Laxman Kappacheri v. Padmini, V. Kamala, Sarojini, Prasan­na and Pushpavalli

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944** ## **RP NO. 346 OF 2022** **AGAINST THE ORDER/JUDGMENT IN RSA 853/2021 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/APPELLANT:** **LAXMAN KAPPACHERI, AGED 68 YEARS S/O.KUNHAPPA NAIR, PUSHPA NIVAS, PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK, KANNUR DISTRICT, PIN-670 102. BY ADVS. P.B.KRISHNAN P.B.SUBRAMANYAN SABU GEORGE MANU VYASAN PETER** ## **RESPONDENTS/RESPONDENTS:** |**1**|**PADMINI,**| |---|---| ||**AGED 78 YEARS**| ||**D/O.KUNHAPPA NAIR, PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK,**| ||**KANNUR DISTRICT, PIN-670 102.**| |**2**|**V.KAMALA,**| ||**AGED 68 YEARS**| ||**W/O.NARAYANAN, PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK,**| ||**KANNUR DISTRICT, PIN-670 102.**| |**3**|**SAROJINI,**| ||**AGED 63 YEARS**| ||**W/O.VIJAYAN, PARAL P.O., KODIYERI AMSOM, THALASSERI TALUK, KANNUR**| ||**DISTRICT, PIN-670 102.**| |**4**|**PRASANNA,**| ||**AGED 58 YEARS**| ||**W/O.VALSAN, NEW NO.32, OLD NO.50, P.V.KOL STREET, MAILAPOOR,**| ||**CHENNAI, TAMILNADU, PIN-600 004.**| |**5**|**PUSHPAVLLI,**| ||**AGED 55 YEARS**| ||**W/O.BALAKRISHNAN, UPPANNDAM, CHANDROTH PARAMBA, P.O.ERUVETTY,**| ||**KANNUR DISTRICT, PIN-670 581.**| **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08.11.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P.No.346/2022 IN R.S.A.No.853 of 2021 **2** ## **O R D E R** Review petition filed under Order 47 Rule 1 r/w Section 114 of the Code of Civil Procedure, 1908 against the judgment in R.S.A.No.853/2021 dated 18.01.2022. 2. Heard both sides. 3. Petitioner is the appellant in R.S.A and defendant No.2 in O.S.No.244/2010 on the file of Subordinate Judge's Court, Thalassery. (Parties would be referred as per their status in the trial court). The suit was one for partition. A preliminary decree for partition was passed and subsequently F.D.I.A.No.1000/2015 was filed for passing final decree for partition. The Subordinate Judge, Thalassery passed the final decree and allotted house in the schedule property to the share of petitioner/appellant. It is found by the trial court that as per the submissions of the learned counsel for the petitioner Nos.1, 3 to 5 there seems to have no objection to the commissioner's report and plan and having been satisfied that the commissioner as per the report in Exts.C1 to C3 and Ext.C6 has partitioned the property in terms of preliminary decree and the learned counsel for the petitioner R.P.No.346/2022 IN R.S.A.No.853 of 2021 **3** as well as the respondents submitted to draw final decree in accordance with Ext.C5 share-list the learned Subordinate Judge allotted the share as per Ext.C5 share-list. As per which, plot Nos.B, B1 and B2 including the house and well therein shown in Ext.C2 plan and plot No.B in Ext.C3 plan is allotted to the share of the petitioner/appellant/defendant No.2. But, against the final decree, the petitioner filed appeal as A.S.No.15/2019 before the Additional District Court-IV, Thalassery and the first appellate court by the impugned judgment found that allotments made in the final decree by the trial court is seems to be just, proper and equitable. The contention of the petitioner/appellant about the direction to pay the owelty since the house was allotted to his share was also dealt with and it has been found that the direction to pay owelty due to the allotment of the house to the share of the petitioner/appellant/2[nd] defendant is reasonable and cannot be said as unjust or illegal. Aggrieved by the same, the petitioner approached this Court in R.S.A.No.853/2021 and this Court as per the judgment dated 18.01.2022 dismissed the R.S.A finding that there is no substantial question of law emerging for consideration and hence there is no reason to admit the appeal. Against which, this review petition has been filed by the R.P.No.346/2022 IN R.S.A.No.853 of 2021 **4** petitioner/appellant/2[nd] defendant. 4. According to the learned counsel, though there was request for allotment of the house to the share of the petitioner, there was no such agreement or undertaking to pay owelty to the other sharers. It is also his contention that the petitioner has got a specific contention that he had renovated the house by spending huge amount and that aspect has not been considered by any of the courts. 