IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH
WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931
RP.No. 194 of 2010()
-------------------AGAINST THE JUDGEMENT IN RSA.934/2003
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REVIEW PETITIONER(S): IST RESPONDENT
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M.S.JOSEPH @ M.S.JOSE, S/O.SEBASTIAN JOSE, (WRONGLY WRITTEN AS AVIRA DEVASIA), MALIYEPURACKAL, PULINKUNNU VILLAGE, PULINKUNNU MURI, KUTTANAD TALUK, ALAPPUZHA.
BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SRI.J.R.PREM NAVAZ SRI.C.R.REKHESH SHARMA
RESPONDENT(S): APPELLANTS
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1. LISIAMMA JOSEPH, WIFE OF JOSEPH, MARATHINAL, VELIYANADU MURI, VELIYANADU VILLAGE, KUTTANADU TALUK, ALAPPUZHA.
2. THRESIAMMA, D/O.JOSEPH, DO. DO.
3. MATHEW, SON OF JOSEPH, DO. DO.
4. CHACKO CHACKO, THEKKEVEETTIL, PAIPPADU MURI, PAIPPADU VILLAGE, FROM MARATHINAL, VELIYANADU MURI, VELIYANADU VILLAGE, KUTTANADU TALUK, ALAPPUZHA.
5. CHINNAMMA SEBASTIAN, WIFE OF LATE AVIRA DEVASIA, (DIED), LRS.RECORDED, MALIYAPURACKAL, PULINKUNNU.
6. M.S.ABRAHAM, MALIYEPURACKAL, BANK COLONY, JANATHA ROAD, PALARIVATTOM, ERNAKULAM.
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RP NO.194/2010 IN RSA NO.934/2003
7. LISSY VARGHESE, D/O.AVIRA DEVASIA,
- ANTHRAPER HOUSE, ARTHUNKAL, CHERTHALA.
8. AMMINI VARKEY, D/O.AVIRA DEVASIA,
- ANTHRAPER HOUSE, ARTHUNKAL, CHERTHALA.
9. DR.ELAMMA RAJU, D/O.AVIRA DEVASIA, CHAKAYIL VEEDU, PALLIKACHIRA, CHANGANACHERRY.
10. SUMI SEBASTIAN, D/O.AVIRA DEVASIA, VETTOOR HOUSE, ETTUMANOOR, KOTTAYAM.
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
**THOMAS P. JOSEPH, J.**
**-------------------------------------R.P.No.194 of 2010 in R.S.A.No.934 of 2003 -------------------------------------Dated this the 17[th] day of March, 2010.**
## **ORDER**
This petition seeking review is filed by respondent No.1 in the Second Appeal who is additional defendant No.8 in the trial court. Respondents/plaintiffs sued for recovery of possession of the suit property comprised in survey No.218/1 on the strength of their title. Petitioner/appellant/additional defendant No.8 among other things contended that respondents/plaintiffs have no title over the property and that their title if any, is lost by adverse possession and limitation. Trial court answered the issues in favour of the respondents and granted decree for recovery of possession. Petitioner challenged that judgment and decree before the first appellate court. Learned District Judge while upholding title of respondents held that title is lost by adverse possession and limitation and reversing finding of the trial court to that effect dismissed the suit. Aggrieved, respondents took up the matter before this Court in Second Appeal. This Court framed by way of substantial question of law whether after finding that the suit property belonged to the respondents herein, first appellate court was legally correct in holding that their title is lost by adverse possession and limitation. Arguments were addressed by learned senior advocate appearing for petitioner/appellant/additional defendant No.8 and learned counsel for
**RP No.194/2010 in RSA No.934/2003**
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respondents/plaintiffs. This Court as per judgment dated 15.10.2009 found that finding of the first appellate court regarding adverse possession and limitation is not sustainable, reversed that finding and restored finding of the trial court. That resulted in restoration of judgment and decree for recovery of possession of the suit property granted by the trial court. Now additional defendant No.8 has preferred this review petition contending that this Court failed to take note of the contention that portion of property comprised in survey No.218/1 (in which respondents claimed title) had been acquired for development of AlappuzhaChanganachery road and the canal adjacent to it, it is without considering the extent of land acquired for the said purpose that the impugned judgment was passed by this Court. According to the review petitioner without ascertaining the actual extent of land taken away for the development of the road it is not
possible to ascertain and locate the extent of land available in survey No.218/1. Learned counsel for petitioner submits that on the report and plan submitted by the advocate commissioner, petitioner/additional defendant No.8 had preferred objection on the above lines but that objection was not taken into account either by the trial court or this Court while disposing of the Second Appeal. That according to the petitioner is an error apparent on the face of the record and hence the judgment of this Court is liable to be reviewed. Learned counsel requested that the matter has to be sent back to the trial court to ascertain the
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**RP No.194/2010 in RSA No.934/2003**
actual extent of land taken for formation of the road from survey No.218/1. Learned counsel for respondents contend that trial court had accepted report and plan submitted by the advocate commissioner on the evidence on record which the first appellate court did not interfere and hence no substantial question of law in that regard arose in the Second Appeal. This Court while disposing of the Second Appeal referred to that aspect also and held that there is no reason to interfere with finding of the courts below as to title of respondents in the suit property comprised in survey No.218/1. It is contended by learned counsel that the only substantial question of law framed for a decision with notice to the petitioner also in the Second Appeal was concerning correctness of finding entered by the first appellate court regarding adverse possession and limitation and hence it is not open to the petitioner to contend, after disposal of the Second Appeal that the courts below ought not to have accepted the report and plan submitted by the advocate commissioner.
