SCC 534)** held thus: _“........... The review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits.”_ 11. Keeping in mind the above principles, I shall examine Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 7 sustainability of the review petitioner's contentions. Main grounds urged for review are that none of the documents produced by the defendant would show that Raman Nair and Kunhiraman Nair were appointed as managers of the school, that Ext.B1 does not probabilise an oral lease in favour of Appa Nair as the expression “purappad” cannot be taken to mean rent, that on a reading of Ext.B1, no case of an oral lease could be discerned, that this Court should have found by virtue of the transactions revealed from Ext.B1 that no tenancy conferring a fixity of tenure has been spelt out in favour of the predecessor-in-title of the defendant and that the finding of this Court that the suit was not maintainable without a consequential relief is incorrect. 12. Sri.P.B.Krishnan appearing for the respondent contended that none of the above challenges can be entertained in a review petition since enquiry into those matters will tantamount to revisiting this Court's judgment by exercising an appellate jurisdiction. According to him, there is no error apparent on the face of the judgment warranting a review. 13. Sri.S.Sreekumar, learned Senior Counsel strongly contended that the oral lease set up by the respondent has not been established and Ext.B1 does not spell out such an oral lease. On a perusal of Ext.B1, it can be seen that the assignor Marangalath Appa Nair claimed to have derived Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 8 title from petitioner's mother Kalliyani Amma. It is mentioned in Ext.B1 that the property was outstanding in jenm right with kalliyani Amma. From her, Appa Nair took a demise fixing a yearly purappad of `1.50. And the term fixed was 12 years. It was an oral entrustment and there was no premium fixed or paid for the arrangement. Sri.S.Sreekumar strongly contended that title traced by Appa Nair, as revealed from Ext.B1, will not amount to a tenancy arrangement having fixity under Section 13 of the Kerala Land Reforms Act, 1963 (in short, “KLR Act”). 14. The expression “tenant” is defined in Section 2(57) of the KLR Act in the following terms: _““tenant” means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes-_ _(a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration,_ _(aa) an intermediary,_ - _(b) a kanamdar,_ - _(c) a kanam-kuzhikanamdar,_ - _(d) a kuzhikanamdar,_ - _(dd) an ottikuzhikanamdar,_ ## Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 9 _(e) a mulgenidar,_ _(f) a verumpattamdar of any description (including a customary verumpattamdar),_ _(g) the holder of a chalgeni lease,_ _(h) the holder of a kudiyiruppu,_ _(hh) a person holding lands under a_ _kuzhichuvaipum kudiyiruppum,_ _(hhh) the holder of a karaima,_ _(i) the holder of a vaidageni lease,_ _and_ _(j) a person who is deemed to be a tenant under Section 4, Section 4A, Section 5, Section 6, Section 6A, Section 6B, Section 7, Section 7A, Section 7B, Section 7C, Section 7D, Section 7E, Section 8, Section 9 or Section 10, or presumed to be a tenant under Section 11._ _**Explanation** .- For the purposes of this clause,-_ _(i) “holder of a chalgeni lease” means a lessee or sub-lessee of specific immovable property situate in the taluk of Hosdurg or Kasaragod in the district of Cannanore, who has contracted either expressly or impliedly to hold the same under a lease, whether for a specified period or not;_ Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 10 _(ii) “mulgeni” means a tenancy in perpetuity at a fixed invariable, rent created in favour of a person called mulgenidar;_ _(iii) “vaidageni lease” means a lease for a term of years”_ “Cultivating tenant” as per the definition Section 2(8) reads thus: _““cultivating tenant” means a tenant who is in actual possession of, and is entitled to cultivate, the land comprised in his holding”_ ## “Rent” defined in Section 2(49) reads as follows: _““rent” means whatever is lawfully payable in money or in kind or in both by a person permitted to have the use and occupation of any land to the person so permitting, and includes michavaram, but does not include customary dues”_ Section 13 of the KLR Act deals with the rights of tenants to fixity of tenure. It has been held in **Krishnan Nair v. Sivraman Nanbudiri (1967 KLT 78)** that if the transaction is at least in part a lease, tenant will be entitled to fixity under Section 13 of the KLR Act. 15. According to Sri.S.Sreekumar, there is no evidence, except the recitals in Ext.B1, to find the exact terms of tenancy claimed by the respondent. That apart, the recitals in Ext.B1, if at all accepted in its face value, will amount only to a licence falling much short of a tenancy Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 11 arrangement. 16. Sri.S.Sreekumar relying on **Kunhukutty Amma v. Kumaranunni Nair (1961 KLT 451)** contended that the expression “purappad” is only a synonym for “michavaram” and it cannot be disputed that “purappad” is not rent. It is therefore strongly contended by him that the terms in Ext.B1 will be highly insufficient to make out a tenancy arrangement between Kalliyani Amma and Appa Nair. 17. Refuting these contentions, Sri.P.B.Krishnan, relying on the classic text on “Malabar and Aliyasanthana Law” by Sundara Iyyer, contended that the learned author has expressed opinion that the term “purappad” means “rent”. The counsel placing reliance on **Ummerkutty Haji v. Assan Haji (1965 KLT 761)** contended that a “kanom” partakes the nature of mortgage and lease. The following observation is relevant for our purpose: _“........... A kanom partakes the nature of a mortgage and of a lease. Under it an advance is given which is charged on the property. So far as the mortgage aspect is concerned such advance - usually called the kanom amount - forms the consideration. And, so far as the lease aspect is concerned the rent - often called michavaram or_ Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 12 _purappad - is the consideration. .............”