IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 RP.No. 917 of 2009() -------------------- AGAINST THE JUDGEMENT IN RSA.229/2009 Dated 20/07/2009 .................... REVIEW PETITIONER/:APPELLANT ------------------------------- THANIMA PACHAKA SAMBHARANA VITHARANA SAHAKARANA SANGAM, REG.NO.D-2483, REPRESENTED BY ITS SECRETARY, KERALA BHAVAN BUILDING, G.H.ROAD, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN RESPONDENS/RESPONDENTS: --------------- 1. K.P.RATNA SINGH, S/O.K.P.KORUKUTTY, RESIDING AT RATNA NIVAS, KURIYAL LINE, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. 2. K.P.TESSY, D/O.K.P.KORUKUTTY, RESIDING AT RATNA NIVAS, KURIYAL LINE, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. 3. K.P.SOBHANA, W/O.LATE KORUKUTTY, RESIDING AT RATNA NIVAS, KURIYAL LINE, NAGARAM AMSOM AND DESOM OF KOZHIKODE TALUK. 4. SOFIYA, W/O.BHAGATH SINGH, RESIDING AT THIRUSHUKKAL HOUSE, THIRUTHIYAD, KALATHINKUNNU AMSOM DESOM, KOZHIKODE TALUK. 5. SHOBHIKA, D/O.BHAGATH SINGH, RATNA NIVAS, KALATHINKUNNU AMSOM DESOM, KOZHIKODE, MINORS, REPRESENTED BY MOTHER AND GUARDIAN. 6. GOPIKA, D/O.BHAGATH SINGH, RATNA NIVAS, KALATHINKUNNU AMSOM DESOM, KOZHIKODE, MINORS, REPRESENTED BY MOTHER AND GUARDIAN. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 08/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID,J. --------------------------- R.P.NO.917 OF 2009 IN R.S.A.NO.229 2009 --------------------------- DATED THIS THE 8th DAY OF OCTOBER, 2009 O R D E R This Court by judgment dated 20th July, 2009 dismissed the appeal finding that there is no scope for invoking the jurisdiction of this Court under Section 100 of the C.P.C. and further held that no question of law much less any substantial question of law arises for consideration in this appeal. 2. The sole defendant/appellant filed this petition to review the judgment on the ground raised therein. According to the learned counsel for the review petitioner, there are errors apparent on the face of record. The learned counsel submitted that this Court failed to consider the relevancy of the document produced before this Court along with I.A. No. 457/2009. According to him, the additional document produced along with I.A.No.457/09 would go to show that the contesting respondents -2- R.P.No.817/2009 IN R.S.A.No.229/2009 as well as other co-owners have lost title over the plaint schedule property and therefore the petition to review of the judgment under appeal may be allowed. The counsel also contended that the suit filed by the co-owners without arraying the other co- owners as parties is not maintainable. The counsel for the review petitioner also questioned the amount fixed at Rs.3,20,380/- as his liability for the arrears of licence fees and damages for use and occupation. The learned counsel for the review petitioner relied on the decision reported in Sabitri Dei and others v. Sarat Chandra Rout and others ((1996) 3 SCC 301) in support of his contention. The Second Appeal was heard in detail and the judgment was rendered by this Court, after considering the contentions of the respective parties. This Court examined whether the appellant raised any substantial question of law to be answered by this Court. This Court found that the findings entered by the trial court as well as the Appellate Court were based on the facts and therefore no interference is possible -3- R.P.No.817/2009 IN R.S.A.No.229/2009 under Section 100 of the C.P.C. 3. Annexure-I judgment dated 23/3/2009 is produced after the dismissal of the Second Appeal. At the time of hearing the Second Appeal, the learned counsel brought to the notice of this Court Annexure-1 judgment now produced. So, the statement in the review petition that he could not brought to the notice of this Court Annexure-1 judgment, since it was not within the knowledge of the review petitioner, was not correct. In fact, the judgment pronounced by this Court produced as Annexure-1 was brought to the notice of this Court. This is not a case where Annexure-1 judgment is not within the knowledge of the review petitioner and therefore the ground urged on the basis of Annexure-1 judgment cannot be entertained in a petition filed under Order 47 Rule 1 of the C.P.C. On merits also I have gone through Annexure-1 judgment rendered by this Court. I find that the contention of the review petitioner that the contesting respondents as well as the other co-owners have lost title over the -4- R.P.No.817/2009 IN R.S.A.No.229/2009 plaint schedule property by virtue of Annexure-1 judgment is not correct. This Court decides the question whether the contesting respondents have lost title to the property by virtue of the auction sale. This Court did not examine whether the auction was conducted in excess of the share of the 3rd respondent. This Court only held in paragraph 4 of Annexure-1 judgment that if the property sold is in excess of the share allotted to Sobhana, necessarily, the other sharers or legal heirs of Sobhana could very well seek for equitable relief, if they are otherwise entitled to, in the partition suit, for allotment of other property, if any, belongs to Shobana. This Court only clarified that “the dismissal of their clams in the present proceedings will in no way affect their claim for equitable relief in other proceedings”. So on merits also, I do not find any reason to review of the judgment under appeal. The other question now canvassed as to whether the review petitioner is a lessee or licensee is the question agitated before the fact finding courts. The fact finding courts held that the review -5- R.P.No.817/2009 IN R.S.A.No.229/2009 petitioner is a licensee and he came into occupation of the property under a party receiver appointed by the court. This Court also examined the question and held that the finding of fact regarding the status of the review petitioner cannot be interfered with. The other questions now raised in the review petition were also examined by this Court and found that those questions were decided by the fact finding courts on facts. In the Second Appeal the other grounds urged by the review petitioner were decided on merits and they are questions touching on the merits of the case. I find no reason to interfere with the judgment rendered by this Court in the Second Appeal. Review Petition stands dismissed. HARUN-UL-RASHID, Judge. kcv.