IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 RP.No. 1124 of 2010 in AFA NO.40 OF 2001() ------------------------------------------------------------- (AGAINST THE JUDGEMENT/ORDER IN AFA.40/2001) .................... PETITIONER/2ND APPELLANT: ------------------------------------------- K.R.RAMANI, D/O.LATE MANATHARA RAMAN, KALAPPAL HOUSE, PUTHUPALLIPPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O., KOCHI 682 024. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE RESPONDENTS/RESPONDENTS: --------------------------------------------- 1. THANKAPPAN, S/O.OLIPARAMBIL RAMAN, OLIPARAMBIL HOUSE, PUTHUPALLIPPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O., KOCHI 682 024. 2. RAJAPPAN, OLIPARAMBIL HOUSE, PUTHUPALLIPPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O., KOCHI 682 024. 3. AMMINI, MUKHAMPARA HOUSE, KIZHAKKAMBALAM P.O., 683 562. 4. AMMALU, MATHAPPILLI HOUSE, CHERAI P.O. 683 514. 5. RADHA, PULIKKAL HOUSE, PARAYAD, N. PARUR P.O. 683 513. 6. KARTHIYAYANI, MUTHUMAN HOUSE, VALAMKARA, CHITTOOR P.O., CHERANALLOOR VILLAGE 682 027. 7. SREEDHARAN, MUDUKAPPILLIL HOUSE, PUTHUPPALLIPURAM KARA, EDAPPALLY P.O., COCHIN 682 024. 8. SUKUMARAN, MUDUKAPPILLIL HOUSE, PUTHUPPALLIPURAM KARA, EDAPPALLY P.O., COCHIN 682 024. R.P.NO.1124/2010 IN AFA.No. 40 of 2001 ( G ) ------------------------------------------------------------- 9. THANKAMMA, KALLIYATTIL HOUSE, NEAR THAIKUDAM CHURCH, VYTTILA, COCHIN 682 019. 10. BHARGAVI, THALIPPARAMBIL HOUSE, PUTHUPPALLIPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O., COCHIN 682 024. 11. BINZA, THALIPPARAMBIL HOPUSE, PUTHUPPALLIPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O., COCHIN 682 024., 12. DINESAN, THALIPPARAMBIL HOUSE, PUTHUPPALLIPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O., COCHIN 682 024. 13. SABU,, THALIPPARAMBIL HOUSE, PUTHUPPALLIPURAM KARA, THRIKKAKARA NORTH VILLAGE, EDAPPALLY P.O, COCHIN 682 024. 14. NARAYANI, THAIPARAMBIL SURESH BHAVAN, PUTHUPPALLIPPURAM KARA, EDAPPALLY P.O. 682 024. 15. ASOKAN, THAIPARAMBIL SURESH BHAVAN, PUTHUPPALLIPPURAM KARA, EDAPPALLY P.O. 682 024. 16. BHAKTAVAISSIAN, THAIPARAMBIL SURESH BHAVAN, PUTHUPPALLIPPURAM KARA, EDAPPALLY P.O. 682 024. 17. SAJEEVAN, THAIPARAMBIL SURESH BHAVAN, PUTHUPPALLIPPURAM KARA, EDAPPALLY P.O. 682 024. 18. SASIKALA,THAIPARAMBIL SURESH BHAVAN, PUTHUPPALLIPPURAM KARA, EDAPPALLY P.O. 682 024. 19. AJITHA, AISWARYA TAILORS, GANDHI JUNCTION, ALATHUR, PALGHAT DISTRICT 678 541. 20. RADHA, MANATHARA HOUSE, VILAMKARA, CHERANELLOOR VILLAGE, CHITTOOR P.O. 682 027. 21. SHAJI, MANATHARA HOUSE, VILAMKARA, CHERANELLOOR VILLAGE, CHITTOOR P.O. 682 027. 22. SATHEESAN, MANATHARA HOUSE, VILAMKARA, CHERANELLOOR VILLAGE, CHITTOOR P.O. 682 027. 23. SUDHARMA RAJAN, MANATHARA HOUSE, VILAMKARA, CHERANELLOOR VILLAGE, CHITTOOR P.O. 682 027. BY ADVS. SRI.R.D.SHENOY, SENIOR ADVOCATE SRI.DEEPU THANKAN BY ADV. SRI.MILLU DANDAPANI, THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.12.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: vk Thottathil B.Radhakrishnan & P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.P.1124/2010 in A.F.A.40/2001 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of December, 2010. Order Thottathil B.Radhakrishnan, J. 1.This is an application seeking review of an order deciding the disputes in an appeal filed under Section 5 of the Kerala High Court Act against the judgment of the learned single Judge affirming the decree passed by the trial court. 2.Defendants 7 and 8 in a suit for declaration of title and recovery of possession on the basis of title challenged the decree passed by the trial court. Their contentions in the suit had been answered by the trial court holding specifically under issues 9 and 11 that the plaintiffs are entitled to succeed subject to the right of residence of defendants 7 and 8 and the adjoining RP1124/10 -: 2 :- land for the convenient residence in the house. 3.In fact, as rightly noticed by the learned single Judge in the first appeal, the plaintiffs had essentially conceded that the defendants are kudikadappukars regarding the residential building in plaint schedule item no.1. The learned single Judge did not uphold the cross objections filed by the plaintiffs that kudikadappu right is not conceded. The learned single Judge held that it is in evidence that even in 1975, one of the plaintiffs filed a petition against the mother of the appellants for shifting the kudikidappu and there also, kudikidappu right was conceded. Obviously, in terms of the Kerala Land Reforms Act, without conceding kudikidappu right, one cannot apply for shifting of a kudikidappu. The learned single Judge had also noted that the appellants (defendants 7 and 8) themselves do not claim to be kudikidappukars. But they are admittedly in occupation of the building. In fact, they had claimed a larger extent, and a much higher right. RP1124/10 -: 3 :- This is how the learned single Judge viewed the case of the appellants. Since they were found to be not entitled to any ownership right in the property, their possession was also held by the learned single Judge to be permissive. It was accordingly held that the learned Sub Judge was justified in reserving the kudikadappu right while ordering recovery of possession. All that the learned single Judge meant by saying so was that the appellants would be eligible to have reservation of such rights as to enjoyment as regards such appurtenant land as may be available to a kudikidappukaran, if the building in plaint schedule item no.1 is treated as a kudikidappu. 