In this review petition regarding a final decree in a partition suit, the court dismissed the petition. The applicant, a respondent in the main appeal, alleged lack of hearing opportunity and defective property division. The court found no error in the decree and dismissed the review with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
MONDAY, THE 14th DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943
RP NO. 89 OF 2022
AGAINST THE JUDGMENT DATED 20.12.2021 IN RFA 216/2020 OF HIGH COURT
OF KERALA
REVIEW PETITIONER/RESPONDENT No.6:
PUTHANPURAYIL ABRAHAM DEVASSIA, AGED 60 YEARS, S/o ABRAHAM, BUSINESS, P.O. KOTTIYOOR, THALASSERY TALUK, KANNUR-670674.
BY ADV M.K.SUMOD
RESPONDENTS/APPELLANTS & RESPONDENT No.1 TO 5:
1 SHYAMALA P.C., AGED 72 YEARS, W/o SUKUMARAN, NO OCCUPATION, RESIDING AT THANDAYANKANDY HOUSE, CHOVVA, KANNUR-670006.
2 HARISH KUMAR, AGED 48 YEARS, S/o SUKUMARAN, RESIDING AT THANDAYANKANDY HOUSE, CHOVVA, KANNUR-670006. 3 SAPNA, AGED 38 YEARS, D/o SUKUMARAN, RESIDING AT THANDAYANKANDY HOUSE, CHOVVA, KANNUR-670006. 4 SONA, AGED 37 YEARS, D/o SUKUMARAN, RESIDING AT THANDAYANKANDY HOUSE, CHOVVA, KANNUR-670006. 5 HIRAJ, AGED 36 YEARS, S/o SUKUMARAN, RESIDING AT THANDAYANKANDY HOUSE, CHOVVA, KANNUR-670006. 6 SHEENA, AGED 44 YEARS, D/o SUKUMARAN, RESIDING AT THANDAYANKANDY HOUSE, CHOVVA, KANNUR-670006.
RP No.89 of 2022
2
BY ADV ABDUL RAOOF PALLIPATH
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 14.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RP No.89 of 2022
3
ORDER
The review petition was filed enumerating the following
grounds.
“A. The judgment dated 20.12.2021 is rendered without adequately affording a meaningful opportunity of hearing the Review Petitioner. Though Vakalath was filed for Review Petitioner after recalling the judgment, the Review Petitioner could not raise the contentions and arguments impeaching the impugned final decree and judgment.
B. The subject matter of lis being a partition suit, all the co-owners have equal right of participation in the lis and place their contention as if they are fictionally standing on same pedestal of plaintiff, co-owner. In deciding the matter particularly of the offer and its impact in deciding the appeal, the Review Petitioner was not given an opportunity to submit the contentions and opinion on proposal.
C. The Review Petitioner had a definite stand before court below that parcels of property inclusive of Plot A in Ext.C2 ought to be allotted to him. The contesting respondents 7 to 11 herein in lower court fiercely opposed this. However, when the matter was heard after recalling the judgment, the respondents 7 to 11 given up such a claim and offered to switch
RP No.89 of 2022
4
over to other plots if the appellants are willing to opt the choice of any plots according to their whims and fancies. Since respondents 7 to 11 abandoned the preference of Plot A though it was so expressed as offer before the Court, this Review Petitioner is entitled to that plot with portion that may be added to it on viable terms.
D. The Review Petitioner is prepared to take the plots A, F and G marked in Ext.C2 plan towards the share and is prepared to abandon the claim over plots C, D and I.
E. The Court omitted to address various grounds raised in Appeal Memorandum that equally applies as grievance for the Review Petitioner as well. The roads delineated in Ext.C2 takes a sweep cut on two intermittent points incapable of turning the vehicles in bent curve. Likewise, some plots are still under the threat of boundary dispute and invasion at the hands of neighboring landowners and a suit is still pending in that regard.”
the notice of this court with respect to any ground available to the party to review the earlier judgment rendered by this court, that too pertaining to the passing of a final decree in accordance with the preliminary decree passed. It is a partition suit initiated in the year 2007.
RP No.89 of 2022 5
This would show what is behind it. It is submitted by the
learned counsel for the respondents that it is yet another attempt on the part of one among the persons from a group constituting three divisions. A decree for partition was passed directing division of property - 1/3rd share by metes
and bounds and it has become final and conclusive. Thereafter final decree application was submitted in which a final decree was passed by accepting one of the plan submitted by the commissioner which was assailed by the appellants, who are the plaintiffs in the suit.
RP No.89 of 2022 6
extreme backside also divided into three equal plots by drawing a way having a width of five metre. Out of each plot, one plot each was given to the respective party in consonance with the preliminary decree for separation of 1/3rd share by metes and bounds and that was duly accepted by the trial court and the final decree was passed based on it. The Commissioner has done a very good job by drawing a separate way having a width of five metre so as to give means of access to the second and third plots which were equally divided into three plots so as to effect partition of 1/3rd share each. Nothing was brought to the notice of this court in order to alter the abovesaid division and as
such this court has confirmed the final decree. It is too unfortunate that what has actually done by this Court is by dismissing the appeal preferred by the
plaintiffs/appellants, wherein the 7th respondent, the review petitioner herein is the opposite party. The present review petitioner, who is the 7th respondent in the appeal or any person from their group has not opted to assail the
final decree passed by the trial court either by way of appeal or otherwise. That decree was accepted by this court
RP No.89 of 2022 7
by dismissing the appeal. In short, at the time when the
appeal was preferred by the plaintiffs/appellants, none of
the respondents came up against the final decree. This would show that they do not have any right to prefer a review when the appeal filed by the other side ended in dismissal, otherwise it amounts to permitting them to agitate the final decree even without an appeal preferred in time. The malafides behind the review petition is well explicit and as such, it is a case wherein this court can order exemplary cost while dismissing the review petition. But so as to avoid imposition of further liability, the review petition is hereby dismissed with cost of respondents without ordering any exemplary costs.
Sd/-
P.SOMARAJAN
JUDGE
DMR/-
3 issues framed by the court
Whether a review petition filed by a respondent in the main appeal is maintainable when no appeal was preferred against the preliminary decree.
Whether the grounds alleged violate principles of natural justice regarding opportunity of hearing in a partition suit.
Whether the arrangement of parcels by the commissioner in a partition suit should be disturbed on review.
Shyamala P.C.
Harish Kumar
Sapna
Sona
Hiraj
P.SOMARAJAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
