V.Shashi vs Kasthurbai
2025 Latest Caselaw 5189 Ker

Kerala High Court

V.Shashi vs Kasthurbai on 14 March, 2025

RP No.429 of 2022
In RSA No. 714 of 2020
                                          1
                                                               2025:KER:21180
                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                  THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM

            FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946

                               RP NO. 429 OF 2022

          AGAINST THE JUDGMENT DATED 08.07.2021 IN RSA NO.714 OF 2020 OF HIGH

COURT OF KERALA


REVIEW PETITIONERS/APPELLANT/APPELLANT/DEFENDANT:

      1        V.SHASHI (DIED) LRS IMPLEADED
               AGED 65 YEARS
               S/O.VASU, PUTHENPARAMBIL, VALLADIMURI, KUMARANKARI P.O.,
               PIN - 686 103, NEELAMPEROOR VILLAGE, KUTTANAD TALUK, FROM
               PUTHENPARAMBIL, PALLAMKARA, NATTAKAM VILLAGE, KOTTAYAM, PIN
               - 686 013.

  ADDL.RP2     ARUN.S,AGED 41 YEARS
               S/O (LATE) V. SHASHI, PUTHENPARAMBIL, VALLADIMURI,
               KUMARANKARI, P.O PIN 686103, NEELAMPEROOR VILLAGE, KUTTANAD
               TALUK, PALLAMKARA, NATTAKKAM VILLAGE, KOTTAYAM.

  ADDL.RP3     KIRAN.S, AGED 39 YEARS
               S/O (LATE) V. SHASHI, PUTHENPARAMBIL, VALLADIMURI,
               KUMARANKARI,P.O PIN 686103 NEELAMPEROOR VILLAGE, KUTTANAD
               TALUK, PALLAMKARA, NATTAKKAM VILLAGE, KOTTAYAM. THE LEGAL
               HEIRS OF DECEASED SOLE REVIEW PETITIONER(APPELLANT) ARE
               IMPLEADED AS ADDITIONAL REVIEW PETITIONERS 2 AND 3 AS PER
               THE ORDER DATED 06/12/24 IN I.A.1/2024


               BY ADVS.
               T.KRISHNANUNNI (SR.)
               M.R.MINI
               VINOD RAVINDRANATH
               MEENA.A.
               M.DEVESH
               K.C.KIRAN
               ASHWIN SATHYANATH
               ANISH ANTONY ANATHAZHATH
               THAREEQ ANVER K.
               NIVEDHITHA PREM.V
 RP No.429 of 2022
In RSA No. 714 of 2020
                                      2
                                                           2025:KER:21180


RESPONDENT/RESPONDENT/RESPONDENT/PLAINTIFF:

              KASTHURBAI
              AGED 77 YEARS
              D/O.PARVATHYAMMA, SREEPADMAM, DEVI NAGAR, PAZHAVEEDU
              VILLAGE, ALAPPUZHA - 688 009, FROM MALIYECKAL MADOM, VALADI
              MURI, NEELAMPEROOR VILLAGE, KUTTANAD TALUK, ALAPPUZHA,
              PIN - 686 534.


              BY ADV A.KRISHNAN


       THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 14.03.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 RP No.429 of 2022
In RSA No. 714 of 2020
                                      3
                                                           2025:KER:21180

                                    ORDER

1. Review petitioner was the appellant in RSA No.714/2020. The

Review petitioner was the defendant in the suit. The

respondent/plaintiff filed the suit to declare her title over the

plaint schedule property, to fix the northern boundary of the

same separating the property of the defendant and for

consequential recovery of possession and permanent

prohibitory injunction.

2. As per the plaint allegations, the plaintiff is having title and

possession over the plaint schedule property of 11.25 cents of

land and defendant is having 19 cents of land on the northern

side of the said 11.25 cents of land. The defendant was

conducting a Toddy shop in his land.

3. The Trial Court decreed the suit declaring the title of the plaintiff

over the plaint schedule property fixing the northern boundary

of the plaint schedule property from the property of the

defendant as per Ext.C1 (c) sketch. Consequential relief of

2025:KER:21180 recovery of possession and permanent prohibitory injunction

were also granted. Though the appeal was filed by the

defendant before the First Appellant Court, the same was

dismissed confirming the judgment and decree of the Trial

Court. RSA No.714/2020 was filed by the defendant challenging

the judgment and decree of the Trial Court which is confirmed

by the First Appellate Court and the same was dismissed in

limine by this Court.

4. Now the judgment in the Regular Second Appeal is sought to

be reviewed on the ground that the identification of the plaint

schedule property is evidently wrong as the Advocate

Commissioner identified the plaint schedule property as the plot

wherein shed of the toddy shop is situated, whereas it is

admitted in the pleading of the plaintiff that the toddy shop is

situated in the property of the defendant and that this Court

erred in thinking that no substantial questions of law arises in

2025:KER:21180 the appeal and the said finding is vitiated by errors of law and

fact evident on the face of the judgment itself.