4.In the AFA, we did not find any ground to interfere with the findings of the learned single Judge or that of the trial court on the basis of the grounds raised at the time of hearing. 5.Yet, we found that there is lack of clarity or rather some incongruity between the decree drafted by the trial court and its judgment. We RP1124/10 -: 4 :- accordingly, for reasons stated in paragraph 16 onwards of the order dated 12th November, 2010, issued certain directions to conclude the litigation finally by giving the parties whatever would be due in terms of the decree of the trial court and the judgment of the learned single Judge, though the plaintiffs went to the extent of conceding that the appellants defendants could be given something more than what would be due in terms of the KLR Act. We say this because, as noted in paragraph 16 of that order in the AFA, the land being in a municipal area, the extent that would be available for a kudikidappu is 5 cents and the plaintiffs offered that defendants 7 and 8, who are the appellants, could take 7 cents. It was accordingly that the said directions were issued by delivering order immediately on closing of hearing of the AFA. 6.In fact, following the directions given in that order in the AFA, the Commissioner had also visited the site. RP1124/10 -: 5 :- 7.Now, the review petition is filed by the appellants-defendants 7 and 8 seeking review of the order. 8.The learned senior counsel appearing for the review petitioner argued that this Court could not have decided any question of kudikidappu in terms of the interdictions contained in Section 125(3) of the KLR Act, which position is beyond challenge, going by the decisions reported in Madhavi Amma v. Kesavan, 2008(1) KHC 951 and Ishwaragouda v. Mallikarjun Gowda, (2009) 1 SCC 626 and that no variance between decree and judgment of the trial court could have been rectified by the appellate court under Section 152 CPC without any application in that regard, particularly when there was no appeal by the plaintiffs. The learned senior counsel, however, quite candidly stated that the powers of the court may include the power to correct such matters as may be required to put the records appropriately. However, he stated that such power does not include the authority to correct the RP1124/10 -: 6 :- decree of the trial court and thereby take away any right that would have accrued in favour of defendants 7 and 8 even if there be any error in the decree. He further argued that there is really no error in the decree of the trial court when compared with the decretal portion of the judgment issued by the trial court. Another argument advanced before us is that in terms of Order 42 CPC, particularly Rule 2 thereof, without formulating a substantial question of law regarding that aspect, this Court could not have interfered with the matter as has been done. It is further argued that in terms of the Cochin Thiyya Act and Travancore Ezhava Act, the provisions at the relevant time were that illegitimate children would not fall within the category of clause 1 heirs and therefore, inheritance was impermissible and that such issue was also not considered. The learned senior counsel relied on the decision of the Apex Court in Century Textiles Industries Limited v. Deepak Jain, (2009) 5 SCC 634 and those of this Court in Sankaran Nair v. Parameswaran Nampoodiripad, 1969 RP1124/10 -: 7 :- KLT 462, Shyamalavalli Amma v. Kavalam Jisha, 2007 (3) KLT 270. 9.Per contra, the learned senior counsel appearing for the contesting respondents-plaintiffs argued that there is no error apparent on the face of the record of the order sought to be reviewed and the conflict between the trial court decree and judgment was apparent and this Court was essentially sitting in an appeal and all issues were open for consideration. He further pointed out that the questions referable to the Travancore Ezhava Act and Cochin Thiyya Act did not even survive for consideration in view of the finality as regards that issue inter partes in the earlier round of litigation and that this aspect has been specifically considered and dealt with in paragraph 12 of the order sought to be reviewed. It was also argued that in view of the clear findings of the trial court as understood and affirmed by the learned single Judge, there was no ground for any grievance for the review petitioners, who are only attempting to prolong RP1124/10 -: 8 :- the plaintiffs' enjoying the fruit of a litigation which commenced in the year 1988, that too, after an earlier round. He also argued that the provisions contained in Order 42 Rule 2 CPC would not apply to an intra-court appeal under Section 5 of the High Court Act and that this issue is covered by a Full Bench judgment of this Court in Venugopalan v. Malappuram Dist. Co- operative M.S.Union Ltd., 1995(2) KLT 200. 