Kerala High Court
Mayadevi C vs C.Nirmalakumari on 1 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 01ST DAY OF MARCH 2021/10TH PHALGUNA, 1942
RP.No.708 OF 2020 IN RSA. 156/2014
RSA 156/2014 OF HIGH COURT OF KERALA DTD.19.2.2014
REVIEW PETITIONER/APPELLANT:
MAYADEVI C.,
AGED 53 YEARS,
W/O.JAYAKUMAR.K.,
RESIDING AT C.C.39/4943A (NEW No.C.C.61/255),
ANANTHA VIHAR, N.G.O.UNION OFFICE LANE,
KARIMPATTA CROSS ROAD, ERNAKULAM - 682 016.
BY ADV. SRI.R.S.KALKURA
RESPONDENT/RESPONDENT:
C.NIRMALAKUMARI,
AGED 59,
W/O.MAHINDRA KUMAR, RESIDING AT MAHIMA HOUSE,
N.G.O. UNION OFFICE LANE,
KARIMPATTA CROSS ROAD, PALLIMUKKU,
ERNAKULAM - 682 016.
BY ADV. SRI.M.P.RAMNATH
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
12.02.2021, ALONG WITH RP.721/2020, THE COURT ON
01-03-2021 PASSED THE FOLLOWING:
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 01ST DAY OF MARCH 2021 / 10TH PHALGUNA, 1942
RP.No.721 OF 2020 IN RSA. 157/2014
RSA 157/2014 OF HIGH COURT OF KERALA DTD.19.2.2014
REVIEW PETITIONER/APPELLANT:
MAYADEVI.C.,
AGED 53 YEARS,
W/O.JAYAKUMAR K.,
RESIDING AT C.C.39/4943A,(NEW No.C.C.61/255),
ANANTHA VIHAR, N.G.O.UNION OFFICE LANE,
KARIMAPATTA CROSS ROAD,
ERNAKULAM-682016.
BY ADV. SRI.R.S.KALKURA
RESPONDENT/RESPONDENT:
C.NIRMALAKUMARI,
AGED 59,
W/O.MAHINDRA KUMAR,
RESIDING AT MAHIMA HOUSE,
N.G.O.UNION OFFICE LANE,
KARIMPATTA CROSS ROAD,
PALLIMUKKU,ERNAKULAM-682016.
BY ADV. SRI.M.P.RAMNATH
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
12.02.2021 ALONG WITH R.P.No.708/2020, THE COURT ON
01.03.2021 PASSED THE FOLLOWING:
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..3..
ORDER
The above review petitions are filed against the
common judgment dated 19.2.2014 in R.S.A.Nos.156 &
157 of 2014 on the file of this Court.
2. The plaintiff in O.S.No.688/2008 on the file of
the Principal Munsiff's Court, Ernakulam (hereinafter
referred to as 'the trial court') and the respondent in
A.S.No.13/2011 on the file of the first Additional Sub
Court, Ernakulam (hereinafter referred to as 'the first
appellate court') is the appellant in R.S.A.Nos.156 &
157/2014. The plaintiff instituted O.S.No.688/2008 on the
file of the Principal Munsiff's Court, Ernakulam seeking to
recover plaint B schedule property after dismantling and
removing all constructions standing therein and to pass a
mandatory injunction against the defendant to dismantle
and remove all obstructions caused to C schedule pathway
and consequential reliefs.
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..4..
3. The defendant filed a counter claim contending
that the defendant is in possession of 10.50 cents of
property including two buildings situated therein. The
defendant prayed for a decree of permanent prohibitory
injunction restraining the plaintiff from trespassing into
the counter claim schedule property or interfering with the
construction of a compound wall.
4. The trial court passed a decree for recovery of
possession and consequential permanent prohibitory
injunction. The decree for mandatory injunction was
disallowed. The plaintiff filed A.S.No.8/2011 and the
defendant filed A.S.No.13/2011 before the first appellate
court. The first appellate court modified the decree in
O.S.No.688/2008 by rejecting the prayer for recovery of
possession of B1 plot in Ext.C2(a) plan and allowed the
prayer for prohibitory injunction claimed by the defendant.
5. Feeling aggrieved by the judgment and decree
in A.S.Nos.8/2011 & 13/2011, the plaintiff preferred
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..5..
R.S.A.No.156/2014 and R.S.A.No.157/2014 before this
Court.
6. This Court heard both the R.S.As. together and
rendered a common judgment dated 19.2.2014.
