IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 28TH JULY 2011 / 6TH SRAVANA 1933 RP.No. 514 of 2011() -------------------- AGAINST THE JUDGEMENT/ORDER IN SA.202/1999 Dated 28/02/2011 .................... REVIEW PETITIONER(S): APPELLANTS -------------------------------- 1. SAINABA, W/O.MOHAMMED, PALACKAL HOUSE, NJALAKAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 2. P.A.MOHAMMED, S/O.ABDUL KHADER, PALACKAL HOUSE, NJALAKAM KARA, THRIKKAKARA NORTH VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.M.P.KRISHNAN NAIR RESPONDENT(S): RESPONDENT ------------------------- C.J.JOSEPH THARAKAN, S/O.INASU THARAKAN, CHIRAMEL HOUSE, PUTHENPALLI, VARAPUZHA VILLAGE, PARAVUR TALUK. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 28/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: kkj P.BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - R.P.No.514 of 2011 in S.A.No.202 of 1999 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of July , 2011 O R D E R This review petition is directed against the judgment dated 28.02.2011 in S.A.No.202/1999 on the ground that there is error apparent on the face of the judgment in the second appeal. 2. The review petitioners were the defendants in the suit. It is claimed that they purchased 6.793 cents from the plaintiff in the suit on 05.12.1984. The appellants put up a multi-storied buildings in the property purchased by them. Alleging that the review petitioner has not constructed encroaching into her property, the respondent herein laid the suit. 3. The review petitioners resisted the suit. They denied that there was no encroachment of the construction into any portion of the property owned and possessed by the plaintiff. The claim made by the plaintiff over the “Thodu” was disputed. 4. The trial court after going through the evidence in the case found that there was encroachment as complained by the plaintiff and decree was granted in favour of the plaintiff. The defendants carried the matter in appeal as A.S.130/1995 and the plaintiff chipped in with cross objection. Both were dismissed. :2: R.P.No.514 of 2011 4. This Court, in the second appeal, after perusing the evidence, confirmed the decree of the trial court. In this review petition, it is pointed out that this court omitted to note the contentions taken by the appellants that while the construction was going on plaintiff stood by and watched and took no objection. It is also pointed out that the plaintiff also does not reside anywhere in the vicinity. It is also pointed out that this Court was not justified in accepting the findings of the trial court and lower appellate court, that the ” Thodu” was a part of the property owned by the plaintiff. It was also pointed out that the defendants should have been given the benefit of the Section 51 of the Transfer of Property Act. 5. None of the above contentions have any merit. All these aspects were considered by this court while disposing of the second appeal. One of the main contention herein of the second appeal was that first plaintiff had assigned this property and that he had no subsisting right. Being pendente lite transfer, it is not necessary to consider the said contention. It was on re -apreciation of the evidence, this Court has rcome to the conclusion that encroachment found by the court below were :3: R.P.No.514 of 2011 true. Court below have come to the conclusion on convincing reasons as to why Section 51 cannot be applied to facts of the case. This Court also found that the reasons given by the courts below are fully justified. In short, none other contentions taken in the review petition were omitted to be notified by this court while disposing of the second appeal. One has to say review petition is disguise for a rehearing of the appeal. This review petition is without any merit and accordingly dismissed. P.BHAVADASAN JUDGE kkj