Kerala High Court
Revision vs Muhammad on 4 September, 2012
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
TUESDAY, THE 4TH DAY OF SEPTEMBER 2012/13TH BHADRA 1934
CRP.No. 200 of 2009 ( )
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OS.NO.33/1957 of SUB COURT, TIRUR
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REVISION PETITIONER(S)/PETITIONERS
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1. MUHAMMAD,
S/O.AAMBALATHVEETIL KUNNATHODATHU MUHAMEDUNNI,
AYIROOR AMSOM DESOM, PONNANI TALUK,
MALAPPURAM DISTRICT.
2. MAMMOOTTY,
S/O.AAMBALATHVEETIL KUNNATHODATHU MUHAMEDUNNI,
AYIROOR AMSOM DESOM, PONNANI TALUK,
MALAPPURAM DISTRICT.
BY ADVS.SRI.DEVAN RAMACHANDRAN
SRI.K.M.ANEESH
RESPONDENT(S):
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1. PATTARUMADATHIL BAPPU (LATE)
2. MUHAMMED, S/O.PATTARUMADATHIL BAPPU,
PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
3. SAINUDHEEN (LATE)
4. KHADEEJA, D/O.PATTARUMADATHIL BAPPU,
PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
5. KUNHOOSA, S/O. PATTARUMADATHIL BAPPU,
PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
6. ABUTTY, S/O. PATTARUMADATHIL BAPPU,
PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
7. FATHIMA, D/O.PATTARUMADATHIL BAPPU,
PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
sts 2/-
-2-
CRP.NO.200/2009
8. SAFIYA, D/O.PATTARUMADATHIL BAPPU,
PATTARUMADATHIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
9. SULAIKHA, W/O.CHEKKU MOULAVI,
D/O.AMBALATHUVEETTIL MUHAMMEDUNNI,
AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
10. SHEREEFA,
D/O.AMBALATHUVEETTIL MUHAMMEDUNNI,
AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
11. AFSA,D/O.AMBALATHUVEETTIL MUHAMMEDUNNI,
AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
12. SANNIYA,D/O.AMBALATHUVEETTIL MUHAMMEDUNNI,
AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
13. ABDUL MAJEED,D/O.AMBALATHUVEETTIL MUHAMMEDUNNI,
AMBALATHUVEETTIL HOUSE, AYIROOR P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT.
14. KAPPATTAKATH KONDATH BAVA (LATE)
15. KAPPATTAKATH KONDATH PATHUMMU,
W/O.KAPPATTAKATH KONDATH BAVA,AYIROOR P.O.,
PONNANI TALUK, MALAPPURAM DISTRICT.
16. MARIYAMBEEVI, W/O.UMMER,
D/O. KAPPATTAKATH KONDATH BAVA,AYIROOR P.O.,
PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT.
17. MUHAMMEDUNNI,
S/O. KAPPATTAKATH KONDATH BAVA,AYIROOR P.O.,
PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
18. AYISSUMMU, W/O.KARUPPAN VEETTIL
MALIYEKKAL ABU, PERUMBADAPPU P.O.,PONNANI TALUK,
MALAPPURAM DISTRICT
19. BASHEER,
S/O. KAPPATTAKATH KONDATH BAVA,AYIROOR,
PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
20. ARIFA,
D/O. KAPPATTAKATH KONDATH BAVA,AYIROOR,
PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
3/-
-3-
CRP.NO.200/2009
21. ASKAR,
S/O. KAPPATTAKATH KONDATH BAVA,AYIROOR,
PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
22. SAFIYA,
W/O.POOLAMTHARAKKAL USMAN,
D/O. KAPPATTAKATH KONDATH BAVA,AYIROOR,
PERUMBADAPPU P.O.,PONNANI TALUK,MALAPPURAM DISTRICT
23. SHAHANAJ BEEGAM,
W/O.PATTARUMADATHIL SAINUDHEEN,
AYIROOR P.O., PONNANI TALUK,MALAPPURAM DISTRICT
24. THAJUDEEN,
S/O. PATTARUMADATHIL SAINUDHEEN,
AYIROOR P.O., PONNANI TALUK,MALAPPURAM DISTRICT
25. SHAMSUDHEEN,
S/O. PATTARUMADATHIL SAINUDHEEN,
AYIROOR P.O., PONNANI TALUK,MALAPPURAM DISTRICT
26. SIRAJUDHEEN,
S/O. PATTARUMADATHIL SAINUDHEEN,
AYIROOR P.O., PONNANI TALUK,MALAPPURAM DISTRICT
BY ADV. SRI.P.CHANDRASEKHAR
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 04-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sts
V.CHITAMBARESH,J.
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C.R.P No.200 of 2009
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Dated this the 4th day of September, 2012
O R D E R
The petitioners claimed to be the legal heirs of one Muhammedunni who was one of the plaintiffs in a suit for partition as O.S No.33/1957 on the file of the Court of the Subordinate Judge of Tirur. It appears that Muhammedunni died pending final decree proceedings and his brother and sister were recorded as his legal heirs on the basis of a memo filed by another plaintiff. The petitioners who later knew about the passing of the final decree for partition behind their back filed an application (I.A No.1611/2007) to review the final decree for partition. The court below has by the order impugned dismissed the application for review primarily for two reasons and they are:
i) The petitioners are not parties to the decree and hence they cannot maintain an application for review.
ii) The petitioners have to establish their status as the legal heirs of Muhammedunni in independent proceedings .
2. I am afraid that the court below has committed a C.R.P No.200 of 2009 2 grievous error in dismissing the application for review on the reasons stated above. The petitioners who claimed to be the legal heirs of one of the plaintiffs are certainly entitled to maintain the application for review under Order XLVII Rule 1 read with Section 114 by virtue of Section 146 of the Code of Civil Procedure. The petitioners cannot by any stretch of imagination be termed as strangers and cannot be non suited on that score.
3. The specific case of the petitioners is that the final decree for partition is vitiated by fraud in as much as the same was passed behind their back without notice to them. It is settled law that parties complaining of fraud in the passing of a decree or order has to approach the very same court to recall the decree or order if fraud is sufficiently established. The question whether the petitioners are the legal heirs of Muhammedunni or not has to be adjudicated as one of the points in the application for review and not by a separate and independent proceedings. A total non application of mind is well evident from the order impugned compelling me to invoke the jurisdiction under Article 227 of the Constitution of India.
4. The petitioners have a contention that voluminous evidence is available in the form of ration card, voters identity C.R.P No.200 of 2009 3 card and admission register to establish that they are the legal heirs of Muhammedunni. The petitioners are also eager to adduce oral evidence to establish their status as the legal heirs of Muhammedunni. Respondent Nos. 5 and 6 on the other hand assert that the petitioners are not the legal heirs of Muhammedunni as claimed and that Muhammedunni is a familiar name at Ponnani. Whether the petitioners are really the legal heirs of Muhammedunni or not has to be considered on the basis of oral and documentary evidence dependant on which the application for review has to be reconsidered.
5. The impugned order is set aside and I.A No.1611/2007 in I.A No.418/1990 in O.S No.33/1957 on the file of the Court of Subordinate Judge Tirur is remanded for reconsideration. The parties will appear in the court below on 3-10-2012.
The Civil Revision Petition is disposed of as above. No costs.
V.CHITAMBARESH.
JUDGE smm C.R.P No.200 of 2009 4 C.R.P No.200 of 2009 5