RP.No.510 of 2010 in RSA No.1185 of 2009 & RP.No.511 of 2010 in RSA No.1186 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932** ## **RP.NO. 510 OF 2010()** - **-----------------------------AGAINST THE JUDGEMENT IN RSA.1185/2009 DATED 25/11/2009** **....................** ## **REVIEW PETITIONER(S): APPELLANTS** **------------------------------------------------------** **1. THANKAMANI,W/O.KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **2. SAROJINI,D/O.KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **3. BABU RAJAN,S/O.KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **4. HARIDASAN,S/O.KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **5. GEETHA KUMARI,D/O.KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **6. SAJITHAKUMARI,D/O.KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **BY ADV. SRI.P.VIJAYA BHANU** ## **RESPONDENT(S): RESPONDENTS** **--------------------------------------------------** **1. APPUKUTTAN,S/O.ALOOR THATTAN SANKUNNY, ALOOR VILLAGE,THALAPPILLY TALUK.** **2. PARUKUTTY,D/O.ALOOR THATTAN SANKUNNY, ALOOR VILLAGE,THALAPPILLY TALUK.** **3. JANAKY,D/O.ALOOR THATTAN SANKUNNY, ALOOR VILLAGE,THALAPPILLY TALUK.** **4. SURESH BABU,S/O.LATE KRISHNAN, ALOOR VILLAGE,THALAPPILLY TALUK.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 15/06/2010 ALONG WITH R.P. NO.511 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.P. No.510 of 2010 in R.S.A. No.1185 of 2009 & R.P. No.511 of 2010 in R.S.A. No.1186 of 2009 ==================================== Dated this the 15[th] day of June, 2010** ## **O R D E R** These Petitions are for review of common judgment and decree of this Court dated 25.11.2009 dismissing the Second Appeals in limine at the admission stage. Review Petitioners/appellants who are legal heirs of deceased Kirhsnandefendant No.1 challenged common judgment and decree of the courts below allowing partition of the suit property in O.S. No.209 of 1985 while dismissing the suit filed predecessor-in-interest of petitioners - O.S. No.192 of 1985 which is for decree for prohibitory injunction as if he was the absolute owner of the suit property. While disposing of the Second Appeals this Court observed that trump-card of appellants is Ext.A1, Pattachit of the year, '1975' allegedly executed by Krishnan, their predecessor-ininterest in favour of the Jenmi and that it is hit by Section 74 of the Kerala Land Reforms Act (for short, the “KLR Act”). This Court ## **R.P. Nos.510 & 511 of 2010** ## -: 2 :- observed that the said document therefore cannot be reckoned for any purpose whatsoever. This Court also referred to the contentions raised by respondents that the tenancy was in favour of their father, Sankunny as per an oral lease and predecessor in interest of petitioners (late Krishnan) had only a co-ownership right in the property in his capacity as one of the legal heirs of the said Sankunny. Finding of the courts below in that regard was found to be not suffering from any perversity or illegality requiring this Court to interfere in Second Appeal. In these review petitions it is contended by petitioners-appellants that this Court has proceeded on the basis that lease created as per Ext.A1 of the year 1975 is illegal in so far as Sec.74 of the Act prohibited creation of lease after 01.04.1964 and hence judgment of this Court suffered from an error apparent on the face of record. It is also contended that courts below while deciding that tenancy was in favour of Sankunny overlooked evidence adduced by the predecessor-in-interest of petitioners in the Land Tribunal. Learned counsel made a fervent plea to review the judgment and decree of this Court and give an opportunity to address arguments on the correctness of the finding entered by the courts below. ## **R.P. Nos.510 & 511 of 2010** -: 3 :- 2. Dispute that was required to be resolved by the courts below was whether tenancy was in favour of Krishnan, predecessor-in-interest of petitioners or it was an oral lease in favour of Sankunny, father of Krishnan and others. Krishnan had to his credit Exts.A2 and A3, purchase certificates issued by the Land Tribunal on the strength of Exts.A4 and A5 orders. He also produced Ext.A1, copy of pattachit he is said to have executed in favour of the Jenmi. That pattachit is of the year '1946'. But by a mistaken impression this Court referred to that Pattachit as of the year 1975 ad hence hit by Sec.74 of the Act. No doubt that observation of this Court in the judgment sought to be reviewed is an error apparent on the face of the record. 3. But that by itself is not a ground to review the common judgment since if the judgment and decree sought to be reviewed can be sustained on any other ground mentioned in the judgment a review is not admissible even if one reason for arriving at the conclusion is found to be an error apparent on the face of the record. This principle has been laid down in **Mt.Hiran Bibi v. Mt.Sohan Bibi** (AIR 1914 Allahabad 44). Hence notwithstanding that this Court went wrong in observing that Ext.A1 being of the year 1975 is not to be reckoned as no ## **R.P. Nos.510 & 511 of 2010** -: 4 :- lease could be crated after 01.04.1964 if the judgment and decree can be sustained otherwise a review is not possible. 