IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 RP.No. 1003 of 2003() --------------------- AGAINST THE JUDGEMENT/ORDER IN AS.149/1990 Dated 06/06/2003 OS.29/1986 of SUB COURT, KASARAGOD .................... REVIEW PETITIONER/III RESPONDENT: ---------------------- S.A. WAHAB, SON OF K.B. SHEIK YOUSUFF SAHIB, RESIDING AT MEHABOOB MANZIL, ANANGOOR, KASARGODE, KASARGOD P.O. VIDYANAGAR. BY ADV. SRI.P.V.BABY SRI.S.VINOD BHAT SRI.R.D.SHENOY, SENIOR ADVOCATE RESPONDENTS/APPELLANTS 1 TO 3 AND RESPONDENTS 2, 4 TO 24: -------------------------------- 1. K.S. NAZIRUDDIN AHAMAD, SON OF K.S. SHEIK YUSUF SAHEB, RESIDING AT SHEIK MANZIL, BEHIND TALUK OFFICE, P.O.KASARGOD. 2. SMT. JAMILABEE, W/O SHEIK ABDUL LATEEF, RENUKA SHAMBHAVI NILAYA, BAPUJI NAGAR, IV CROSS, ANGALAYANAKAKERE, SHIMOGA,577 201 3. SMT.ZARINA BEGUM EASA, WIFE OF I.MOHAMMED EASA, RESIDING AT BEHIND JAMIYA MASJID, APPAYA SWAMI ROAD, (CHURCH ROAD),VIRAJPET, COORG. 4. K.SHEIK NOORUDDIN, SON OF K.B. SHEIK YUSUF SAHEB, RESIDING AT SXHEIK MANZIL, BEHIND TALUK OFFICE, PALLA ROAD, KASARGOD, P.O.KAZARGOD. 5. K.S.ABDUL RASHEED, SON OF SHEIK YOUSUF SAHEB, RESIDING AT FORT ROAD, KAZARGOD POST. 6. SMT.H.A.KULSUMBEE, WIFE OF K. SHEIK ABDUL HASIM, RESIDING AT NEAR JUMA MASJID, T.B.ROAD, HOSDURG, P.O.KANHANGAD, HOSDURG TALUK. 7. S.A. RAHMATHULLA, RESIDING AT DO.DO.DO.DO. 8. MAMTAZ, DO. DO.DO.DO. 9. S.A.NAZEERA, DO.DO.DO.DO. RP.No. 1003 of 2003() 10. S.A.SHAMHAD, DO.DO.DO.DO. 11. WAHEEDA,DO.DO.DO.DO. 12. S.ABDUL RAFEEQ, DO. DO. DO. DO. 13. ZEENATH, DO.DO.DO.DO. 14. SMT.SAFURINNISSA, WIFE OF LATE SHARIFF, RESIDING AT KIJE HOUSE, PARANKI VILLAGE, P.O. MADANTHYAR, BELTHANGADY TALUK, KARNATAKA STATE. 15. H.RAFIYUDDIN, SON OF LATE MOHAMMED KASIM SAHEB, PROPRIETOR, SAKEER MOTOR SERVICE, P.O.KASARGOD. 16. SMT.ZAIBUNNISA, WIFE OF AZIZ SAHEB, C/O USMAN SAHEB, RESIDING AT MAJAL, UPPALA VILLAGE AND POST, KAZARGOD TALUK 17. B.N.YAKUB SAHEB, SON OF SHEIK IBRAHIM, RETD.SHERISTADAR, RESIDING AT HOUSE NO. M.I.C. 34, K.M.B. COLONY, BANDEL P.O., KAVOOR, MANGALORE 575 015 18. S.A.HANAF, SON OF P.N.YAKU SAHEB, OFFICER, KARNATAKA BANK LTD., PB. NO.2, MAIN ROAD, SRIRENGAPATNA, HENDYA DISTRICT, KARNATAKA STATE. 19. MRS.DILSHAD, WIFE OF K.ABDU KHAN, RETD. VILLAGE ACCOUNTANT, RESIDING AT KHAN MANZIL, HOSINADAKA, P.O.DARBE, PUTTUR D.K. 20. MRS.RAZIA M.C., WIFE OF S.M.G. IBRAHI, RESIDING IN SITE NO.17, KAMATNA NAGAR, LAYOUT, DONDEL, P.O.KAVOOR, MANGALORE. 21. MRS.SEENATH ATHIQ, WIFE OF ATHIQ-UR-RAHAMAN, RESIDING AT DOOR NO. 20, 6HT CROSS, KANAKA NAGAR, R.T. NAGAR, BANGALORE. 22. MRS.THAKJUNAICAS, WIFE OF S.K.IQBAL, RESIDING IN HOUSE NO. M.I.G. 34, K.M.L.COLONY, BANDEL, P.O. KAVOOR, MANGALORE. 23. KUM. MUMTAZ, D/O.P.M. YAKE SEHED, IN DO.DO. 24. KUM.SHAMSHAD, D/O DO.DO. 25. SHEIK MOHAMMED FASULALLA, SON OF P.N. YAKU SAHAB, RESIDNG AT HOUSE NO. M.I.G.34, K.H.B. COLONY, BANDEL, P.O. KAVOOR. ADV. SRI.SHIRAZ ABDULLA FOR R1 SRI.JOJO PAPPACHAN FOR R1 SRI.M.C.SEN, SENIOR ADVOCATE FOR R2 SRI.M.V.IBRAHIMKUTTY FOR R5 TO R12 SMT.SHAHNA KARTHIKEYAN FOR R1 SRI.V.ARUN FOR R1 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 11/04/2011, ALONG WITH RP NO. 1004 OF 2003 AND CONNECTED CASES. THE COURT ON THE SAME DAY PASSED THE FOLLOWING: RP.No. 1003 of 2003() APPENDIX -------------- PETITIONER'S EXHIBITS ---------------------------------- ANNEXURE I :- TRUE COPY OF THE LETTER FROM MR.ROY ABRAHAM, ADVOCATE. ANNEXURE II:- TRUE COPY OF THE ORDER OF THE SUPREME COURT IN SLP (CIVIL) NO.14929-14932 OF 2003. RESPPONDENT'S EXHIBITS :- NIL. //TRUE COPY// PA TO JUDGE. A.K. BASHEER & P.Q. BARKATH ALI, JJ. ---------------------------------------------------------- R.P No.1003/2003 in A.S No.149/1990 R.P No.1004/2003 in A.S No.196/1990 R.P.No.82/2006 in A.S.No.243/1990 R.P.No.83/2006 in A.S.No.299/1990 ---------------------------------------------------------- Dated this the 12th day of April, 2011 ORDER A.K. Basheer, J. These Review Petitions are being disposed of by this common order since they arise from a common judgment in four appeals viz., A.S.No.149/1990, A.S No.196/1990, A.S.No.243/1990 and A.S No. 299/1990. 