S. Esabella Christian v. C. Thankarajan (RP No. 498 of 2014 in Mat.Appeal No. 211 of 2005, High Court of Kerala at Ernakulam)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE A.HARIPRASAD FRIDAY, THE 10TH DAY OF OCTOBER 2014/18TH ASWINA, 1936 RP.No. 498 of 2014 () IN Mat.Appeal.211/2005 ---------------------------------------------- AGAINST THE JUDGMENT IN Mat.Appeal 211/2005 of HIGH COURT OF KERALA REVIEW PETITIONER(S)/RESPONDENT IN MAT .APPEAL: ---------------------------------------- S.ESABELLA CHRISTIAN, AGED 67 YEARS,RESIDING AT REVATHI HOUSE, GRAMOM JUNCTION NEYYATINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.SARAT RESPONDENT(S)/APPELLANT IN MAT.APPEAL: ---------------------------- C.THANKARAJAN RESIDING AT THUNDUKANJIRAM, NINNA VEEDU THIRUPURAM P.O, NEYYATTINKARA, TRIVANDRUM 695 001. BY SRI.G.S.REGHUNATH THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 29.08.2014, THE COURT ON 10.10.2014 PASSED THE FOLLOWING: RP NO.498/2014 IN MAT.APPEAL.211/2005 ## APPENDIX PETITIONER'S EXHIBITS: ANNEXURE A TRUE COPY OF THE SAID JUDGMENT DATED 23.12.1993 IN OP NO.226/92 BEFORE THE FAMILY COURT, THIRUVANANTHAPURAM RESPONDENT'S EXHIBITS: NIL //TRUE COPY// ## **V.K.MOHANAN & A.HARIPRASAD, JJ.** **-------------------------------------R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 -------------------------------------Dated this the 10[th] day of October, 2014.** ## **ORDER** ## **Hariprasad, J.** Respondent in the review petition was the appellant in Mat.Appeal No.211 of 2005 before this Court. He came up challenging the judgment in the final decree proceedings in O.S.No.476 of 1992 on the file of the Family Court, Thiruvananthapuram. The review petitioner and the respondent were husband and wife at one point of time. They severed their relationship through a decree of divorce. 2. The challenge in the appeal raised by the respondent herein was against the direction by the Family Court to partition the disputed property by metes and bounds into two moieties. According to the respondent in the review petition, the property is a narrow strip of land, which is used as a pathway for gaining access to his residential compound. It is, therefore, impossible to partition the narrow strip of land into two halves without adversely affecting its intrinsic value and utility. R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 2 3. This Court considered the matter at length and found that the direction of the Family Court to physically divide the property was legally unsustainable and therefore directed to sell the property by invoking the provisions under the Partition Act, 1893 (in short, “the Act”). It was also considered by this Court that the respondent herein (appellant in the Mat.Appeal) had applied under Sec.2 of the Act for purchasing the property. It was further noted that the review petitioner (respondent in the Mat.Appeal) did not raise any objection nor did she offer to purchase the property. The commonly known phenomenon of price increase of land was also considered by this Court and allowed the respondent herein to purchase the property for the value fixed by the Court, after taking into consideration all the relevant inputs. Aggrieved by the directions in the judgment of this Court, respondent in the appeal has come up with this review petition. 4. Heard the learned counsel for the review petitioner and the learned counsel for the respondent. 5. Review petitioner raised following contentions. The application filed by the respondent (appellant in the earlier proceedings) was not in conformity with Sec.2 of the Act. If the other co-sharer is not coming R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 3 forward to purchase the property, the only remedy is a public sale under Sec.6 of the Act. Learned counsel for the review petitioner further submitted that the extreme step of directing to sell the property can be resorted to by the court only when the property is found to be impartiable. Regarding this contention, learned counsel for the respondent submitted that the commissioner's plan and report already perused by this Court would clearly show the shape of the property and the nature of the possible user of the same. It is a narrow strip of land starting from a road and ending in the residential compound of the respondent herein. The dimension of the property can be discerned from the commissioner's plan. By dividing the property into two, it is palpably clear that no one will be benefited. 6. Learned counsel for the respondent submitted that the petition filed by the respondent before the trial court under Sec.2 of the Act was not challenged by the review petitioner. She did not even offer to purchase the property for a higher value. There was no occasion to go for a public auction as contended by the review petitioner. R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 4 7. The contention raised by the learned counsel for the review petitioner that Sec.6 of the Act should have been applied in this case is fallacious. Sec.6 may be regarded as a corollary to Sec.2 of the Act. When, in a partition suit, it is found that from the nature of the property that it is incapable of a partition or that partition is inconvenient, the court can even suo motu order the property to be sold at public auction. But, in this case the request made by the respondent for purchasing the property was not even countered by the review petitioner. 8. Law is well settled on this point in **Badri Narain Prasad Choudhary and others v. Nil Ratan Sarkar (AIR1978 SC 845)** . In that decision, the Apex Court unequivocally held that in a case not covered by Secs.2 and 3 of the Act, the court is still having power to partition the property by equitable method. Law laid down in paragraph 20 reads as follows: _“Where the suit property is so small that it cannot be conveniently partitioned by metes and bounds without destroying its intrinsic worth, there is no alternative but to resort to the process called Owelty, according to which, the rights and interests of the parties in the property will be separated, only_ R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 5 _by allowing one of them to retain the whole of the suit property on payment of just compensation to the other.”_ 9. Learned counsel for the review petitioner relied on the following decisions. **L.Ram Prasad v. Mt.Mukandi and another (AIR 1929 Allahabad 443), Gadadhar Ghose v. Janaki Nath Ghosh and others (AIR 1969 Calcutta 59)** and **Faquira v. Smt.Raj Rani and another (AIR 1984 Delhi 168)** . Those decisions are not relevant for deciding the disputes in the case in our hand. The Supreme Court in **Badri Narain Prasad Choudhary** 's case (supra) clearly recognized the power of the court to do complete equity between the parties _de hors_ the Partition Act. Yet another decision relied on by the learned counsel for the review petitioner, viz., **Rajan v. John (2012 (1) KLT 86)** can be easily distinguished on facts. 10. Learned counsel for the respondent contended that the power of review is very limited. The whole issues considered in the appeal cannot be re-agitated in a review petition. There is no error apparent on the face of the record in the impugned judgment. Therefore, no question of review arises in this case, contended the learned counsel for the respondent. The R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 6 ## Apex Court in **Thungabhadra Industries Ltd. v. Govt. of A.P. (AIR 1964** **SC 1372)** speaking through a three Judge Bench reiterated the principle relating to power of review thus- _“11. ......... A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out............”_ All the relevant decisions have been considered by the Supreme Court in **Haryana State Industrial Development Corporation Limited v. Mawasi and others ((2012) 7 SCC 200)** . Therefore, considering the contentions raised by the review petitioner and on re-examination of the matter, we are of the view that the review petition is unsustainable in law. There is no R.P.No.498 of 2014 in Mat. Appeal No.211 of 2005 7 error apparent on the face of the record or any other sufficient reason categorized under Order 47 Rule 1 of the Code of Civil Procedure enabling the review petitioner to sustain her claim. In the result, the review petition is dismissed, but without any order as to costs. ## **V.K.MOHANAN, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**