10.At the outset, we may say that the review petition does not proceed as if any ground argued at final hearing is left unconsidered. There was also no submission to that effect before us during the hearing of the review petition. All that was pointed out is that certain grounds in the memorandum of AFA were not considered in the appeal. It is well within the province of an appellant to press, or leave as not pressed any of the grounds of the appeal and the superior courts are not obliged to consider mixed questions of law and fact which are not raised and argued at the time of hearing. May be, a pure RP1124/10 -: 9 :- question of law which may affect the question of jurisdiction etc. may be open for consideration even if not raised. But it has to be, at least, pointed out at hearing. 11.In so far as the plea that the grounds referable to the provisions of the Cochin Thiyya Act and Travancore Ezhava Act were not considered, suffice to say that, as rightly pointed out by the learned senior counsel for the plaintiffs, the issue dealt with in paragraph 12 of the order sought to be reviewed is in answer to that. The review petitioners, who are the appellants, essentially challenged the title of the plaintiffs and their eligibility to seek declaration of title to the property. That defence was built on the plea of illegitimacy and the consequent support drawn from the provisions of the Cochin Thiyya Act and Travancore Ezhava Act. This Court held that the issue of title is no more available for consideration since it stands concluded by the earlier verdict inter partes. Therefore, that issue never arose and the RP1124/10 -: 10 :- fact that references to Cochin Thiyya Act and Travancore Ezhava Act were not specifically made in the order sought to be reviewed, is of no consequence. Equally, as already noticed, no such specific ground was argued at final hearing. 12.In as much as the plea that this Court was incapacitated by virtue of Section 125(3) of the KLR Act to consider the question of kudikidappu is concerned, suffice it to say that this Court never adjudicated on any claim of kudikidappu. This argument in this review petition is totally misplaced and misconceived. Even the learned single Judge had pointed out that the appealing defendants 7 and 8 claimed a larger right. It were the plaintiffs who were found by the trial court to have conceded the right of the defendants as kudikidappukars. That does not give rise to the requirement of any question of adjudication of kudikidappu. The use of the word 'kudikidappu' in the judgment of the learned single Judge and also in the order sought to be reviewed, is only for the purpose of RP1124/10 -: 11 :- understanding the extent and scope of the allotment of the land that could be made for the appellants-review petitioners to enable them to conveniently enjoy the building in plaint schedule item no.1. 13.Now, we will consider the plea as regards the applicability of Section 152 CPC. The learned single Judge was sitting in an appeal under Section 96 of CPC, against the decree of the trial court. The appeal under Section 5(ii) of the High Court Act lies to the Bench against the judgment of the learned single Judge. Therefore, the decree of the High Court comes only upon disposal of the AFA in cases where appeals are filed invoking Section 5 of the High Court Act. The power of the superior court to mould the relief in accordance with law is available under Order 41 Rule 33 of the Code and is not necessarily one that has to be dependent on the provisions of Section 152 of the Code. All that has been noted was that there is an apparent conflict between the decree as drafted by the RP1124/10 -: 12 :- trial court and the judgment, particularly paragraph 17 of the trial court's judgment. This does not mean that this Court, while making the order sought to be reviewed, was exercising the authority under Section 152. It was exercising its appellate powers, including that under Order 41 Rule 33 which is available while dealing with an appeal under Section 5 of the High Court Act. Any inappropriateness or vagueness in the decree granted by the trial court can be rectified by the appellate court, while deciding the appeal from the decree because the ultimate aim is to do justice. The findings in Ext.A32 relied on by us in paragraph 12 of the order sought to be reviewed had decided the question of title finally. The said decision is binding on all parties, including defendants 7 and 8, as held by us in the order sought to be reviewed. We do not find any ground in the review petition or any argument being advanced before us to the effect that injustice has resulted out of the procedure adopted. RP1124/10 -: 13 :- For the aforesaid reasons, we do not find any error apparent on the face of the record of the order sought to be reviewed or that the order is to be vacated for any other reason in exercise of power of review. The review petition fails. The same is accordingly dismissed. Thottathil B.Radhakrishnan, Judge. P.Bhavadasan, Judge. Sha/2212