Manikantan v. Chathunni

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 29TH DAY OF AUGUST 2013/7TH BHADRA, 1935** ## **RP.No. 652 of 2013 (F) IN RSA.268/2013** **---------------------------------------** **AGAINST THE JUDGMENT IN RSA 268/2013 of HIGH COURT OF KERALA DATED 24-5-2013** ## **REVIEW PETITIONERS/APPELLANTS/APPELLANTS/DEFENDANTS:** **---------------------------------------------------------------------------------------------** **1. MANIKANTAN V. AGED 45 YEARS S/O LATE VELU, THOTTAKKARA, THENARI P.O. PALAKKAD TALUK AND DISTRICT.** **2. RAJANI S. AGED 35 YEARS** - **W/O MANIKANTAN V., THOTTAKKARA, THENARI P.O. PALAKKAD TALUK AND DISTRICT.** **BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDNET/RESPONDNET/RESPONDENT/PLAINTIFF:** **-------------------------------------------------------------------------------** **CHATHUNNI, AGED 65 YEARS S/O THOTTAKKARAYIL RAMAN, KALAMPUZHA HOUSE, MELAMURI PALLIPURAM P.O., PALAKKAD TALUK AND DISTRICT.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 29-08-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ R.P. No. 652 of 2013 in R.S.A. No.268 of 2013 -----------------------------------------Dated this the 29[th] day of August, 2013 ## **O R D E R** This Review Petition is filed by the appellants in the Second Appeal mentioned above. They are the defendants in a suit for mandatory injunction. The suit was decreed by the trial Court. The appeal filed by them was dismissed. In the Second Appeal it was argued before this Court that a further opportunity be given to the appellants to adduce evidence in the matter. It was noticed that the defendants were once set ex parte and an ex parte decree was passed. Thereafter, they filed application to set aside the ex parte decree. That petition was allowed and again the suit was listed for trial. 2. The plaintiff was examined. He was cross-examined by the counsel appearing for the defendants. But no ## **R.P. No.652/2013 in R.S.A. No.268/2013** ## **-2-** evidence was adduced on the side of the defendants. After considering the evidence on record, the trial Court granted the decree. The appeal filed by them was dismissed by the appellate court since there was unreasonable delay in filing the appeal. 3. The main argument that has been advanced by the learned counsel for the review petitioner is that the property, in fact, belonged to the joint family and so the first appellant had right by birth in the said property. According to him, he is entitled to have ¼ share in the property. 5. In the Second Appeal it was found by this Court that the plaint schedule property originally belonged to the father of the plaintiff and three brothers Pangan, Vella and Velu. Pangan, Vella and Velu executed Ext.A1 surrender deed dated 13-11-1970 in favour of the plaintiff. It was noticed that there is nothing in Ext.A1 to indicate that the ## **R.P. No.652/2013 in R.S.A. No.268/2013** ## **-3-** property was a joint family property. The purchase certificate, in respect of the said property, was obtained as per Ext.A2. The first appellant in the Second Appeal is the son of Velu. Velu was one of the three executants of Ext.A1. There is nothing in Ext.A1 to indicate that the plaint schedule property belonged to the joint family. It was observed by this Court that the age of the first appellant was 35 years and so he might have been born, somewhere in 1975 only. Since Ext.A1 was executed by the first appellant's father about five years prior to the death of the first appellant, it is unreasonable to hold that the first appellant had a right by birth in the said property. Now the petitioner's counsel wanted to contend that, in fact, the first appellant/first petitioner was born prior to 1970. As stated earlier, Ext.A1 was of the year 1970. 6. The suit was resisted contending that Ext.A1 is not true or genuine and is invalid. That was found against. ## **R.P. No.652/2013 in R.S.A. No.268/2013** ## **-4-** Such a contention was raised about 39 years after the date of Ext.A1. The executants of Ext.A1 did not raise any objection regarding the assignment, evidenced by Ext.A1. The request made on behalf of the petitioners that they may be given opportunity to adduce evidence cannot be countenanced at all. All the contentions which are now sought to be raised by the review petitioners have been considered in detail in the judgment which is sought to be reviewed. Under the pretext of review there cannot be a rehearing of the appeal, that too, when it has been filed by another lawyer. 7. It was held by the Hon'ble Supreme Court in the decision in **Tamil Nadu Electricity Board and Another v. N. Raju Reddiar and Another - (1997) 9 SCC 736** that: “Review Petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has ## **R.P. No.652/2013 in R.S.A. No.268/2013** ## **-5-** become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the Advocate-on-Record at earlier stage”. 8. As has been stated earlier, even on merit, this petition is liable to be dismissed. There is nothing in Ext.A1 to show that the suit property originally belonged to the joint family or that the first appellant had obtained right by birth in the suit property which was already sold by his father in the year 1970. 9. Now the petitioner wanted to thrust in the copy of the school admission register to show that his date of birth was 07.04.1969. The learned counsel for the respondent would submit that it cannot be accepted at all for host of reasons. It cannot be said that the said school admission register relates to the petitioner herein. Not only that, there is no guarantee with regard to the correctness of the date of ## **R.P. No.652/2013 in R.S.A. No.268/2013** ## **-6-** birth shown in such certificate issued from the school. The extract of the birth register was not produced. The ration card also cannot help the petitioner to contend that he was alive as on the date of surrender deed (Ext.A1). 10. It is also argued by the learned counsel for the review petitioner that the appellant/review petitioner had no opportunity to produce his birth certificate before the trial court to show that he was born prior to the date of Ext.A1. It is pointed out by the learned counsel for the respondent that no plea what so ever was raised by the petitioner herein that he was a member of a joint family and that he was having right at the time of execution of Ext.A1surrender deed. The review petitioner had also no case before the courts below that, as on the date of execution of Ext.A1, the children of Vella and Pangan - the other brothers of Velu, had right in the property, being the members of the joint family. Therefore, there is total dearth of pleading that ## **R.P. No.652/2013 in R.S.A. No.268/2013** **-7-** the property in question was a joint family property or that he, by reason of birth, had become a _co-parcener_ . The contention that was advanced by the petitioner before the court below was that Ext.A1 -surrender deed is null and void. It was not his case that the surrender deed does not take away his right because he was born prior to the date of Ext.A1 and that he was having right over the property. There is absolutely no ground to review the judgment of this Court. In the result this Review Petition is dismissed. Sd/N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge ani/jjj