_ 18. It is pertinent to note that at the time of giving evidence in the suit, none of the parties was competent to speak about the transaction revealed through Ext.B1 document that had happened prior to 1938. Had anybody attempted to prove the transaction, it would have been highly artificial. Hence we have to go by the recitals in Ext.B1 only. Then, the question would be what was the occasion to make such a recital in a document of the year 1938? 19. On reading the recitals in Ext.B1 relating to the arrangement between Kalliyani Amma and Appa Nair, it can be seen that there was no debtor-creditor relationship existed between them. In otherwords, the recitals in Ext.B1 will characterise the transaction predominantly as a lease arrangement. Relying on **Kuttappu v. Bhargavi and others (1976 KLT 737)** Sri.P.B.Krishnan contended that the Supreme Court while resolving a question whether a document was a lease or mortgage, the determinative factors have been clearly laid down. It has been held by the apex Court that when in a document mixed elements of lease and mortgage are present, predominant intention of the parties has to be found out from the recitals. Referring to the recitals in the document placed before the Supreme Court it was held after analysing the terms that the document was Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 13 in the nature of a lease. In this case also, the statement in Ext.B1 discloses predominantly the characteristics of a lease. Learned counsel for the respondent argued that in the above background the expression “purappad” in Ext.B1 can only be presumed to be rent and not any customary due. 20. It is further contended by Sri.P.B.Krishnan that even if the case of licence set up by the review petitioner is accepted, still the respondent is entitled to claim right by virtue of Section 10(ii) of the KLR Act which says that notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, the licensee shall be deemed to be a tenant. Relying on Section 12 of the Act, it has been argued that notwithstanding anything contained in the Indian Evidence Act or in any other law for the time being in force, or in any judgment, decree or order of court any person interested in any land may prove that a transaction, purporting to be a mortgage, is in substance a transaction by way of verumpattam or other lease under which the transferee is entitled to fixity of tenure in accordance with the provisions of Section 13 of the KLR Act. It is the case of the respondent that apart from Ext.B1, the fact that he has purchased jenm right through the Land Tribunal after complying with all the formalities also will have to be given due Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 14 weight. From the totality of submissions, I find no merit in the contention of the review petitioner that the recitals in Ext.B1 evidencing a transaction between Kalliyani Amma and Appa Nair did not amount to a tenancy arrangement. Hence this contention of the review petitioner is rejected. 21. Another contention raised by Sri.S.Sreekumar is that change of management of the school in favour of the respondent cannot be taken as a major event conferring right on the respondent because in Ext.B4 itself it has been clarified that the decision will be subject to the judgment of a civil court. He further contended that as per Ext.B2 release deed it can be seen that the extent of property mentioned in Ext.B1 has been enhanced to 7.5 cents without any justification. It is also argued that Exts.B2 and B3 contained no whisper of an oral lease in favour of Appa Nair. Exts.B2 and B3 are comparatively of recent origin and whatever right that Appa Nair got as per Ext.B1 alone could be transferred. Regarding the claim for a greater extent than that is shown in Ext.B1, the respondent has no definite case. Whether the respondent is entitled to 7.5 cents or the land as described in Ext.B1 is not the question mooted for adjudication. The question is whether the review petitioner could claim a declaration that the plaint B schedule and the school building thereon belonged to him and if so, a consequential relief of injunction in respect plaint B schedule property could be granted? Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 15 22. Another contention deserving attention is regarding the frame of the suit. It has been contended by Sri.P.B.Krishnan that the declaration sought for is not maintainable without a proper consequential relief. Documents produced would emphatically show that the plaint B schedule is in the possession of the respondent. It is further revealed from the documents that the respondent is presently managing the school with the approval of the authorities. In this background, this Court considered maintainability of the suit for declaration with a consequential relief of temporary injunction. Sri.P.B.Krishnan referring to various provisions in the Act and KER contended that no order of injunction can be passed in respect of an aided school functioning under the statute. Therefore, the argument raised on the side of the respondent that suit should have been one for declaration and recovery of possession on the strength of title is legally proper and the review petitioner is unable to show any valid reason for not claiming recovery of possession. This Court, considering that aspect, found that the frame of the suit itself is not correct. Contention raised by Sri.S.Sreekumar that the plaintiff (review petitioner) has not admitted that the defendant (respondent) is in possession of the property and therefore no recovery of possession is required cannot be accepted in the light of the overwhelming evidence in this case. Review Petition No.818 of 2016 in R.S.A.No.591 of 2006 16 Considering the facts and circumstances established by evidence and the arguments advanced, I find no reason to review the judgment passed by this Court as there is no error apparent on the face of the record. Hence the review petition is dismissed. ## **A. HARIPRASAD, JUDGE.** **cks**