Kerala High Court
Thondiyil Chirutha Kunhi vs Kalathil Vinod Kumar on 26 February, 2021
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 26TH DAY OF FEBRUARY 2021 / 7TH PHALGUNA, 1942
RP.No.1300 OF 2019 IN OP(C). 543/2019
AGAINST THE JUDGMENT IN OP(C) 543/2019 OF HIGH COURT OF KERALA
REVIEW PETITIONERS/PETITIONERS:
1 THONDIYIL CHIRUTHA KUNHI
AGED 48 YEARS
D/O.THONDIYIL KUNHATHA, RESIDING AT VATTAPOYIL, NEAR
GOVERNMENT HOSPITAL IN PEROLE VILLAGE.
2 THONDIYIL ROHINI
D/O.THONDIYIL KUNHATHA, RESIDING AT PARAKOLE,
KEEZHAMALA IN KARINDALAM VILLAGE.
3 VELLACHI
W/O.LATE THONDIYIL KUNHIKANNAN, RESIDING AT MAYICHA,
CHERUVATHUR VILLAGE, HOSDURG THALUK.
4 BINDU .,
D/O.THONDIYIL KUNHIKANNAN, RESIDING AT MAYICHA,
CHERUVATHUR VILLAGE, HOSDURG THALUK.
5 PRADEEPAN ,
S/O.THONDIYIL KUNHIKANNAN, RESIDING AT MAYICHA,
CHERUVATHUR VILLAGE, HOSDURG THALUK.
6 YESHODA
W/O.LATE THONDIYIL SREEDHARAN, RESIDING AT MAYICHA,
CHERUVATHUR VILLAGE, HOSDURG THALUK.
7 SREEJA,
D/O.THONDIYIL SREEDHARAN, RESIDING AT KAZHAKKE
VALAPPIL, CHERUVATHUR VILLAGE.
8 RAJESH ,
S/O.THONDIYIL SREEDHARAN, RESIDING AT MAYICHA,
CHERUVATHUR VILLAGE, HOSDURG THALUK.
9 SRIJESH
S/O.THONDIYIL SREEDHARAN, RESIDING AT MAYICHA,
CHERUVATHUR VILLAGE, HOSDURG THALUK.
BY ADVS.
SRI.K.V.SREE VINAYAKAN
RP.No.1300 OF 2019 IN OP(C). 543/2019 2
SRI.T.KRISHNANUNNI (SR.)
RESPONDENTS/RESPONDENTS:
1 KALATHIL VINOD KUMAR
S/O.LATE CHANDAN KUNHI, MOZHAKOTH, KLAYIKODE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,
PIN - 671 313.
2 KALATHIL PRAMOD KUMAR
S/O.LATE CHANDRAN KUNHI, MOZHAKOTH, KLAYIKODE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,
PIN - 671 313.
3 KALATHIL BINDU
D/O.LATE CHANDRAN KUNHI, MOZHAKOTH, KLAYIKODE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,
PIN - 671 313.
4 KALATHIL SINDHU
D/O.LATE CHANDRAN KUNHI, MOZHAKOTH, KLAYIKODE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,
PIN - 671 313.
5 KALATHIL SANDHYA
D/O.LATE CHANDRAN KUNHI, MOZHAKOTH, KLAYIKODE
VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT,
PIN - 671 313.
BY SRI.K.JAYESH MOHANKUMAR
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
26.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP.No.1300 OF 2019 IN OP(C). 543/2019 3
ORDER
Dated this the 26th day of February 2021 Review petition is filed seeking to review the judgment in O.P.(C) No.543/2019, whereby the original petition was dismissed by holding as follows:
"6.Respective counsel appearing for respondents have addressed arguments in accordance with the contentions taken up before the court below. I have appreciated the rival submissions made across the Bar. In my considered opinion, the findings rendered by the court below in respect of the 6th issue framed is in accordance with the pleadings put forth by the parties. It is the case of the defendants that they are claiming Kuzhikanam right and title over the property on the basis of assignment deed No.1220/1934 secured by Kannan on the basis of Kuzhikkanam right over the suit properties. Therefore, it cannot be said that, the issue is to be re- cast as of now. So much so, there is no prohibition created to the petitioners to take up that defence before the court below after adducing evidence. It is also clear that, the subject matter of issues raised was a matter of consideration in the earlier round of litigation by the appellate court and this court, and petitioners did not have RP.No.1300 OF 2019 IN OP(C). 543/2019 4 a case at all that the issue in question framed as issue No.6 had any deficiency, or the same is illegal. So also in accordance with the provisions of Order 14 Rule V, the court below is vested with ample powers at any time before passing a decree, amend the issues or frame additional issues on such terms at it thinks it in order to determine the matters in controversy between the parties.
7. Taking into account the legal and factual circumstances, I am of the considered opinion that, petitioners have not made out any case justifying interference of this court exercising the power of supervisory jurisdiction under Article 227 of the Constitution of India.
Therefore, the original petition fails, accordingly it is dismissed subject to the observations made above."
2. The paramount contention advanced in the review petition is that there is error apparent on the face of the record and that the framing of issue is the duty of civil court and once the issue is framed and referred to Land Tribunal, after a finding by the Land Tribunal on the issue referred, the civil court has no jurisdiction to alter or amend, or re-cast the issues under section 125(3) of the Kerala Land Reforms Act, 1964. It was also contended that I.A.No.2029/2018 was filed by the review petitioners to re-cast issue No.6 as follows;
"Whether Manikkam or the original plaintiff namely Chandan Kunhi is RP.No.1300 OF 2019 IN OP(C). 543/2019 5 a cultivating tenant in respect of the suit property" instead of "whether Kannan was a Kuzhikanam tenant in respect of the suit properties", which was originally framed by the trial court.
3. According to the learned Senior Counsel appearing for the review petitioners, it is the primary duty of the plaintiffs in a suit to establish title and shifting the burden to the defendants on the basis of the claims raised by them, was not a legal approach on the part of the court below, which was not taken note of by this Court when the original petition was disposed of.
4. I have heard learned Senior Counsel for the review petitioners Sri.T.Krishnanunni, assisted by Sri.Vipindas and learned counsel Sri.Jayesh Mohankumar for respondents.
5. In fact the issue now raised in the review petition was taken note of by this Court and it was understanding the true implications of the findings of the trial court in regard to the framing of the 6 th issue, the original petition was dismissed. However, it was also made clear in the judgment that if at a later point of time, court finds that the issue is to be re-cast, the power enjoyed by the court under Order XIV Rule 5 of the Code of Civil Procedure can be resorted to. It was also pointed out that the factual errors that was contained in the order of the lower court was adopted by this court while rendering the judgment. However, in my considered opinion, if there is any factual error, it RP.No.1300 OF 2019 IN OP(C). 543/2019 6 was not a valid factor for the purpose of consideration of the issues raised in the original petition.
6. Taking into account the above, I do not think petitioners have made out any case for review since there is no error apparent on the face of the record. However, I further make it clear that the trial court will be at liberty to re-frame the issues at a later point of time, if that is required, in view of the rival contentions raised by the parties, also bearing in mind the primary duties of the plaintiffs to establish the claims raised by the plaintiffs in the suit. Upshot of the discussion is that, review petition fails, accordingly it is dismissed.
Sd/-
SHAJI P.CHALY
smv JUDGE