RP.No. 245 of 2014 in Ex.S.A. No. 13 of 2010

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 5TH DAY OF JUNE 2014/15TH JYAISHTA, 1936 RP.No. 245 of 2014 () IN Ex.SA.13/2010 ---------------------------------- AGAINST THE JUDGMENT IN Ex.SA 13/2010 of HIGH COURT OF KERALA DATED 12-09-2013 ## REVIEW PETITIONER(S)/REVIEW PETITIONERS/APPELLANTS IN THE EX.S.A.: 1. GEORGE JOSEPH @ JEFFY - S/O.MARATHONTHARA JACOB, MAVELI, CHIRAYAMKARA ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. 2. ROMEO JOSEPH - S/O. MARATHONTHARA JACOB, MAVELI, CHIRAYAMKARA ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. 3. JIJI VICTOR - D/O. MARATHONTHARA JACOB, MAVELI, CHIRAYAMKARA ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. 4. JUDE JACOB S/O. MARATHONTHARA JACOB, MAVELI, CHIRAYAMKARA ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. ## 5. MERCY - W/O. MARATHONTHARA JACOB, MAVELI, CHIRAYAMKARA ALANGAD VILLAGE, PARAVUR TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.RENJITH THAMPAN (SR.) SMT.P.R.REENA RP.No. 245 of 2014 () IN Ex.SA.13/2010 **2** ## RESPONDENTS **/RESPONDENTS/RESPONDENTS IN EX.S.A.:** 1. MOHAMMED AZEEM - S/O.KUNJALI NAINA, VAZHAPPILLY HOUSE, ALUVA KARA ALUVA WEST VILLAGE, ERNAKULAM DISTRICT, PIN - 683 101. 2. HALEEMA - W/O. KUNJALI NAINA, VAZHAPPILLY HOUSE, PALACE ROAD ALUVA WEST VILLAGE, ERNAKULAM DISTRICT, PIN - 683 101. 3. V.K. AZEEZ S/O. KUNJALI NAINA, VAZHAPPILLY HOUSE, PALACE ROAD ALUVA WEST VILLAGE, ERNAKULAM DISTRICT, PIN - 683 101. 4. HARIS - S/O. KUNJALI NAINA, VAZHAPPILLY HOUSE, PALACE ROAD ALUVA WEST VILLAGE, ERNAKULAM DISTRICT, PIN - 683 101. R1-R4 BY ADV. SRI.S.B.PREMACHANDRA PRABHU THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 05-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **N.K.BALAKRISHNAN, J.** **............................................ R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 ............................................** ## **Dated: 5-6-2014** ## **ORDER** The appellants in Ex.S.A. 13/2010 has filed this Petition to review the judgment in the aforesaid Execution Second Appeal which was dismissed by this Court as per a common judgment dated 12-09-2013. The aforesaid Ex. Second Appeal 13/2010 was considered along with Ex.SAs 14/2010 and 15/2010. All those Ex.SAs were dismissed by this Court as per the common judgment referred to above. 2. The petitioners contend that they had purchased the property from one Jacob who was the predecessor-ininterest of this property and that a shopping complex was constructed in that building and the rooms were let out on R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **2** rent . It is stated that as per a partition deed of 1986, the property measuring 12.118 cents and the building situated therein, in Sy. No. 223/5 of Aluva Village was allotted to the petitioners and they were thus in ownership and possession of the said property with the building situated thereon. It is also contended that the buildings therein were constructed 45 years ago and that in the year 2000 a small extent of property measuring 88 Sq. metres was sold by the petitioners to one Suresh Babu and that the petitioners are in possession of the balance extent of land and building situated thereon. The petitioners contend that they have perfected their right over the disputed property by adverse possession and limitation. 3. The main ground that has been urged by the learned Sr. counsel appearing for the petitioners is that this Court did not consider the contention raised by the petitioners that no final decree was passed pursuant to Ext.B3 compromise petition dated 23-09-1973 and no final **3** R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 decree was engrossed on stamp paper and as such it should have been found that Ext. B3 had no legal effect. It is further submitted that Ext. B6,the final judgment and Ext. B6 (a) the compromise attached to the same would show that even before 23-09-1973 another compromise petition was filed and a final judgment accepting the compromise petition was passed on 14-6-1971. Thus, the learned Sr. Counsel submits that the effect of Ext. B3, B6 and B6(a), in so far as no final decree had been engrossed in the stamp paper, was omitted to be considered by this Court while considering the Ex. Second appeals. 4. Refuting the submission made by the learned Sr. counsel appearing for the petitioners it is pointed out by the learned counsel for the respondents that the contention as aforesaid advanced by the petitioners/appellants were dealt with by this Court relying on the decision of the Supreme Court in **Venkara Reddy v. Pethi Reddy - AIR 1963 SC 992.