5. The respondent opposed the Review petition by filing a counter

affidavit. The respondent contended that the identity of the

property is considered by this Court in the impugned judgment

and the same was answered in detail. The Trial Court as well

as the First Appellate Court considered the identity of the plaint

schedule property and the same was found against the Review

petitioner. The Review petitioner filed SLP(C) No.2047/2022

before the Hon'ble Supreme Court and it was dismissed by

order dated 15.02.2022. It is after the dismissal of the SLP this

Review petition is filed on untenable grounds. Even before the

filing of the Review petition the delivery of the plaint schedule

property was effected in favour of the respondent as per

Delivery Kychit dt. 23.03.2022 and the plaint schedule property

was mutated in the name of the respondents.

2025:KER:21180

6. I heard the learned Senior Counsel for the Review petitioner,

Sri.T Krishnanunni instructed by Adv. Smt.Mini M R and the

learned counsel for the respondent Sri. A Krishnan.

7. The learned Senior Counsel invited my attention to Ext.C1(c)

plan to substantiate the point that the identification of the plaint

schedule property is wrong. As per the plaint allegations the

entire property belonging to the defendant is situated on the

northern side of the plaint schedule property belonging to the

plaintiff. But in Ext.C1(c) the property belonging to the defendant

is found on the northern side and southern side of the plaint

schedule property. The property situated on the southern side

is having 4 cents. It is specifically admitted in the plaint that

toddy shop is situated in the defendant's property. But the plaint

schedule property identified in Ext.C1(c) is the property in which

toddy shop is situated. This itself would make it clear that the

identification is not correct. such identification is caused

2025:KER:21180 substantial injury to the defendant as his property is divided into

two parts.

8. On the other hand, the learned counsel for the respondent

contended that the respondent did not have any such

contention when the Regular Second Appeal was argued. The

contention now advanced does not find a place either in the

grounds or in the question of law framed in the Memorandum of

Regular Second Appeal. The Review petitioner is advancing

arguments on questions of facts which could not be entertained

even in the second appeal. This Court considered the

contentions raised in the second appeal and rendered the

impugned judgment. No ground is made out to review the

impugned judgment.

9. I had considered the rival contentions.

10. The only ground in support of the Review petition is the

incorrect identification of the plaint schedule property. The very

same contention was raised in the Second appeal and this

2025:KER:21180 Court considered and rejected the same. Now new arguments

on the basis of the same contention are advanced. The

arguments are that as per the identification in Ext.C1(c), the

property of the defendant is divided into two and that the

property identified by the Advocate commissioner as plaint

schedule property could not be the correct one as the same

includes the shed in which the toddy shop was conducted. As

rightly pointed out by the learned Counsel for the respondent

the arguments now advanced by the Review petitioner is not

seen raised in the Regular Second Appeal. No ground or

substantial question of law was raised in this regard. It is seen

from the impugned judgment that even though the Review

petitioner disputed the correctness and authenticity of Ext.C1

series by filing objection, no petition was filed to set aside the

same. The question of identity is already considered by the Trial

Court, First Appellate Court and this Court. It could not be re-

agitated again with an argument from a different angle.

2025:KER:21180

11. The Review is seen filed after the dismissal of SLP (C)

No.2047/2022 before the Hon'ble Supreme Court. It is seen

from the records produced by the respondent that delivery of

the plaint schedule property is effected as per the decree

obtained by the respondent and he has effected mutation of the

plaint schedule property before the filing of the Review.

12. In the recent decision of the Hon'ble Supreme Court in Sanjay

Kumar Agarwal v. State Tax Officer [2023 SCC Online SC

1406], the Hon'ble Supreme Court has categorically held that a

party is not entitled to seek a review of a judgment merely for

the purpose of a rehearing and a fresh decision of the case and

that the normal principle is that a judgment pronounced by the

Court is final, and departure from that principle is justified only

when circumstances of a substantial and compelling character

make it necessary to do so. It also held that an error which is

not self-evident and which has to be detected by a process of

reasoning, can hardly be said to be an error apparent on the

2025:KER:21180 face of record, justifying the Court to exercise its power of

review. It is further held that in exercise of the jurisdiction under

O.47 R.1 CPC, it is not permissible for an erroneous decision to

be "reheard and corrected"; that review petition has a limited

purpose and cannot be allowed to be an appeal in disguise and

that under the guise of review, petitioner cannot be permitted to

re-agitate and re-argue the questions which have already been

addressed and decided. In the light of these principles laid down

by the Hon'ble Supreme Court, the present Review Petition is

liable to be dismissed.

13. Now Review Petition is filed through a new counsel. It is well

settled by the decisions of the Hon'ble Supreme Court starting

from the decision in Tamil Nadu Electricity Board and

Another v. N. Raju Reddiar and Another [ AIR 1997 SC 1005]

that filing of a Review Petition through another counsel should

be deprecated with heavy hand for purity of administration of

law and salutary and healthy practice.