IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 RP.No. 1155 of 2008() --------------------- AGAINST THE JUDGEMENT IN RSA.715/2008 DATED 29/08/2008 A.S.NO.34/07 OF THE I ADDL. SUB COURT, THIRUVANANTHAPURAM. O.S.NO1615/02 OF THE RENT CONTROL COURT (ADDL, MUNSIFF), THIRUVANANTHAPURAM .................... REVIEW PETITIONER/ APPELLANTS: --------------------------------- 1. THANKAMMA, D/O.KUNJAMMA, CHUNDAVILA VEEDU, KAVALOOR, K.T.V.NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. MADHAVI, D/O.KUNJAMMA, CHUNDAVILA VEEDU, KAVALOOR, K.T.V.NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENTS/ RESPONDENTS: --------------------------- 1. SUKUMARAN, S/O.KUTTAN, APPOOS BHAVAN, T.C.33/513, KAVALOOR, K.T.V.NAGAR , VATTIYOORKAVU, THIRUVANANTHAPURAM. 2. KRISHAMMA, D/O.MEENAKSHI, ANATH BHAVAN, KONDODIKUZHAKKUMKARA, NACHAL P.O., VALIYARATHALA, THIRUVANANTHAPURAM. 3. LEELA, D/O.MEENAKSHI (DIED). 4. KRISHNAN, S/O.SANKAR, SREECHAKRAM, KAVALOOR, K.T.H.NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM. 5. SARADHA, D/O.MEENAKSHI, RADHIKA VILASAM, KAVALLOOR, K.T.N NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM. 6. JAYAPALAN, S/O.APPUKUTTAN, CHITRA BHAVAN, THITTAVELIKKARA, MADAVOORPPARA, BALARAMAPURAM P.O. -2- R.P.No.1155/2008 7. SATHYAN, S/O.APPUKUTTAN, SHAJI NIVAS, MANNAMMOODU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 8. SOMARAJAN, S/O.APPUKUTTAN, V.K.P. NAGAR, KANJIRAMPARA, THIRUVANANTHAPURAM. 9. RAJENDRA BABU, S/O. KUNJUKRISHNAN, CHUNDAVILA VEEDU, KAVALOOR, KTV NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM. 10, REMA, D/O.KAMALAMMA, POWER VIEW, PANGAPPARA P.O., THIRUVANANTHAPURAM. 11.AMBIKA, D/O.KAMALAMMA, -DO- -DO- 12.VASANTHA KUMARY, D/O.OMANA, ROY BHAVAN, KAVALOOR, KTV NAGAR,VATTIYOORKAVU, THIRUVANANTHAPURAM. 13. ROY, S/O.ACHUTHAN, ROY BHAVAN, KAVALOOR, K.T.V. NAGAR, VATTIYOORKAVU, THIRUVANANTHAPURAM.. 14. VALSALAKUMARI, D./O. OMANA, ROY BHAVAN, KAVALOOR -DO- -DO- 15. ANITHA, D/O.OMANA, -DO- -do- 16. MADHUSOODHANAN, S/O, APPUKUTTAN, SHAJI NIVAS MANNAMMOODU, VATTIYOORKAVU, THIRUVANANTHAPURAM. 17. UNNIKRISHNAN, KIZHAKKEVILA, KAVALOOR, VATTIYOORKAVU, THIRUVANANTHAPURAM. 18, THANKAMONY, @ THANKAM, KIZHAKKEVILA, KAVALOOR, VATTIYOORKAVU, THIRUVANANTHAPURAM. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.P.NO. 1155 2008 IN R.S.A.NO.715 OF 2008 --------------------------- DATED THIS THE 7TH DAY OF AUGUST, 2009 O R D E R In a suit for partition the trial court passed a decree declaring that the lst plaintiff and defendants 1 and 2 are entitled for partition and separate possession of their 1/7 share each of the plaint schedule property. Plaintiffs 2 to 5 together are alloted one share. Plaintiffs 6 to 8 and 7th defendant together are allotted one share and plaintiffs 9 to 11 together one share. The 2nd defendant in the suit, who is also a co-owner, filed a counter claim contending that he was enjoying the property in derogation of the right and interest of other sharers and that by his long, continued, hostile and uninterrupted possession, he perfected title and therefore the suit for partition is not maintainable and his title shall be declared. Along with the issues raised by the parties in the suit, the trial court considered independently the counter -2- R.P.No.1155/2008 claim and held that there is no evidence to prove the claim set up by the 2nd defendant and there is no evidence in proof of ouster of the plaintiffs and other sharers from sharing the plaint schedule property. Therefore, the declaration sought for in the counter claim was repelled by the trial court. 2. Defendants 1 and 2 preferred first appeal with a petition to condone the delay of 721 days. The Appellate Court considered the delay petition elaborately and held that there is no justification for the defendants 1 and 2 not to prefer the appeal in time. There is wilful negligence and deliberate inaction on the part of the appellants and therefore the Appellate Court held that no indulgence is to be shown to the appellants to entertain the belated appeal allowing them to perpetuate possession over the plaint schedule property to the detriment of the interest of other sharers. The delay petition was dismissed. Consequently, the appeal was also dismissed. In the second appeal preferred by the said appellants this Court considered the question as to whether -3- R.P.No.1155/2008 there is any reason for condonation of delay. This Court also examined the attendant circumstances discussed by the trial court and held that no sufficient cause is shown for condonation of delay and the object behind the filing of appeal belatedly before the lst appellate Court is to protract the proceedings, so that they can enjoy the property for considerable length of time on taking advantage of the procedure established by law. This Court dismissed the appeal in limine. 3. Defendants 1 and 2, who are the appellants in the second appeal, filed this review petition seeking review of the judgment in the Second Appeal. I have examined the contentions of the appellants and also the reasonings of the trial court in passing the decree for partition. It is not in dispute that the property belongs to 7 children, who are the legal heirs or parties to the suit. The trial court passed a decree for partition. The only dispute raised by the review petitioners/appellants is that they have perfected title by adverse possession. That question was -4- R.P.No.1155/2008 examined and the contentions were discussed and for want of proof the trial court held that there is no merit in the contention and therefore the counter claim was dismissed. So for the reason that there is no explanation or sufficient cause for condonation of delay, the dismissal of the second appeal was inevitable. The very same contentions raised in the first appeal and in the second appeal were again raised by the appellants in this review petition. I do not think that the appellants/review petitioners have made out any ground to review the judgment of this Court on touching the merits of the case and the cause for condoning the delay. The review petition is devoid of any merit and accordingly it is dismissed. The dismissal of this review petition, second appeal and the first appeal will not stand in the way of the appellants approaching the final decree court while making division of the property, if advisable. If an application is filed before the final decree court, the same shall be considered and the court shall -5- R.P.No.1155/2008 work out equity for the reason that the 2nd defendant is a resident of the very old building, only if the final decree proceedings are pending before the court. HARUN-UL-RASHID, Judge. kcv.