** Paragraph 34 of the judgment is the R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **4** ## relevant paragraph which is as under: “34. It was held by the Hon'ble Supreme Court in **Venkara Reddy v. Pethi Reddy - AIR 1963** ## **SC 992** : _“A preliminary decree passed, whether it is in a mortgage suit or a partition suit, is not a tentative decree but must, in so far as the matters dealt with by it are concerned, be regarded as conclusive. No doubt, in suits which contemplate the making of two decrees - a preliminary decree and a final decree- the decree which would be executable would be the final decree. But the finality of a decree or a decision does not necessarily depend upon its being executable. The legislature in its wisdom has thought that suits of certain types should be decided in stages and though the suit in which cases can be regarded as fully and completely decided only after a final decree is made, the decision of the court arrived at the earlier stage also has a finality attached to it. S. 97, Civil P.C. clearly_ R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **5** _indicates that as to the matters covered by it, a preliminary decree is regarded as embodying the final decision of the court passing that decree”._ Therefore, whether a final decree was passed or not would make no difference since so far as the right asserted by one party and denied by the other is concerned the decision rendered by the Court attained finality and so the parties are bound by the same”. 5. The other ground that has been much pressed into service by the learned Sr. counsel appearing for the petitioners is with regard to the identity of the property. First of all, this is only a petition for review of the judgment. That apart, it is pointed out by the learned counsel for the respondents that eventhough it was not necessary for to delve deep into those facts, still this Court, while considering the three Execution Second Appeals dealt with the matter exhaustively even regarding **6** R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 the identity of the property since serious arguments were addressed by the learned Sr. counsel then appearing for the predecessors-in-interest of the party from whom the petitioners had obtained right by assignment deeds. The question of identity was considered by this Court in paragraphs 31,35 etc. of the judgment . 6. It was found that Neelakanda Iyer the 10[th] defendant in O.S.10/1959 was bound by Ext. B7 judgment. The lease hold right set up by him was found against in that case. Though the delivery effected in the earlier case was challenged in O.S. 11/1959, that suit (O.S.11/59) was dismissed. Therefore, the parties who contended that they have obtained right over the property by the subsequent purchase, was bound by the judgment rendered in the earlier case. 7. The learned counsel appearing for the respondents has pointed out that this Court has considered the entire facts of the case and also the points urged by the R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **7** counsel who then appeared for the review petitioner who in fact adopted the arguments advanced by the learned Senior counsel appearing for the assignor/predecessor-in-interest of the petitioners herein. It is also pointed out by the learned counsel for the respondents that in fact the counsel who then appeared for the review petitioners namely the appellants in Ex.S.A. 13/2010, has actually adopted the argument advanced by the learned Sr. counsel appearing for the predecessors-in-interest of the petitioners. It is further submitted that Rajamma the predecessor-in-interest though had raised serious contentions, her contentions were negatived and the Ex. Second Appeal was dismissed. The property which was in her possession was already taken delivery through court. 8. The learned Senior Counsel appearing for the review petitioners has relied upon the decision of the Division Bench of this Court in **Livingston** v. **Sathyamma and Others - 2014 (1) KHC 786** and also the Supreme **8** R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 court decisions in **Sankar Balwant Lokhande v. Chandrakant Shankar Lokhande and another** - **AIR 1995 SC 1211** and **Hameed Joharan and Others v. Abdul Salam - AIR 2001 Supreme Court 3404** in support of his submission that the decree should be engrossed on a non-judicial stamp paper and only then it becomes an executable decree. 9. In **Hameed Joharan's Case** the main point urged was whether the period of 12 years for execution of the decree commences when the decree was pronounced by Court or whether it was engrossed on a stamp paper and signed by the Judge. It was held that if the decree was not engrossed in a non-judicial stamp it may not be received in evidence and it cannot be acted upon but the period of limitation cannot be said to remain under suspension at the volition and mercy of the litigant. 10. It was also held that the limitation starts by reason of the statutory provision and that time does not **9** R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 stop running at the instance of any individual. It was ultimately held that the view that the period of limitation for execution of a partition decree shall not begin to run until the decree is engrossed on requisite stamp paper was not accepted by the Hon'ble Apex Court. It is contended that the decree becomes executable or becomes an instrument duly stamped only when it is engrossed on stamp papers and that the condition precedent is to draw a final decree and then to engross it on stamp papers of required value and that those two acts together constitute the final decree, crystalising the rights of the parties in terms of the preliminary