# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943**
**RP NO. 748 OF 2021**
**AGAINST THE ORDER/JUDGMENT IN WP(C) 3061/2021 OF HIGH COURT OF KERALA**
## **REVIEW PETITIONER:**
RAJEEVAN.R., AGED 59 YEARS S/O. RAJAPPAN, SHAPPUVELIYIL @ SHERLY NIVAS, PERUMTHURUTH MURI, MANNANCHERRY P.O, MANNANCHERY VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA 688 538., NOW WORKING AT ALLIED MAINTENANCE COMPANY LTD., POST BOX NO. 1341, AL KHOBAR SAUDI ARABIA, REPRESENTED BY POWER OF ATTORNEY HOLDER, SHEEBA RAJEEV, AGED 44, D/O. M.K. PANKAJAKSHAN, SHERLY NIVAS, PERUMTHURUTH MURI, MANNANCHERRY P.O, MANNANCHERRY VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA -688 538
BY ADVS. S.SANAL KUMAR BHAVANA VELAYUDHAN T.J.SEEMA
## **RESPONDENTS:**
1 SANTHOSH, AGED 55 YEARS S/O. RAJAPPAN, SHAPPUVELIYIL, PERUMTHURUTH MURI, MANNANCHERRY P.O, MANNANCHERY VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA-688 538, NOW WORKING AT ALLIED MAINTENANCE COMPANY LTD., TGV COMPOUND, MADEENA ROAD, POST BOX NO. 2344, TABUK SAUDI ARABIA, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, GIRIJA, AGED ABOUT 44 YEARS, SHAPPUVELIYIL, PERUMTHURUTH MURI, MANNANCHERRY P.O, MANNANCHERRY VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA 688 538. 2 JOLLY GOPINATH, AGED 57 YEARS S/O. RAJAPPAN, KRISHNA BHAVANAM, PERUMTHURUTH MURI, MANNANCHERRY P.O, MANNANCHERRY VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA 688 538.
R.P.No.748/2021 in W.P.(C) No.3061/2021 2
BY ADVS. JOHN JOSEPH JAYASREE K.P.
## **OTHER PRESENT:**
SR.GP REKHA.S
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 18.01.2022, THE COURT ON 31/1/2022 DELIVERED THE FOLLOWING:
R.P.No.748/2021 in W.P.(C) No.3061/2021 3
## **O R D E R**
The writ petitioner seeks to review the judgment of this court dated 6/9/2021 in W.P.(C) No.3061/2021.
2. The essential facts, as disclosed from the writ petition are that, the writ petitioner and the first and the second respondents are the children born to the third respondent in her matrimonial relationship with one Rajappan. Rajappan owned an item of property. After his death, the property devolved on the petitioner and the respondents 1 to 3 in equal shares. According to the petitioner, while they were in joint possession of the property, dispute regarding title arose and hence he filed O.S.No.484/2020 before the Munsiff Court, Alappuzha, seeking injunction. First respondent resisted the suit relying on a Will stated to have been executed by Rajappan and registered as document No. 82/2019/III of Mararikulam SRO, in favour of the first respondent. By virtue of the above Will, the first respondent claimed absolute title over the property. Thereafter, the writ petitioner filed O.S.No.504/2020 of Munisiff Court, Alappuzha for setting aside the Will and for partition of the property. The suit is pending. Apprehending that, in the meanwhile, the first respondent may try to change the Registry claiming right on the basis of the Will, the petitioner issued notice to the Tahsildar requiring him not to effect mutation of the property, in favour of the first respondent. Apprehending that not withstanding the above and the
R.P.No.748/2021 in W.P.(C) No.3061/2021 4
pendency of O.S.No. 504/2020, the Tahsildar may effect mutation, the writ petition was filed. The relief sought in the writ petition was to direct the 4[th] respondent not to effect mutation of the property pending the suit.
3. The first respondent appeared and contested the proceedings, claiming that he had absolute right over the property, that the change of Registry was for fiscal purposes only and that the disputes relating to title are to be adjudicated by the court of Law. It was contended that the officers maintaining the revenue records are not expected to go into disputed contentious issue. It was further contended that their obligation was to effect mutation or change of registry on the basis of the registered documents made available to them.
4. On the basis of the above pleadings, the writ petition was heard and by judgment dated 6/9/2021, the writ petition was dismissed. Essentially, this court held that if an application is filed before the Tahsildar, the settled legal proposition as disclosed from the various decisions cited at Bar, indicated that the Tahsildar has to take an independent decision after giving a reasonable opportunity to persons affected thereby. It was also held that he cannot go into the contentious dispute of title, which was absolutely within the domain of the civil court. It was held by this Court that pending the proceedings, he cannot refuse to effect mutation of the property on the mere ground that dispute was pending before the court.