5. In the above context, learned counsel for the respondents would contend that there was no such reservation with respect to the house to the petitioner/2[nd] defendant in the preliminary decree. According to him, preliminary decree was passed without any reservation to allot the house to the share of the petitioner in view of the alleged expenditure met by him to renovate the house. 6. On going through the final decree passed by the learned Sub Judge, it could be seen that there is no discussion with regard to the contention of the petitioner/appellant/2[nd] defendant regarding the expenses met for construction of the house. On the other hand what could be gathered is that when the matter came up for hearing petitioners 1, 3 to 5 agreed to R.P.No.346/2022 IN R.S.A.No.853 of 2021 **5** allot the property where the house situates to the share of petitioner/appellant/defendant No.2. But there is no whisper with respect to exemption from payment of owelty or that house is allotted to the share of the petitioner/2[nd] defendant as a reservation for the expenses which he alleged to have met for reconstructing the house. Before the first appellate court the appellant contended about the objection filed to the commissioner's report and the evidence adduced by him and documents produced from his side. But the first appellate court taken into account the final decree passed by the trial court in view of the fact that it has been passed on consent of all the parties. So reliance was placed on Madhavikutty Amma v. Thatha [ILR 2015 (1) Ker. 672] to find that final decree passed by recording the statement of parties that they have no objection to the final decree in accordance with the report of the commissioner and such a decree is a consent decree and appeal challenging the final decree is not maintainable. So taking into account the fact that the petitioner/appellant has consented to pass a decree as per the commissioner's report the first appellate court was not inclined to allow I.A.No.2/2021 filed for remitting the commissioner's report. This Court also dismissed R.P.No.346/2022 IN R.S.A.No.853 of 2021 **6** the appeal after hearing both sides and this Court also taken note of the fact that parties to the final decree agreed to allot the residential house to the share of the petitioner/appellant .So from the submissions made by the respective counsel the trial court drawn an inference that parties have no objection to Exts.C1 to C3 and C6 and accepting the same court below allotted the shares and residential house was allotted to the share of the petitioner/appellant/2[nd] defendant. So, on evaluating the totality of the facts and circumstances, this Court dismissed the Second Appeal finding that there is no substantial question of law is involved. 7. Scope of power of review under Order 47 Rule 1 of the Code of Civil Procedure, 1908 (in short, Code) is no more res integra. 8. In Kamlesh Verma v. Mayawati and Others (2013) 8 SCC 320, it was held as follows: “14. Review of the earlier order cannot be done unless the court is satisfied that material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.” In paragraphs 17 to 19 it was held as follows: R.P.No.346/2022 IN R.S.A.No.853 of 2021 **7** “17. In a review petition, it is not open to the Court to reappreciate the evidence and reach a different conclusion, even if that is possible. Conclusion arrived at on appreciation of evidence cannot be assailed in a review petition unless it is shown that there is an error apparent on the face of the record or for some reason akin thereto. 18. Review is not rehearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court......... 19. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same.............” 9. In Smt.Meera Bhanga v. Smt.Nirmala Kumari Choudhary : (1995) 1 SCC 170 : AIR 1995 SC 455 : 1995 KHC 737 a two Judge Bench of Apex Court held that review of proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of Code of Civil Procedure. 10. In view of the facts and circumstances, I do not find any error apparent on the face of record for entertaining the Review Petition. Based on the above discussion, it can safely be concluded that the review petition is found to be devoid of any R.P.No.346/2022 IN R.S.A.No.853 of 2021 **8** ## merit and hence dismissed. Sd/- **M.R.ANITHA** SHG **JUDGE**