IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 RP.No. 554 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN RSA.314/2010 .................... PETITIONER/APPELLANT: ------------------------------- NARAYANANKUTTY NAIR , AGED 69 YEARS, S/O.KUTTIPENNAMMA, MADAMBATH VEEDU, KINANELLUR, PALAKKAD. BY ADV. NARAYANANKUTTY NAIR(PARTY-IN-PERSON) RESPONDENTS/RESPONDENTS: --------------- 1. RAMANKUTTY NAIR @ P.R.KUTTY AGED 72 YEARS, S/O.KUTTIPENNAMMA, 1555, SECOND STAGE, RAJAJI NAGAR, BANGALORE. 2. V.M.KAMALAKSHMI AMMA, AGED 87 YEARS, D/O.BHARGAVI AMMA, GOPALA MANDIRAM, KUNAVALLUR, PALAKKAD. 3. V.K.PADMANABHAN, AGED 56 YEARS, S/O.CHINNAMANI AMMA, GENERAL MANAGER, THRISSUR COTTON SWEING MILLS (P) LTD, NATTIKA, THRISSUR. 4. APPUKUTTAN (DIED) 5. SIKAMANI, AGED 63 YEARS, S/O.CHARALS SECOND MAIN STONE, BUS STOP, KINAVALLUR, PALAKKAD. 6. V.V.KANNAN, AGED 40 YEARS, S/O.VASU, VILWANKADU, KINAVALLUR AMSOM, PALAKKAD. 7. PUSHPA, W/O.APPUKUTTAN,. 8. ANILKUMAR, S/O.APPUKUTTAN,. 9. ANITHA K.A, D/O.APPUKUTTAN, (RESPONDETNS 7 TO 9 ARE RESIDING AT NJARAKKOTTU VEEDU, MANGAKKADU, KINAVALLUR. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 19/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.P.No. 554 of 2010 in R.S.A.No.314 of 2010 --------------------------------------- Dated this 19th day of July, 2010 ORDER This petition is in review of judgment dated March 22nd, 2010 in R.S.A.No.314 of 2010. When that second appeal came up for hearing on admission I heard petitioner/appellant who appeared in person and dismissed the second appeal since no substantial question of law was involved. Petitioner seeks review of judgment and decree of this court dated 22-03-2010. 2. Petitioner though sought time to engage counsel and it was granted, today he appeared and stated that he himself is arguing the matter and accordingly I heard petitioner in person. He states that this court while disposing of the second appeal has not adverted to all the relevant documents and it was without summoning original records from the trial court that the second appeal was disposed of. Petitioner referred to the documents marked on his side as Exts.A1 to A15 and argued at length to convince this court that judgment dated 22-03-2010 requires reconsideration. R.P.No.554 of 2010 in R.S.A.No.314 of 2010 : 2 : 3.Petitioner/appellant/plaintiff sued respondents/defendants for partition of plaint A and B schedules. It is his case that plaint A and B schedule belonged to Puthumana in jenm wherefrom it was taken as kudiyiruppu by Kuttipennamma, predecessor-in- interest of petitioner and respondent No.1 and her brother the late Govinda Panicker (predecessor-in-interest of respondent No.2). It is his further case that while so, there was partition between Kuttipennamma and Govinda Panicker as per document No. 208 of 1937 as per which plaint A schedule was allotted to the share of Kuttipennamma and plaint B schedule was allotted to the share of Govinda Panicker. Govinda Panicker created lease over plaint B schedule in favour of Kuttipennamma on 07-07-1938 and thus lease hold right over plaint B schedule belonged to Kuttipennamma. On the death of Kuttipennamma that right devolved on petitioner and respondent No.1. It is accordingly that partition of plaint A and B schedules was demanded. Trial court found that there was acceptable evidence to prove the alleged lease over plaint B schedule, granted partition decree for plaint A schedule among petitioner and respondent No.1 but dismissed the suit to the extent it concerned plaint B schedule. Appellate court has confirmed that judgment and decree. This court after hearing petitioner came to the conclusion that no substantial question of law is involved and R.P.No.554 of 2010 in R.S.A.No.314 of 2010 : 3 : accordingly dismissed the second appeal. Now question is whether there is any error apparent on the face of the record or any other circumstance stated in Order 47 Rule 1 of the Code of Civil Procedure (for short, “the Code”) requiring this court to review the judgment dated 22-03-2010. 4. It is true that petitioner had produced in the trial court certain documents to prove the alleged lease over plaint B schedule in favour of Kuttipennamma but courts below found that the said documents are not properly proved and that PW3, witness who was examined to prove the said documents was not able to identify the disputed signature in the said documents. Courts below also observed that PW3 was aged 80 years when she gave evidence and on account of defect in vision she was not even able to identify disputed signatures. When the plaint was handed over to PW3 in cross examination, she stated that it was written by the late Govinda Panicker who expired several years prior to the institution of suit. In the situation which PW3 was placed courts below were not inclined to accept the documents relating to the alleged lease and which were attempted to be proved through PW3. On the other hand respondent No.2 produced purchase certificate issued by Land Tribunal in her favour. Courts below also observed that purchase certificate is conclusive as regards claim of respondent No.2 consequent to the R.P.No.554 of 2010 in R.S.A.No.314 of 2010 : 4 : death of Govinda Panicker. In so far as petitioner has no case that the purchase certificate was obtained by fraud or collusion and that purchase certificate is not under challenge in the present litigation also, it should stand. A further fact that courts below noted is that respondent No.2 had filed O.S.No.303 of 1970 against petitioner and obtained a decree for prohibitory injunction restraining petitioner from trespassing into plaint B schedule. Petitioner claimed that even after the decree against him he is in possession of the property and on 19-09-1986 he was dispossessed by respondent No.2 and others with the assistance of police. Courts below observed that if petitioner was allegedly dispossessed on 19-09-1986, suit for partition including plaint B schedule came only in the year 1993, a conduct which is normally not expected from a person who claimed to have been in possession of the property. It is also pointed out by the courts below that none of the documents relied on by petitioner to prove claim of tenancy over plaint B schedule were produced in O.S.No.303 of 1970 and hence there is reason to think that those crucial documents came into existence only after judgment and decree in O.S.No.303 of 1970. Courts below held that the disputed documents are not properly proved. In these circumstances courts below found that claim of petitioner over plaint B schedule on the strength of alleged lease allegedly R.P.No.554 of 2010 in R.S.A.No.314 of 2010 : 5 : created by Govinda Panicker in favour of Kuttipennamma is not sustainable. It is after consideration of these aspects that this court found that concurrent finding entered by the courts below requires no interference as it is based on evidence, facts and circumstances of the case, no substantial question of law is involved and hence second appeal does not merit admission. I have heard arguments advanced by petitioner and contentions raised in the petition for review, all of which relate to a challenge to the judgment and decree of this court on merit. Review is not a substitute for an appeal, nor an opportunity for re-hearing. I do not find any circumstance referred to in Order 47 Rule 1 of the Code to review the judgment under challenge. Review petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-