5. Contending that this court has committed an error apparent on
R.P.No.748/2021 in W.P.(C) No.3061/2021 5
the face of the record and that the judgment was not legally sustainable, the writ petitioner has filed this review petition. The contesting respondent has filed objection and both sides were heard.
6. Essentially, the contention of the learned counsel for the review petitioner was confined to Rule 27 of the Transfer of Registry Rules 1967. Rule 27 provides that, in the case of transfer of title by succession, all cases of change of registry shall be disposed of in accordance with Rule 27. It was held that when a claim by succession of heir ship was sought, and when succession was not disputed, the Tahsildar may direct the transfer of registry either at once or after due enquiry. If the succession was disputed, the Tahsildar should hold a summary enquiry as to who has the right to succeed to the property of the deceased registered holder according to the principles of law of succession which governs the case and give notice to all parties known or believed to be interested in the manner provided in Note (ii) to Rules 10 to the effect that the Registry will be made in the name of the person found to be entitled, unless a declaration is filed, within three months from the date of the notice. It was further provided that, if any person objects, stating that he has instituted a suit in a Civil Court to establish his superior title, the suit should be awaited before taking further action. It was contended by the learned counsel for the review petitioner that this specific rule was neither brought to the notice of this court nor has the court referred to the above provision. It was contended that any decision
R.P.No.748/2021 in W.P.(C) No.3061/2021 6 without referring to the specific legal provision applicable was bad and hence liable to be reviewed. To supplement the above argument, the learned counsel referred to the decision in _**Jitendra Singh v. State of Madhya Pradesh (2021 (5 ) KLT 241 (SC),**_ wherein at para 5 it was held that as per settled proposition of law, dispute with respect to the title and more particularly when the mutation entries are sought to be made on the basis of the Will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystallized and only thereafter on the basis of the decision before the civil court, necessary mutation entry can be made.
7. This argument of the learned counsel for the petitioner was refuted by the learned counsel for the first respondent contending that Rule 27 applies only in a case where the contesting party files a suit claiming superior right. In the case at hand, the petitioner herein did not claim a superior right than that of the first respondent, much less he claimed only an equal right along with respondents 1 to 3. Consequently, even assuming that Rule 27 was not taken note of by this court, decision would not have been different. The judgment was not liable to be interfered. Since there was no an error apparent on the face of the record. It was further contended by the learned counsel that a subsequent judgment cannot be a ground to review a judgment. To supplement this contention, the learned counsel relied on a decision reported in _**Meera Bhanja v. Nirmala Kumari Choudhury (1995 (1)**_
R.P.No.748/2021 in W.P.(C) No.3061/2021 7
## _**SCC 170**_ ).
8. There cannot be any doubt that a subsequent judgment of this court cannot be a mere ground for seeking a review of the judgment. Incidentally, it seems that the judgment of the Supreme Court was pronounced on the same day on which the judgment of this court was passed. Hence, it cannot technically be said that it was subsequent judgment. Further, the contention of the learned counsel for the petitioner was essentially based on Rule 27. The legal proposition advanced by the petitioner was sought to be supplemented by the judgment of the Supreme Court in Jitendra Singh's case (supra). .
9. It is true that the term used in Rule 27 indicates that pendency of a Civil Suit in a court establish a superior title is the sine quo non for invoking Rule 27. It is also true that the petitioner was claiming equal right along with other respondents. However, it is to be considered that the first respondent had taken up the stand that the petitioner had no right at all over the property. However, the case of the petitioner was that he had an equal right along with the respondents 1 to 3 and to that extent it can be considered as a claim superior right.
10. Evaluation of the above facts shows that Rule 27 was not specifically brought to this Court's notice and this court also did not refer to Rule 27 while considering the above issue. Definitely, the impact of Rule 27 in the case at hand ought to have been subject matter of consideration by this court. To that extent, I am satisfied that there is an
R.P.No.748/2021 in W.P.(C) No.3061/2021 8
error apparent on the face of the record and the judgment of this court is liable to be reviewed on the limited ground.
In the result, the review petition stands allowed. The judgment dated 6/9/2021 stands reviewed and recalled. Post the writ petition for hearing as per roster either this week or next week.
**Sd/-**
**SUNIL THOMAS**
**JUDGE**
**dpk**
R.P.No.748/2021 in W.P.(C) No.3061/2021 9
## **APPENDIX OF RP 748/2021**
PETITIONER ANNEXURES
Annexure A1 A TRUE COPY OF THE RECEIPT SHOWING THE ACCEPTANCE OF COPY OF THE PLAINT BY THE 4TH RESPONDENT, TAHSILDAR.
