IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 RP.No. 608 of 2005() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29926/2004 Dated 27/05/2005 .................... REVIEW PETITIONER(S): REVIEW PETITIONER/AGGRIEVED 3RD PARTY ----------------------------------------------------------- N.T.KUNHIRAMAN, S/O.KUNHAMBU, AGED 60 YEARS, NAMBIDI THIDIL HOUSE, MATHAMANGALAM DESOM, ERAMAM AMSOM, KANNUR DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENT(S): PETITIONER AND RESPONDENT IN W.P(C) -------------------------------------------------- 1. SEEREVALAPPIL SAINABA UMMA, AGED 50 YEARS, D/O.KUNHAMBY, KUTTOOR AMSOM DESOM, KANNUR DISTRICT. 2. THE SUPERINTENDENT OF SURVEY, PAYYANUR, KANNUR DISTRICT. ADV. SRI.M.SASINDRAN FOR R2 SRI.T.P.ELDHO GOVERNMENT PLEADER SHRI.K.RAMESH THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 07/06/2010, ALONG WITH W.P.(C).No.29926/2004 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.SIRI JAGAN, J. ================== R.P.No. 608/2005 & W.P.(C).No. 29926/2004 ================== Dated this the 7th day of June, 2010 J U D G M E N T The petitioner in the review petition seeks review of the judgment of a learned Single Judge dated 27.5.2005 in the above writ petition. The petitioner in the review petition was not a party to the said writ petition. That writ petition was filed by the 1st respondent in the review petition seeking a direction to the 2nd respondent to consider and pass orders on Ext.P6 application filed on 10.10.2000. Ext.P6 is a petition filed by the 1st respondent in the review petition seeking correction of the survey records in respect of certain properties allegedly obtained by the 1st respondent in the review petition, by Ext.P1 document. Ext.P6 proceeded on the basis that when the 1st respondent in the review petition wanted to pay tax, it was found that in the particular survey number, out of 70 cents only 30 cents were shown in the name of the 1st respondent in the review petition and therefore, tax can be accepted only for the said extent of land. It is citing the said reason, that the 1st respondent in the review petition filed Ext.P6 seeking correction of the resurvey records. Therefore, the 1st respondent in the review petition sought the following the prayers in the writ petition: “i) issue a writ of mandamus or any other writ order to command the respondent to rectify the defects in resurvey of property belonged to the petitioner and her daughter (70 cents and 1.3 acres in r.p.608/05 & wpc.29926/04 2 Old R.S.1/1A1 of Eramam Village). ii) issue a writ of mandamus or any other writ order directing the respondent to measure the property belonged to the petitioner and daughter on the basis of title documents and possession. iii) issue a writ of mandamus or any other writ order and command the respondent to take necessary action on the basis of Ext.P8 petition.” 2. Since one of the prayers is to consider Ext.P6, when the matter came up before the learned Single Judge on 27.5.2005, the learned Single Judge disposed of the writ petition by the following judgment: “The petitioner has approached this Court, praying, inter alia, for a direction to the respondent Superintendent of Survey and Land Records to consider Ext.P6, which is a petition to correct the alleged mistakes in the resurvey records. 2. I heard the learned Government Pleader also. Having regard to the facts of the case, the respondent is directed to consider and pass orders on Ext.P6 in accordance with law within three months from the date of receipt of a copy of this judgment. It is made clear that I have not expressed any opinion on the merits or the maintainability of Ext.P6.” 3. It is in the above circumstances, the petitioner in the review petition has filed the above review petition. He would contend that he is the owner of the property in question and there was a boundary dispute between the two, in respect of which, the 1st respondent and others filed O.S.76/2001 before the Munsiff's Court, Payyannur, in which, the 1st respondent had made a specific averment that approximately 70 cents of property belonging to the plaintiffs in the suit including the 1st respondent, was registered in the name of the defendant in the suit, which is none other than the petitioner in the r.p.608/05 & wpc.29926/04 3 review petition and, therefore, they submitted an application before the Survey Superintendent on 10.10.2000, which was disposed of by the Survey Superintendent stating that since there is a property dispute pending, he cannot interfere in the matter. The petitioner in the review petition would contend that suppressing this material fact and suppressing the fact that there was a very serious boundary dispute between the two, the 1st respondent has filed the writ petition styling it as a writ petition for simply seeking a direction to consider Ext.P6 application for correction of the survey records and got the judgment in question without impleading the petitioner n the review petition who was a necessary party to the writ petition. He would, therefore, submit that the petitioner in the writ petition has approached this Court with unclean hands by suppressing facts and, therefore, the judgment is liable to be reviewed. He also points out that the said suit was dismissed, which has become final and it is after the dismissal of the suit that the 1st respondent in the review petition has filed the writ petition. According to him, after having lost the suit, she cannot resurrect the cause of action by seeking to correct the re- survey records. 4. A counter affidavit has been filed by the 1st respondent in the review petition taking a contention that the review petition itself is not maintainable. According to her, for the prayers in the writ petition, r.p.608/05 & wpc.29926/04 4 the petitioner in the review petition was not a necessary party and that the writ petition was perfectly maintainable without the petitioner in the review petition in the party array. The contention in the review petition that the petitioner in the writ petition has stated in the plaint that Ext.P6 was disposed of, is answered in the counter affidavit stating that an order on Ext.P6 was not issued to her either at the time of filing the suit or at the time of filing of the writ petition. She does not offer any explanation for the specific statement in the plaint that the Survey Superintendent had disposed of the application. The 1st respondent would contend that Ext.P6 has nothing to do with the boundary dispute and it is solely confined to the correction of survey records and the petitioner in the review petition is not a necessary party. She would, therefore, contend that the judgment under review is perfectly valid and proper, and does not require review at the hands of this Court. 