Paragraphs 7 and 8 of the judgment are as follows:-
"7. After having gone through the judgments of
the courts below, there seems to be considerable
force in the submission made by the respondent
that the narrow strip of land shall be as A1 but the
northern side of plot B which admittedly belongs to
plaintiff can never form part of the pathway and
the description of 6.6 meters width at the end of
the pathway can only be a mistake. There are no
grounds to interfere with the said finding.
However, the lower appellate court seems to have
fallen in patent error with respect to B1 shown in
the report, Ext.C2 and plan Ext.C2(a) which form
part of the decree.
8. Admittedly, even going by the measurements
as per Ext.A1 and also the claim put forward by
the defendant, B1 plot has necessarily to form part
of the plot set part to the plaintiff as per B
schedule to A1. If that be so, the decree in respect
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..6..
of that part has to follow. The trial court was
justified in granting a decree in that respect. As far
as A1, the finding of the lower appellate court that
it does not form part of B schedule and it is only a
compound wall constructed by the defendant
cannot be accepted in view of the commission
report and plan.
For the above reason, that portion of the lower
appellate court's decree refusing to grant relief in
B1 is set aside and the decree of the trial court in
that respect is restored.
With the above observations, these appeals
are disposed of. "
7. There is a delay of 2360 days each in filing the
review petitions. The learned counsel for the review
petitioner submits that the delay had occurred only on
account of the fact that the appellant was not aware of the
mis-description of the extent by the Surveyor in the plan
attached to the Survey Report. The complaint of the
petitioner/appellant is that she had engaged a private
surveyor to measure out the property based on the
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..7..
commission report. It is stated that the surveyor so
engaged on perusal of the measurement in the plan
appended to the commission report and decree is of the
view that the extent of the properties in the plan
appended to the commission report has been deliberately
misrepresented. Having noticed the defect, she filed the
present review petitions along with the applications to
condone the delay in filing the review petitions.
8. This Court passed a common judgment in
R.S.A.Nos.156/2014 & 157/2014 as early as on
19.2.2014. Both parties filed execution petition before the
trial court. In second appeals, this Court accepted the
commission report as evidence and passed a decree.
When these review petitions came up for hearing, this
Court sought a clarification from the learned counsel for
the review petitioner as to whether the review petitioner is
aggrieved by the plan prepared by the surveyor or the
footnote wherein the calculation made by the surveyor.
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..8..
The learned counsel for the review petitioner on
instructions submitted that, the entire plan was prepared
wrongly based on incorrect measurement playing fraud on
the review petitioner.
9. It is a fact that the Advocate Commissioner's
report along with Court appointed surveyor's plan is
sought to be set aside on the ground of fraud and that
too, after hearing both sides and pronouncing the
judgment by this Court in R.S.As. The judgment has
become final. Considering the fact that the judgment has
become final, it is unjust to re-open the same after the
lapse of six years. There is no error apparent on the face
of record warranting review of the judgment passed by
this Court. In the affidavits in support of the review
petitions, detailed measurements are stated by the review
petitioner to prove that the measurement adopted by the
surveyor is wrong. Sitting in review jurisdiction, this Court
is not justified in re-analysing the entire matter on record
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..9..
on the basis of an application filed by the review petitioner
after a considerable long period of time.
10. Going by the facts and circumstances of the
case, the petitions to condone the delay in filing the
review petitions are not maintainable after the lapse of six
years. Even assuming that it is maintainable, sufficient
cause has not been shown to condone such a delay which
is inordinate in nature. Even if delay is condoned, the
review petitions of this nature are not maintainable at the
instance of a party to the second appeals before this Court
after 2360 days from the date of judgment. In case the
delay is condoned and the review petitions are considered,
this Court is of the view that these review petitions do not
contain any ground having merits for reviewing the earlier
decision taken in the common judgment in second appeals
rendered by this Court. It is not practically possible to
accept the contention of the review petitioner that the
survey plan is incorrect without giving an opportunity to
C.M.Appln.No.1/2020 in R.P.No.708/2020,
C.M.Appln.No.1/2020 in R.P.No.721/2020 &
R.P.Nos.708 & 721/2020
..10..
the opposite side to substantiate their case in accordance
with law. If such an opportunity is given, the respondent
will be forced to fight against the appellant afresh right
from the trial court. This is totally unjust. Hence, the
applications for the condonation of delay and the review
petitions are liable to be dismissed.
In the result, the C.M.Appln.No.1/2020 in
R.P.No.708/2020, C.M.Appln.No.1/2020 in R.P.No.721/2020 and
R.P.Nos.708 & 721/2020 are dismissed. There will be no order
as to costs. Pending applications, if any, stand closed.
Sd/-
N.ANIL KUMAR,
JUDGE
skj
