IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 20TH AUGUST 2007 / 29TH SRAVANA 1929 CRP.No. 1254 of 1998(M) AGAINST THE ORDER DATED 21/03/1998 IN IA.NOS..277/96 & 278/1996 IN OS.3/1981 of SUB COURT, TIRUR REVN. PETITIONER: PETITIONER: PETITIONER: ------------------ THEKKATH KARAPPAN'S SON KUMARAN, KERALADHEESWARAPURAM AMSOM AND DESOM, TIRUR TALUK. BY ADV. SRI.T.R.RAVI RESPONDENTS: RESPONDENTS: RESPONDENTS: ------------- 1. ERIKKAMANNA KALARIKKAL SARASWATHI PANICKATHIAR, D/O.BALAN PANICKER. 2. UDHAYABHANU PANICKATHIYAR, -DO- 3. THAYYIL RADHA PANICKATHIYAR, D/O.KRISHNA PANICKER. 4. JAYAPRAKASH NARAYANAN PANICKER, S/O.BALAN PANICKER 5. PARANGOTT KUMARAN, S/O.THAMI, 6. ULLISSERI PADMANABHAN, S/O.PEECHU 7. SIVARAMAN CHETTIYAR, S/O.POTTEN THEYIKUTTY CHETTICHIYAR 8. CHERIYATTIL KUNCHI. 9. SANTHAKUMARI, D/O.VERUNKAL KARTHIYANI AMMA. 10. CHENIYATTIL PAMACHAN, S/O.CHOYI. 11. OLIYIL MOHAMMED @ BAVA. RESPONDENTS ARE RESIDING AT EZHUVATHURUTHY AMSOM, ERIKKAMANNA DESOM IN PONANI TALUK. R1 TO R4 BY ADV. SRI.K.RAMACHANDRAN SRI.K.MANU RAJ THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/08/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.M.P.NO.2511/1998 IN C.R.P.NO.1254/1998 DISMISSED 20/8/2007 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T. SANKARAN, J. ----------------------------------------- C.R.P. NO. 1254 OF 1998 D ------------------------------------------ Dated this the 20th day of August, 2007 O R D E R The petitioner in I.A.No.277 of 1996 in O.S.No.3 of 1981, on the file of the Court of the Subordinate Judge of Tirur, is the revision petitioner. He challenges the order dismissing the application for condonation of delay of more than fourteen years in filing the Review Petition seeking to review the preliminary decree in a suit for partition. 2. The revision petitioner is the 6th defendant in the suit. He contended that item Nos.5 and 7 of the plaint schedule properties are not partible, since those items were taken on lease by him in the year 1963 from one Krishna Panicker. Petitioner claimed that he is entitled to fixity of tenure. He also raised a contention that he got assignment of the rights of Krishna Panicker from his legal representatives. In the written statement filed by the petitioner/6th defendant, he not only raised the question of tenancy but also raised a contention that in equity the property in his possession may be allotted to the shore of the first defendant in the suit. 3. It would appear that there was consensus among the parties. C.R.P. NO.1254 OF 1998 :: 2 :: Accordingly, the counsel for the revision petitioner gave up of the contention of equity and reservation and an endorsement was made to that effect. Accordingly, a preliminary decree was passed. 4. At the final decree stage, the question of tenancy was referred to the Land Tribunal. The Land Tribunal held that the revision petitioner is not a tenant. The revision petitioner challenged the final decree in appeal. That appeal was also dismissed. 5. The Review Petition is filed seeking to review the preliminary decree. The petitioner contends that he is entitled to equity and reservation for allotment of the items held by him in his favour. It was contended that only after scrutinizing the records with the help of the counsel at Manjeri, he came to know that the claim of equity and reservation was given up. He contended that he had not instructed his lawyer to give up the claim of equity and reservation. 6. The court below considered the facts and circumstances of the case and the evidence on record and held that it is hard to believe the case set up by the revision petitioner. Accordingly, the court below dismissed the application. C.R.P. NO.1254 OF 1998 :: 3 :: 7. The preliminary decree was passed on 31.10.1981. As stated earlier, a final decree was passed and in the final decree proceedings there was reference to the Land Tribunal in respect of the claim of tenancy. Against the final decree, the revision petitioner had filed an appeal. After a period of fourteen years from the date of passing of the preliminary decree, he had approached the court with a prayer to review the preliminary decree on the ground that he had not instructed his lawyer to withdraw his contention on the question of equity and reservation. As rightly held by the court below, it is hard to believe such a contention. The petitioner is bound by what was stated by his counsel in the trial court. More over, a claim of tenancy and a claim for equity and reservation runs contra to each other. Therefore, it is clear that the counsel was right in endorsing that he is withdrawing the contention of equity and reservation in order to protect the interest of his client to retain the claim of a larger right, namely, the claim of tenancy. Such claim of tenancy was considered by the Land Tribunal and it was negatived. The decision of the Land Tribunal, which was incorporated by the trial court in the final decree, was confirmed by the appellate court. After a period of fourteen years, the petitioner cannot be allowed to turn round and contend that he is entitled to get the preliminary decree reviewed. The court below was right in dismissing the application. C.R.P. NO.1254 OF 1998 :: 4 :: No grounds are made out for interference under Section 115 of the Code of Civil Procedure. The Civil Revision Petition is accordingly dismissed. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------------ ------------------------------------------------ C.R.P.NO. 1254 OF 1998 D O R D E R 20th August, 2007 ------------------------------------------------