decree. It is submitted by the learned counsel for the respondents that all those questions do not arise for consideration in this Review Petition since the petitioners/appellants cannot have a rehearing by citing some decisions which are inapplicable to the facts of this case and which were not referred to at the time of hearing the Second Appeal. R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **10** 11. It is pointed out by the learned counsel for the respondents that in paragraph 23 of the judgment sought to be reviewed it was found by this court that as per Ext. B3 compromise defendants 50, 51 and 52 did not press their right over item No. 6 and that they withdrew all their claims in respect of that property. It was further found that for the improvements which had been effected in the said property defendants 50, 51 and 52 had received Rs. 8500/- as consideration from the 54[th] defendant mentioned therein. It was pointed out that the consideration of an amount of Rs. 8,500/- was received by Harihara Iyer, the 58[th] defendant on behalf of other defendants also. Further it was held that the right, title and possession over item No. 6 mentioned therein was given to Ramachandran Nair the 54[th] defendant. Paragraph 24 , the contention that the assignment deed relied upon by the petitioner's predecessor is hit by lis pendens. The fact that Neelakanda Iyer, the father of **11** R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 Harihara Iyer had no subsisting right at the time of execution of the document was also referred to in paragraph 28 and other paragraphs of the impugned judgment. Rajamma the wife of Harihara Iyer claimed title based on a compromise decree entered into between herself and others on the one side and the Cardamom Company, the plaintiff in O.S. 23/1963 on the other hand. It was found that no registered document was executed in respect of the alleged transfer of item No.1 in favour of Rajamma referred to earlier. The two other documents referred to by the petitioner's predecessor, to advance their contention that they had obtained title, are Exts. A16 and A17 referred to in the appeal judgments. It was found that those two documents were executed during the pendency of O.S. 10/1959. It was held that the validity of Ext. A16 and A17 was subject to the decree and judgment in O.S. 10/1959 by reason of the principle contained in Sec. 52 of the T.P. Act. The petitioner's predecessor relied R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **12** upon a recital in Ext.A2 the compromise agreement entered into between Rajamma and others which says that a document was executed but no registered document evidencing transfer was executed in favour of Smt. Rajamma. Those factors were considered in detail in paragraph 29 of the judgment. 12. The fact that Rs. 8500/- was paid Harihara Iyer and that Neelakanda Iyer had no subsisting leasehold right or any other right over item No. 6 was dealt with in paragraph 30 of the judgment. 13. It is important to note that all the contentions raised by the petitioner's predecessor which were adopted by the learned counsel who then appeared and argued on behalf of the petitioners were dealt with by this Court. As usual there would be so many points urged in the appeal memorandum but at the time of hearing only those points which are so relevant would be pressed into service and other points will actually be given a gobye. That does not R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 **13** mean that the court has deliberately omitted to consider those points. Those points which were omitted to be pressed into service at the time of hearing cannot be requested to be considered again. In this connection the decision of the Apex Court in **Daman Singh and Others v. State of Punjab and Others - AIR 1985 SC 973** is relied upon. 14. The only other point which was vehemently urged by the learned Sr. counsel appearing for the petitioners is regarding the identity of the property. That was also considered in detail in paragraph 30 of the judgment. It was pointed out that plot Nos. 16,17 and 18 were the only plots which were then to be delivered to the respondents/decree-holders. The extent of plot No. 16 was shown as 2.540 cents. Plot No. 17 and 18 were the plots comprised in Sy. No. 223/5. It is not disputed that subsequent to the disposal of the Ex. Second Appeals, plot Nos. 16 and 17 were obtained delivery by the **14** R.P. No. 245 of 2014 in Ex.S.A. No. 13 of 2010 respondents/decree-holders. The only other plot which remains to be delivered is item No. 18. Since the contention that advanced on behalf of the petitioners and their predecessors with regard to the identity was considered by this Court in detail in the various paragraphs, the argument that the issue regarding identity was not properly considered by this court also must fall to the ground. Under the pretext of review The petitioners cannot request to have a re-hearing of the entire matter. There is no error apparent on the face of the record. Hence, this Review Petition is dismissed. Dated this the 5[th] day of June, 2014. ## **Sd/-N.K.Balakrishnan, Judge.** ani/ /true copy/ P.S. to Judge