IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 26TH MARCH 2010 / 5TH CHAITHRA 1932 RP.No. 284 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN SA.25/1996 .................... REVIEW PETITIONER/RESPONDENTS: ---------------------------------- 1. NAGESH KAMATH, S/O.BHASKARA KAMATH MERCHANT, JALSOOR ROAD, KASBA VILLAGE, KASARAGOD. 2. M/S.K.VASUDEVA KAMATH & COMPANY REPRESENTED BY NAGESH KAMATH, JALSOOR KASARAGOD VILLAGE, P.O.KASARAGOD KASARGOD TALUK. BY ADV. SRI.P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE SRI.K.MOHANAKANNAN RESPONDENTS/APPELLANTS: -------------------------- 1. BEEPATHUMMA, W/O.MOHAMMED ISMAIL RESIDING NEAR GOODS SHED CROSS ROAD MANGALORE, DEKSHINA KARNATAKA. 2. ASYAMMA, W/O.DR.AHAMAD MORGAL RESIDING AT MOGRAL, MOGRAL VILLAGE KASARAGOD TALUK. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 26/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.P.No.284 of 2010 in S.A.No.25 of 1996 --------------------------------------- Dated this 26th day of March, 2010 ORDER Respondents in the second appeal have sought review of judgment and decree of this court dated 05-01-2010 on the ground, among other things that when a person makes available an interest which belonged to him into a partnership firm including himself, it does not involve any transfer and it is only that property of the individual is brought into the common stock of the partnership firm. Learned Senior Advocate contends that this important aspect of the matter was not considered by this court while deciding the second appeal. Learned Senior Advocate has placed reliance on the decisions in P.J.Jacob Vs. T.J.Jacob (1977 KLT 224) and Amarnath Agarwalla Vs. Dhillon Transport Agency (2007(4) SCC 306. Learned counsel for respondents (in the review petition) would contend that said question was also considered by this court and it was held that so far as respondents are concerned, the partnership firm (petitioner No.2) of which the original lessee is said to have been a partner is a different legal entity unconnected with the lessee and hence petitioners are not entitled to the protection of Section 106 of the Kerala Land Reforms Act (for short, “the Act”). R.P.No.284 of 2010 in S.A.No.25 of 1996 2 2. The case is that plaint A schedule property was let out to one Sarvothama Kamath by the predecessor-in-interest of respondents as per a registered lease deed dated 13-04-1951 for a period of 35 years and reserving an annual rent of Rs.50/-. Respondents who inherited the suit property sought eviction of petitioners, a partnership firm and its partner on the expiry of the period of lease. The partnership firm and the partner (petitioners in the review petition) sought protection of section 106 of the Act. Courts below found in favour of petitioners and refused to order eviction. That judgment and decree were under challenge in the second appeal. In this court it was argued on behalf of the respondents that petitioners (respondents in the second appeal) could not seek protection of section 106 of the Act since it is not a case where the structures were put up by the lessee but by a partnership firm (petitioner No.2) which had nothing to do with the lease. This court held that the lease was in favour of Sarvothama Kamath as per registered lease deed and hence so far as the landlords are concerned lessee is the said Sarvothama Kamath. Petitioners had no case that the impugned constructions were made by the lessee or by the petitioners on behalf of the lessee. Instead, their contention was that Sarvothama Kamath obtained the lease for and on behalf of petitioner No.2, the partnership firm and that the said partnership firm put up the structures. This court held that there was no privity of contract between the landlord and petitioner No.2 and that R.P.No.284 of 2010 in S.A.No.25 of 1996 3 Sarvothama Kamath at the time of lease was or later became a partner in petitioner No.2 made no difference so far as contractual relationship between the landlord and Sarvothama Kamath was concerned. This court held that hence the only person who could claim protection of section 106 of the Act is Sarvothama Kamath. This court also held that being a partner of petitioner No.2., Sarvothama Kamath could have probably successfully resisted an attempt for his eviction on the ground of sublease but that did not enable petitioner No.2 to claim protection of section 106 of the Act. This court also considered the question whether petitioners could be treated as assignees of Sarvothama Kamath, the lessee invoking explanation to section 106 of the Act in view of Ext.B1, copy of registered assignment deed executed by the legal representatives of Sarvothama Kamath in favour of petitioner No.2. This court held that Ext.B1 is not an assignment of leasehold right of Sarvothama Kamath which devolved on his legal representatives consequent to his death and hence in that way also petitioners could not claim protection of section 106 of the Act. This court held from the evidence that as the structure was put up by petitioner No.2 which was neither the lessee nor assignee of the lessee it could not claim protection under section 106 of the Act. Now, the ground urged for review is that Sarvothama Kamath, the lessee had brought his leasehold right in the suit property into the partnership (petitioner No.2) of which he was a partner and hence that does not R.P.No.284 of 2010 in S.A.No.25 of 1996 4 amount to an assignment. It is for the above purpose that learned Senior Advocate had placed reliance on the decisions (surpa). Question considered in those decisions was whether a lessee who formed partnership with others could be evicted on the ground of sublease. It was held that it was not a case of transfer of exclusive possession of the demised premises in favour of the partnership firm in which lessee continued to be a partner and hence eviction cannot be ordered on the ground of sublease as it was not a case of lessee assigning his leasehold interest in favour of the partnership firm. 3. In fact, the question now raised was considered by this court in paragraph 6 of the judgment sought to be reviewed. This court opined that such a defense could have been raised by sarvothama kamath if his eviction was sought for on the ground of sublease but petitioners cannot seek protection of section 106 of the Act as they are neither the lessee nor assignees of the lessee and as the construction was made not by the lessee but by petitioner No.2 who had no privity of contract with the landlord. 4. The decision of this court rest on the finding that to avail protection of section 106 of the Act, construction has to be made by the lessee, his legal representatives or assignee as the explanation to section 106(1) of the Act says whereas, in this case it is admitted that construction was not made by the lessee, his legal representative or assignee and there is no case of assignment of leasehold right in R.P.No.284 of 2010 in S.A.No.25 of 1996 5 favour of petitioners. 5. A review is not a substitute for an appeal. Even an erroneous decision on merit cannot be the subject matter of a review. A review is permitted when there is a mistake or error apparent on the face of record or when any of the other grounds mentioned in Order 47 Rule 1 of the Code of Civil Procedure (for short, “the Code”) exist. No error can be said to be apparent on the face of record if it required a long drawn reasoning to establish it (See Kurian Varghese Vs. State of Kerala (1989 (2) KLJ 723) and Delta foundations & Constructions Vs. K.S.C. Corporation (2003(1) KLT 626). “Error apparent on face of record” means an error which strikes one on mere looking at the record (See Meera Bhanja Vs. Nirmala Kumari Choudhury (AIR 1995 SC 455). I have gone through the judgment sought to be reviewed and the grounds urged in this petition. What is urged is virtually a rehearing of the appeal itself. But a review court cannot act as an appellate court. I am satisfied that there is no mistake or error apparent on the face of record or any other reason as provided under order 47 Rule 1 of the Code to justify a review. This petition is therefore dismissed but without any order as to costs. THOMAS P JOSEPH, JUDGE Sbna/