4. I stated that the crucial issue is whether lease was in favour of Sankunny or his son Krishnan who is the predecessor-ininterest of petitioners before me. I also referred to the proceedings in the Land Tribunal which culminated in Exts.A2 and A3 in favour of the said Krishnan but to which other legal heirs of Sankunny were not parties. Nor was it a case where Krishnan had applied for and obtained the purchase certificate in his capacity as a joint tenant as a legal heir of the late Sankunny. He claimed independent right under Ext.A1, pattachit of the year 1946 and obtained purchase certificate. In the reference from trial court the Land Tribunal has held that earlier proceedings which resulted in Exts.A2 and A3 are vitiated as there was no notice to the interested parties individually or by public notice as required under Sec.72 of the Act. It was on that premise that Exts.A2 and A3 were sidelined by the Land Tribunal. In the trial court also evidence was adduced by the parties. So far as the tenancy claimed by the predecessor-in-interest of petitioners is concerned reliance was placed on the oral evidence of R.W.1 and his witness as R.W.2. Version of R.W.2 was that at the time Krishnan was in ## **R.P. Nos.510 & 511 of 2010** ## -: 5 :- possession and enjoyment of the suit property under Ext.A1 lease, Sankunny and others were staying in the property of one Ittoop where Sankunny breathed his last. Since Ittoop declined permission to burry the body of Sankunny in the said property, it was taken to the property of brother of Krishnan where it was burried. That evidence was given obviously to show that even during the lifetime of Sankunny, Krishnan was in possession and enjoyment of the property. But contra evidence was given by contesting respondents through P.Ws.1 to 7. Their evidence is that it was Sankunny who was in enjoyment and possession of the suit property. 5. Another document now pressed into service is Ext.A4 marked in the Land Tribunal. That document is of the year 1122 M.E. executed in the family of Jenmi. As per that document suit property was allotted to Sakha No.5 and it is from the said Sakha that Krishnan is said to have obtained lease on executing Ext.A1, pattachit in favour of the Jenmi. Learned counsel contended that there is no reference in Ext.A4 to the suit property outstanding on lease and that Sankunny obtained oral lease 50 years back. But there is reference in Ext.A4 to a lease in favour of one Lakshmi. According to the learned counsel if suit property was outstanding **R.P. Nos.510 & 511 of 2010** -: 6 :- on lease with Sankunny at the time of Ext.A4, that fact would have been stated in Ext.P4. 6. Exhibit A1 was allegedly executed after Ext.A4, in favour of Krishnan by one Kesavan Nair of Sakha No.5. Courts below observed that notwithstanding that Krishnan got property as per lease no attempt was made to examine Kesavan Nair as a witness on his side. Courts below also held that Ext.A1 is a unilateral document allegedly executed by Krishnan in favour of the Jenmi but there is nothing on record to show that Jenmi had accepted or assented to the lease. Non-examination of Kesavan Nair was found to be fatal. It is in the above circumstances that courts below were not inclined to accept Ext.A1 and the lease claimed by petitioners. 7. Learned counsel placed reliance on the judgment in O.S. No.196 of 1975. That was a suit filed by petitioners against the Jenmi where they obtained a decree for prohibitory injunction. But concededly respondents were not parties to that suit. Trial court and in particular the appellate court referred to the entire evidence on record and found against claim of lease in favour of Krishnan. Courts below also held in favour of tenancy in favour of Sankunny, predecessor-in-interest of parties. ## **R.P. Nos.510 & 511 of 2010** -: 7 :- 8. When the Second Appeals came up for admission I heard learned counsel for the petitioners on the correctness of the above finding as well and after referring to the contentions and findings of the courts below held that it did not involve any substantial question of law or that finding is perverse so that this Court in Second Appeal is required to interfere. If that be so for the mere reason that reference to Ext.A1 as creating an invalid lease being of the year 1975 being not correct is not by itself a ground to review the judgment and decree passed by this Court which can otherwise be sustained on the second limb of the contention discussed above and referred to in the judgment under challenge. In that situation petitioners cannot succeed in these petitions. Review Petitions are accordingly dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv