IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 RP.No. 945 of 2008(D) & CROSS OBJECTION 97 /2010 ---------------------------------------------------------------------------- AGAINST THE JUDGEMENT/ORDER IN AS.591/1995 Dated 04/06/2007 .................... REVIEW PETITIONER(S): 3RD RESPONDENT/ 3RD DEFENDANT -------------------------------------------------------------------------------------------- T.M.CHACKO ,S/O.CHACKO MATHAI, OOTTUKUZHIYIL VEEDU, PULLUPURAM MURI, RANI ANGADI VILLAGE, RANNI. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): APPELLANTS/PLAINTIFFS & RESPONDENTS/DEFENDANTS 4,5 -------------------------- & 7 TO 10 AND SUPPLEMENTAL RESPONDENT IMPLEADED (RESPONDENTS/ DEFENDANTS 1,2 & 6 DIED AND HENCE NOT MADE PARTIES IN THIS REVIEW PETITION 1. FLORY GEORGE, D/O.LATE MATHAI SIMON, RESIDING IN KURUDAMANNILAYA KAIPPALLAIL, ALUNKAL VEEDU, KOTTATHOOR MURI, AYROOR VILLAGE RANNI TALUK, PATHANAMTHITTA. * 2. ALEYAMMA SIMON, W/O. LATE MATHAI SIMON. DO..DO... (DIED) 3. GEORGE VARKEY, S/O.VARKEY RESIDING AT ANTHALIL PUTHEN VEEDU, KADAPRA MURI, KAITHAPRAM VILLAGE,THIRUVALLA TALUK. 4. MATHAI LEELAMMA, D/O.CHACKO MATHAI, OOTTUKUZHIYIL VEEDU, PULLUPURAM MURI, RANNI ANGADI VILLAGE. 5. MATHAI MARIAMMA,D/O.CHACKO MATHAI, OOTTUKUZHIYIL VEEDU, PULLUPURAM MURI, RANNI ANGADI VILLAGE.,RANNY. 6. MATHAI VARGHESE,S/O. CHACKO MATHAI, DO..DO.. 7. MATHAI RAHELAMMA, S/O. CHACKO MATHAI, DO..DO.. RP. NO.945/2008 8. MATHAI SOSAMMA,D/O.MATHAI, DO..DO.. 9. MATHAI ALEEZ, S/O. CHACKO MATHAI, DO...DO... 10. T.KUNJHAMMA, D/O. LATE CHACKO, MATHAI, W/O. EAPEN, RESIDING AT NEERATTURAM THIRUVALLA. 11. SAJI MATHEW, S/O. LATE CHACKO, MATHAI, RESIDING AT NEERATTURAM THIRUVALLA. *IT IS RECORDED THAT THE 2ND RESPONDENT IN THE RP DIED AND THAT THE IST RESPONDENT ALREADY IN THE PARTY ARRYA IS HER ONLY LEGAL HEIR VIDE ORDER DTD. 9.7.09 IN MEMO DTD. 9.7.09 WITH C.F. NO.3128/2009. R1 TO R3 BY SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE R1 TO R3 BY ADVS. SRI.K.MOHANAKANNAN R 4 TO 11 BY SMT.C.G.AJITHA, SMT.D.SARITHA, SMT.M.K.RAJITHA, SMT.C.G.BINDU. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 04/11/2010, ALONG WITH CROSS OBJCTION NO.97 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 ............................................. Dated this the 4th day of November, 2010. O R D E R These type of applications demonstrate the protraction that can be had to a civil litigation. I will state the facts generally which are common to all these matters. 2. The suit, O.S.No.54 of 1984 was filed for declaration of title and for recovery of possession. It was decreed permitting the first defendant to retain the building in the plaint schedule property and 10 cents of property with the necessary easementary rights of access to the building. The court also granted a decree for recovery of possession of the remaining property on payment of compensation for the improvements effected by the defendants in the portion excepting the aforesaid 10 cents. The court did not grant any mesne profits also. It is against the decision challenging dis allowance of the tenancy right, the first defendant, who alone contested the case, filed an appeal as A.S.No.406/1995 : 2 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 before this Court and a learned Judge of this Court in the admission stage itself on 19th August, 1995 dismissed the appeal stating that the judgment of the trial court does not require any interference or in other words, A.S.No.406 of 1995 which was filed by the 1st defendant with respect to the question of tenancy was found against and therefore the question of tenancy claimed by the first defendant had become final as no other appeal or special leave is preferred against that judgment passed by this Court. The first defendant cannot claim any exoneration from the same. 3. As stated by me in the opening paragraph, mesne profits were not allowed and value of improvements were ordered to be paid to the defendants and against that finding the plaintiffs filed an appeal, A.S.No.591/1995. A learned Judge of this Court on a consideration of the entire materials found that the first defendant and his legal representatives are not entitled to claim any value of improvements and also found that possession of the : 3 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 defendants are not authorised possession and therefore directed mesne profits also to be granted with a further direction to consider the quantum at the stage of the execution proceedings. 4. A cross objection is filed by defendants 3 to 10 in the appeal challenging the finding of tenancy. It has to be remembered that the case set up by the first defendant in the suit is to the effect that he is the tenant of the property. Defendants 2 to 10 did not claim any right over the property nor did they file any written statement contesting the case. So an adjudication was done with respect to the tenancy right of the first defendant. Defendants 2 to 10 on the death of the first defendant can only step into his shoes and no better contentions are available to them than that of the first defendant. 5. So far as the tenancy right is concerned, this Court in A.S.No.406/1995 had confirmed the judgment and decree in O.S.No.54/1984 and therefore found against the first : 4 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 defendant's tenancy right. Defendants 2 to 10 cannot again challenge the same in the form of a cross objection when they cannot claim better right than the first defendant and that they have only stepped into the shoes of the first defendant and so the decision rendered against the first defendant is binding on them and so the cross objection does not merit consideration. 6. The next point is regarding review of the judgment in A.S.No.591/1995. A learned Judge of this Court had considered the matter exhaustively and held that the defendants are not entitled to claim right under Kerala Compensation for Tenants Improvements Act, 1958 and further that they will not come within the category of tenants and further disallowed value of improvements and further held that since their possession is not lawful, the plaintiffs are not entitled to mesne profits. 7. The learned counsel for the review petitioner would contend that this Court had not considered his contention and : 5 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 therefore the matter requires review. The learned counsel would contend that there was an earlier suit between the parties and in that suit there was a finding to the effect that the defendants are entitled to value of improvements. I think it requires a little discussion. 8. The earlier suit, O.S.No.79/1975 was filed with reference to two items of property. One item of property was a house and 10 cents surrounding the same and the second item of property was the remaining land wherein the plaintiff claimed recovery with respect to item 1 and injunction with respect to item 2. On a consideration of the materials, it was found that the 1st defendant is entitled to be in possession of item 1 of the property and therefore no recovery can be granted and the court further found that the injunction also cannot be granted for the reason that the plaintiff has not proved his possession. It is interesting to note that when an appeal was preferred as A.S.No.41/1979 before the Subordinate Judge's Court, Pathanamthitta, the : 6 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 learned appellate judge had gone extraneous to the matters involved in the case and had given an observation that the defendants in the suit are entitled to value of improvements. It has to be borne in mind that there was no issue between the parties regarding value of improvements in that case at all. The question which arose for consideration was whether the plaintiffs were in possession of the suit property on the date of the suit and it was found that they have not succeeded in proving and so the relief with respect to that item was negatived. It is true that in S.A.No.963/1981 this Court confirmed the judgment of the appellate court. In review also it was reaffirmed. But this Court has not entered into any finding or discussion with respect to the value of improvements. It has to be stated that in order to apply the principles of res-judicata it is fundamental that the issue must be direct and substantial. In a case of recovery with respect to 10 cents and injunction with respect to 3.25 acres and as there were no pleadings with : 7 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 respect to claim for value of improvements, it was absolutely foreign to the court to have entered into a discussion and it has been wrongly committed by the appellate judge in A.S.No.41/1979. So, the observations or findings in A.S.No.41/1979 cannot operate as a bar or a conclusive finding because it was not to be decided in a proceedings of that nature. Therefore these two judgments will not entitle the defendants to raise a contention of that nature. 9. Now let me consider the other contentions. The learned counsel for the review petitioner had taken me through the provisions of the Kerala Compensation for Tenants Improvements Act and various provisions. I had to say that this Court is only expected to exercise the jurisdiction which is conferred under Order 47 Rule 1 of the C.P.C. Under Order 47 Rule 1 of the C.P.C unless there is an error apparent on the face of the record or certain materials that has come into being later which the party could not have produced in spite of due diligence a : 8 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 review cannot be allowed. 10.Now the contention regarding value of improvements had been considered by the learned Judge in A.S.No.591/1995. This Court is not competent to enter into the correctness of the reasoning given by a learned judge. The learned counsel then appearing for defendants 2 to 10 had exhaustively argued the matter and had brought the relevant provisions also to the notice of the court. It can also be seen that the court also had taken into consideration those provisions including definition of tenancy under Section 2 (d) of the Kerala Compensation for Tenants Improvement Act, 1958. The court held that the first defendant had no case that he was a lessee or sub lessee. He had also no case that he came into possession of the property under the bonafide belief that he is entitled to make such improvements. Therefore the court held that unless that contention is proved, he cannot be treated as a tenant. So the court has applied its mind to the relevant : 9 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 materials and held that unless he satisfies the definition of a tenant under Section 2(d), he will be out of the coverage under the Kerala Compensation for Tenants Improvement Act. Even if I have got different reasonings, I cannot substitute it in this case for the reason that a learned Judge has given his version and interpretation of the same on the materials and facts available before him at that stage. 11. Therefore any further consideration of the matter in a different perspective at this stage cannot be done by a judge exercising jurisdiction of review. Unless it is an error apparent on the face of the records, there cannot be any review. So, I do not find any merit in the review application and therefore, it is dismissed. From these discussions I hold that the review application as well as the cross objection do not merit consideration and therefore they are dismissed. M.N. KRISHNAN, JUDGE. cl : 10 : R.P.NO.945 OF 2008 & CROSS OBJECTION NO.97 OF 2010 in A.S.NO.591 OF 1995 M.N. KRISHNAN, J. ........................................... A.S.NO.389 OF 2001 ............................................. 8th day of October, 2010. J U D G M E N T