2. Reference is made by learned counsel for petitioner to paragraph No.13 of the judgment of trial court where there is an observation about objection raised by the petitioner/additional defendant No.8 to the report and plan submitted by the advocate commissioner on the ground that actual extent of land taken from survey No.218/1 for development of road has not been taken into account. But, it is seen from paragraph No.13 of the judgment referred to by
**RP No.194/2010 in RSA No.934/2003**
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the learned counsel that trial court has adverted to that objection of petitioner and held that commissioner and surveyor located the place of the village boundary stone, theodolite stone, field stone and located survey No.218/1, commissioner has stated in the report and mahazar though not specifically shown in the plan that the adjacent properties were also measured and that paddy field of the petitioner is comprised in survey No.217/3 which is correctly shown on the northern side of the suit property which is comprised in survey No.218/1. Learned Munsiff observed that on going through the report and mahazar and evidence of commissioner as DW4 there was no reason to set aside the plan prepared by the commissioner. It is on that finding that title of
respondents in the suit property comprised in survey No.218/1 was upheld. First appellate court has not interfered with that finding of the learned Munsiff. While the Second Appeal was disposed of by this Court, I have referred to the claim of title raised by the petitioner/additional defendant No.8 and stated that evidence on record revealed that the property over which petitioner could claim title is comprised in survey No.217/3 which is situated on the north of the suit property, advocate commissioner has identified the suit property as plot ABCDEF and there is no reason to interfere with finding of the courts below regarding title. It is not as if courts below or this Court were oblivious to the claim of title made by the petitioner over the suit property. As it is, there is a
**RP No.194/2010 in RSA No.934/2003**
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finding that petitioner/additional defendant No.8 has no title over the suit property which is comprised in survey No.218/1 and which the advocate commissioner has shown in the plan accepted by the courts below. Therefore, it is not open to
the petitioner to contend by way of a review that Exts.C1 to C4 ought to have been rejected for the reason stated in the review petition, judgment of this Court is to be reviewed and the matter has to be sent back to the trial court for fresh decision.
3. A review is permitted by Order 47 Rule 1 of the Code of Civil Procedure (for short, “the Code”) when there is a mistake or error apparent on the face of the record or when a new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the party aggrieved is discovered. So far as the expression “error apparent on the face of record” is concerned, decisions on the point say that no error could be said to be apparent on the face of the record if it required an examination or argument
to establish it (See **Lily Thomas v. Union of India - 2000 (2) KLT**
**SN.No.62** ). If the issue raised requires a detailed consideration remedy of the party aggrieved is not by way of review but, by way of appeal or other proceeding challenging the judgment. That is because a review is not a substitute for an appeal. The question whether acceptance of Exts.C1 to C4
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was justified and whether finding of the courts below regarding title was correct and this Court was justified in not interfering in that finding cannot be an 'error apparent on the face of record' to justify a request for review. Hence the request for review cannot be allowed.
Accordingly review petition is dismissed.
I.A.No.501 of 2010 will stand dismissed.
**THOMAS P.JOSEPH, Judge.**
**cks**
