M. Jabbar vs Abdul Karim Sait
2023 Latest Caselaw 1728 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

        THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                             &
        THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944
                    RP NO. 101 OF 2023
AGAINST THE JUDGMENT IN W.A.NO.647/2009 OF HIGH COURT OF
                          KERALA


REVIEW PETITIONER/2ND APPELLANT IN W.A.:-

         M. JABBAR
         AGED 62 YEARS
         S/O P.C.MAHMOOD, MAHMOOD STORES,
         DOOR NO. CC 40/2875, BROADWAY,
         ERNAKULAM - 682031.
         BY ADVS.
         NISHA GEORGE
         GEORGE POONTHOTTAM (SR.)


RESPONDENTS/RESPONDENTS IN W.A :-

    1    ABDUL KARIM SAIT
         AGED 54 YEARS
         S/O HAJI NOOR MUHAMMED SAIT, 42/2260,
         B-4, JEWELS PARK, PROVIDENCE ROAD,
         ERNAKULAM - 682018
    2    MOHAMMAD JAMAL
         AGED 51 YEARS
         S/O HAJI NOOR MUHAMMED SAIT, 42/2260,
         B-4, JEWELS PARK, PROVIDENCE ROAD,
         ERNAKULAM - 682018
    3    MOHAMMAD IRFAN
         AGED 34 YEARS
         S/O HAJI NOOR MUHAMMED SAIT, 42/2260,
         B-4, JEWELS PARK, PROVIDENCE ROAD,
         ERNAKULAM - 682018
    4    THE DISTRICT COLLECTOR
         COLLECTORATE, KAKKANAD,
 C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 &
R.P.No.101 of 2023

                                        2



              ERNAKULAM - 682030
       5      THE TAHSILDAR
              KANAYANNUR TALUK,
              ERNAKULAM - 682011
       6      THE DEPUTY COLLECTOR (LR)
              ERNAKULAM, COLLECTORATE, KAKKANAD,
              ERNAKULAM DISTRICT - 682030
              BY ADVS.
              BABU KARUKAPADATH
              VAISAKHI V
              M.A.VAHEEDA BABU(V-4)
              P.U.VINOD KUMAR(K/647/2002)
              ARYA RAGHUNATH(K/000474/2018)
              T.M.MUHAMMED MUSTHAQ(K/000261/2018)
              AJWIN P LALSON(K/001394/2018)
              KARUKAPADATH WAZIM BABU(MAH/8319/2019)
              P.LAKSHMI(K/001868/2021)
              AYSHA E.M.(K/001130/2022)
              SRI.T.K.VIPINDAS - SR.G.P


THIS       REVIEW   PETITION      HAVING    COME   UP    FOR    ADMISSION   ON
01.02.2023,         THE   COURT    ON   THE   SAME      DAY    DELIVERED    THE
FOLLOWING :
 C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 &
R.P.No.101 of 2023

                                  3



        K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
     -------------------------------------------
                C.M.Appln.No.1 of 2023
                           in
                   R.P.No.101 of 2023
                           in
                  W.A.No.647 of 2009
                            &
                   R.P.No.101 of 2023
     -------------------------------------------
       Dated this the 1st day of February, 2023


                            O R D E R

Vinod Chandran, J.

The review petition is filed with a delay of

3498 days. The ground stated for the delay

occasioned is that the review petitioner after

the judgment under review, was agitating a rent

control proceeding initiated by the party

respondents, which went against him. The appeal

and revision too ended against him; after which

he was advised that his contentions failed

because of the judgment in the writ appeal. We C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

found no grounds existing to condone the delay

especially considering the nature of the

litigation which arose on an assignment made by

the District Collector of a small extent of land

specifically 0.496 cents to persons who were

inducted in the property as tenants; which was

comprised in a larger extent assigned by the

State. In the appeal, the Division Bench agreed

with the learned Single Judge that there could be

no ground raised of adverse possession before the

District Collector and there was also no concrete

material available before the District Collector

to find violation of the conditions of a pattta

by the pattadar, of transfer of vacant land in

favour of third parties.

2. We heard Sri.George Poonthottam, the

learned Senior Counsel appearing for the

appellant instructed by Smt.Nisha George and

Sri.Babu Karukapadath appearing for the C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

respondents 1 to 3.

3. The learned Senior Counsel points out

that in the first place the extent claimed by the

review petitioners was 3/4th of a cent and that in

the rent control proceedings the courts were

bound by the decision on the finding of title, as

declared by this Court in the judgment under

review. While the Division Bench had vacated the

findings of the leaned Single Judge regarding the

landlord-tenant relationship, the finding as to

the title of the writ petitioners, based on an

assignment with conditions, from the Government,

in a petition under Article 226 of the

Constitution of India has to be vacated, is the

ground for review.

4. The learned counsel appearing for the

party respondents however pointed out that

admittedly there was no dispute regarding the

patta granted to the predecessor-in-interest of C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

the respondents. In fact, the condition in the

patta was the construction of a building, which

assignment was also for the purpose of developing

a new town and the disputed property now lies

within the heart of Ernakulam City; the

commercial significance of which has resulted in

the above claim by tenants who were inducted into

the building constructed in the assigned land, by

the assignee, who has also been paying the ground

rent.

5. The Division Bench in the judgment under

review found that there is no dispute regarding

the identity of the property and that it was part

of the 25 cents assigned in favour of one Asma

Beevi by the erstwhile Cochin State. The area was

identified as a New Town and the purpose of

assignment was the development of such town. Asma

Beevi and her assignees were in continued

possession of the properties and the appellants C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

were said to be in possession, only as tenants

for the last 50 years. It was also noticed by the

Division Bench that there was a rent control

proceeding which resulted in the observations in

the judgment under appeal, regarding the existing

landlord-tenant relationship, being vacated.

6. The revision petitioners had contested

the rent control proceedings and we find from the

order produced as Annexure-2 that a Division

Bench considering the Rent Control Revision found

the title on Asma Beevi, based on the findings

in W.P.(C) No.20734/2005, which relied on the

earlier judgments in O.P.No.22270/1998 and

S.A.No.1217/1974. W.P.(C) No.20734/2005 is the

writ petition from which the appeal arose and the

review filed is from the judgment in appeal. O.P

22270/1998 was disposed of by a common judgment,

where the dispute was with reference to the

revision of ground rent of the patta holders; C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

under a statutory rule, which was found to be not

applicable to lands situated, inter alia within a

Corporation, which the present Cochin is. The

Second Appeal referred to, is of identical patta

lands in which reliance was placed on a judgment

of this Court which found the title to be

established by the grant of patta if the

assignment is valid. The contention now raised

that the title was found by this Court in the

judgment under review is on the validity of a

patta granted by the erstwhile Cochin State. Be

that as it may, it was specifically observed in

the judgment under review that if the appellants

(who are the review petitioners) have perfected

their title by adverse possession, the High Court

is not the forum to decide it.

7. It is also to be observed that the review

petitioners admittedly were inducted as tenants

and now the landlord-tenant relationship has also C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

been established by the Rent Control Court which

finding has been approved by the appellate and

revisional courts, concurrently. It is difficult

to comprehend how the claim of adverse possession

raised before the District Collector; on the

ground of violation of conditions of the original

pattadar as per Ext.P15 order, could establish

the necessary hostile animus required in proving

adverse possession, especially when one who sets

up a claim of adverse possession should

necessarily admit the title of his adversary.

8. The appellant has neither satisfactory

grounds to seek for condonation of the long delay

occasioned, nor does he have any valid ground on

merits. The attempt is only to re-agitate the

cause before the civil court, which obviously

cannot be done by the review petitioner who was a

tenant, who is now directed to be evicted by the

Rent Control Court approved up to this Court. We C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

reject the application for delay condonation.

As a consequence of the dismissal of the

delay condonation application and the absence of

any error apparent on the face of the record, the

review petition is also dismissed.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

                                                C.JAYACHANDRAN
SMA                                                  JUDGE

C.M.Appln.No.1 of 2023 in R.P.No.101 of 2023 in W.A.No.647 of 2009 & R.P.No.101 of 2023

APPENDIX

PETITIONER ANNEXURES :-

Annexure-1 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 20734/2005 DATED 23.01.2009 PASSED BY THIS HON'BLE COURT.

Annexure-2 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN R.C.R.NO.352/2019 DATED 12.12.2022.