5. I have considered the rival contentions in detail. 6. Every contention of the petitioner in the writ petition against the review petitioner is clearly answered against her by Ext.P5 plaint in O.S.No.76/2001, which was filed by herself. She does not dispute Annexure A5 plaint produced along with the review petition as the copy of the plaint filed by her and two others before the Munsiff's Court, Payyannur. Therein, in paragraphs 6 and 7 it is stated r.p.608/05 & wpc.29926/04 5 thus: “6. During September, 2000 the defendant attempted to trespass into the plaint 'A” E & F schedule property declaring that the portion of it is owned by him. These plaintiffs approached the Village Officer to get their properties measured. At that time, these plaintiffs could find that approximately 70 cents of their property is registered in the defendant's name., in the new survey records. These plaintiffs are directed to submit application before the Survey Superintendent to correct the mistake in the survey records. As such, they submitted to application before the Payyannur Survey Superintendent on 10.10.2000 stating all the facts. They have also produced the copies of the documents. But the Survey Superintendent disposed off the application stating that, there is a property dispute between these plaintiffs and defendant and as such, he cannot interfere in it. The findings of the Survey Superintendent is il-based and false. 7. These plaintiffs bonafidely believe that the defendant and survey authorities colluded together and fraudulently plotted a portion of these plaintiffs' property in the name of defendant. The basic tax receipts issued for 3 Acres of property, ie., entire plaint E & F schedule properties in the old re-survey number, ie. R.S.No.1/1A1 proves that the survey and village authorities fully know the fact that the 1st plaintiff is in ownership and possession of entire 3 acres of property.” That would abundantly make it clear that the petitioner in the writ petition was quite aware of the fact that the property in question was registered in the name of the petitioner in the review petition. In fact O.S.No.76/2001 was dismissed with costs on 15.12.2003. The petitioner in the writ petition filed the writ petition only on 11.10.2004. She had specifically referred Ext.P6 in the writ petition in Annexure 6 plaint. Therefore, she cannot feign ignorance about this fact, which she has deliberately suppressed in the writ petition so as to obtain the judgment in question. There cannot be any doubt that the subject matter in the suit and in Ext.P6 are one and the same and therefore, the petitioner in the review petition was certainly a necessary party to r.p.608/05 & wpc.29926/04 6 the writ petition. Moreover, in Ext.P6 the 1st respondent wanted the property standing in the name of the petitioner in the review petition changed to her name, by correcting the survey records. Therefore, I am perfectly satisfied that the petitioner in the writ petition has suppressed material fact from this Court and deliberately did not implead the petitioner in the review petition as a party to the writ petition, although he was a very necessary party to the writ petition in view of the fact that the dispute was, as between the two in whose name the property should stand. Of course, the petitioner in the writ petition points out that in paragraph 4 of the writ petition she had specifically stated thus: “4. .... The petitioner had earlier instituted a suit for injunction against adjacent property owner who tried to trespass. At present no suit is pending. But the respondent took advantage of this incident and took a view that there was (sic) he would not do his duty when the suit is pending. Even after culmination of the proceedings in this suit, the respondent is keeping silence. There is no justification on the part of the respondent in not performing his statutory duty. The petitioner is aggrieved by the adamant attitude of the respondent which caused much prejudice to them.” According to me, it really reveals the mala fide intention of the petitioner in the writ petition. After mentioning that there was a suit for injunction, she deliberately suppressed the fact that the suit is between the petitioner in the writ petition and the petitioner in the review petition in respect of the said property, which is also the subject matter of Ext.P6. She mentioned the suit without any details deliberately just to obviate the possibility of later being accused of r.p.608/05 & wpc.29926/04 7 suppression of material facts and at the same time really suppressed material facts. In fact she took this Court for a ride to obtain the relief which she failed to obtain in the suit, by a devious method. In view of the above position, the review petition is liable to be allowed. Accordingly, the same is allowed and the judgment dated 27.05.2005 in the writ petition is recalled. In view of the fact that the petitioner in the writ petition has deliberately suppressed material facts and deliberately did not implead the petitioner in the review petition who was a necessary party to the writ petition, the writ petition would stand dismissed on that ground. Even otherwise, in view of the fact that there is genuine dispute regarding title, the same can only be resolved in a suit, which the petitioner in the writ petition has attempted and failed. She cannot now resurrect the lost cause of action through a writ petition by an indirect method of getting the resurvey records corrected. The petitioner in the review petition is entitled to exemplary costs in view of the recalcitrant attitude of the petitioner in the writ petition, which I fix as Rs.15,000/- and shall be paid within one month. The review petition and writ petition are disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge r.p.608/05 & wpc.29926/04 8