2. The above appeals were disposed of by a Division Bench on June 6, 2003 modifying the decree and judgment passed by the trial court. While the trial court held that only item Nos.1 to 4 were available for partition, this Court found that all items were liable to be partitioned by metes and bounds. 3. It may at once be noticed that these 4 review petitions have been filed by defendant No.2 in the suit after his Special Leave Petitions were dismissed by the Apex Court in limine on August 25, 2003. 4. Sri.R.D.Shenoy learned senior counsel who appears for the petitioner submits that review petitions are maintainable before this Court even though the Special Leave Petitions have been dismissed R.P No.1003/2003 in A.S No.149/1990 2 by the Supreme Court in limine. In support of the above contention he has invited our attention to the decision of a three Judge Bench of the Apex Court in Kunhayammed V. State of Kerala (AIR 2000 SC 2587). 5. However, Sri.P.B. Krishnan learned counsel who appears for the respondents submits, relying on an earlier decision of the Apex Court in Abbai Maligai Partnership Firm V. K.Shanthakumaran ((1998) 7 SCC 386), that the legal position may appear to be still unsettled. But he fairly concedes that Kunhayammed (supra) being a later decision, it may hold the filed and therefore the review petitions may have to be entertained. 6. We have carefully perused the grounds raised in the review petitions and heard learned counsel on both sides. 7. The primary contention raised by the learned senior counsel is that this Court while disposing of the appeals had laid emphasis only on mutation and non-sharing of profits by the plaintiff and other defendants from the plaint schedule properties. He submits that several other vital factors which had considerable bearing on the crucial issues involved in the suit were totally overlooked by the Division Bench. Learned senior counsel has invited our specific attention to these so called vital factors enumerated in ground E of the memorandum of review petition. R.P No.1003/2003 in A.S No.149/1990 3 8. According to the learned counsel, if this Court had adverted to and considered these very vital points, the final conclusion in the four appeals might have been totally different. We do not propose to refer to or deal with these fourteen points in this order for the obvious reason that we are exercising the review jurisdiction. However, we have carefully considered these points in our anxiety to see whether any miscarriage of justice has occurred in the matter. A bare reading of these points will show that attempt of the petitioner is to persuade this Court to re-hear the appeals. The points raised by the petitioner are based on facts and pieces of evidence that were let in by the parties before the trial court. 9. Learned senior counsel has made specific reference to Exhibit X1(c) and contended that this being a registered mortgage deed executed by the petitioner in favour of the Government, due weightage ought to have been given to the said document. He has also repeatedly emphasised the several improvements made by the petitioner in the property to the knowledge of all the co-sharers. Learned senior counsel submits that petitioner had established his case of “notorious exclusive possession and enjoyment”, thereby perfecting his title through adverse possession and ouster. He submits that this Court, while deciding the appeals, had overlooked these crucial fourteen points enumerated in the review petitions and R.P No.1003/2003 in A.S No.149/1990 4 resultantly entered a wrong finding that there was no adverse possession or limitation. 10. Having carefully considered the grounds urged in the review petitions and the argument advanced by the learned senior counsel, we do not find any merit in any of those contentions. Review petitions are therefore dismissed. A.K.BASHEER, JUDGE. P.Q.BARKATH ALI, JUDGE. rkc