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2005 DIGILAW 448 (KER)

Kunju Muhammed v. Pazhukkamattom Devaswom

2005-07-07

THOTTATHIL B.RADHAKRISHNAN

body2005
Judgment :- This is an application seeking review of my judgment dated 17-12-2004 in S.A.No.47 of 2002. The respondent in the second appeal is the review petitioner. 2. A substantial question of law that arose for decision in the second appeal was as to whether the lessee of a delinquent trustee, who had been ordered to account and deliver up properties and documents of the trust to the new trustees is liable to be dispossessed by a decree in a suit filed invoking Section 92 of the Code of Civil Procedure. I answered that issue in the affirmative by the judgment sought to be reviewed. Accordingly, it was also held that the respondent in the second appeal (review petitioner), who was the seventh defendant in the suit cannot have any claim independent of the delinquent trustee, who was ordered to account and deliver up properties and documents of the trust. It was held that the seventh defendant had no right to continue in possession. 3. It is urged on behalf of the review petitioner that the judgment of the lower appellate court, which has been reversed by the judgment in the second appeal was passed by the court below referring to the decision of the Apex Court in Pragdasji Guru Bhagwandsji v. Ishwarlalbhai Narsibhai and others (AIR 1952 SC 143) and the decision of the Allahabad High Court in Uma Shanker and others v. Salig Ram and others (AIR 1975 Allahabad 36) and that while rendering the judgment in the second appeal, I had omitted to consider the said two decisions, of which reference was made by the learned counsel for the review petitioner, the respondent in the second appeal during the course of arguments. To urge that non-consideration of the decisions referred to at the time of arguments is a ground for review, the learned counsel for the review petitioner has referred to the full Bench decision of the Madhya Pradesh High Court by referring the short notes of the said case in Commissioner of Sale Tax v. Hukumchand Mills (2005 [1] KLT S.N.60 [Case No.75]). 4. The proposition laid down by the aforesaid decision of the Madhya Pradesh High Court is beyond challenge. 4. The proposition laid down by the aforesaid decision of the Madhya Pradesh High Court is beyond challenge. I was bound to follow the decisions of the Apex Court and if I had not followed a precedent on a point of law already settled by the Apex Court and cited at arguments, it may be a case of non-application of mind on my part and the judgment sought to be reviewed has to be considered as one suffering from an error apparent on the face of record. 5. The decision of the Apex Court in Pragdasji Guru Bhagwandasji’s case (supra) is relied on by the learned counsel for the review petitioner, making specific reference to paragraph 10 thereof, to urge that the reliefs, which the plaintiff can claim and the Court can grant under Section 92, are only those enumerated specifically in the different clauses of that section. The said precedent was rendered by the Apex Court holding that a relief praying for a declaration that the properties in the suit are trust properties does not come under any of the clauses of section 92. That principle of law has not changed even after the amendments of section 92 of the Code of Civil Procedure, made after the aforesaid decision was rendered by the Apex Court. 6. The decision of the Allahabad High Court in Uma Sankar’s case (supra) is also that a relief by way of declaration that the property is an endowed property so as to bind a stranger cannot be granted in a suit under section 92, thereby meaning that an issue between the plaintiff and a third party to the alleged trust, as to the existence of the trust or whether the property in question is a trust property, cannot be decided in a suit under section 92 of the Code of Civil Procedure. This is also a proposition, which is well settled. Learned counsel for the review petitioner made specific reference to paragraphs 12 and 13 of the said decision to state that the issue between the seventh defendant, review petitioner and the plaintiffs ought not to have been resolved in this second appeal. 7. I am afraid that the contentions raised in the review petition cannot be accepted. 8. Learned counsel for the review petitioner made specific reference to paragraphs 12 and 13 of the said decision to state that the issue between the seventh defendant, review petitioner and the plaintiffs ought not to have been resolved in this second appeal. 7. I am afraid that the contentions raised in the review petition cannot be accepted. 8. No issue arose for decision either in the second appeal or before the courts below as to whether the property in the possession of the seventh defendant is a trust property. This was an admitted fact. 9. The claim of the seventh defendant had always been that he is a lessee under the first defendant, who was a trustee. Therefore, in the judgment sought to be reviewed, it was specifically found that a lessee of a trustee is a person claiming under the trustee and therefore he is a person liable to be dispossessed along with the trustee, following the directions that could be issued within the parameters of section 92 of the Code, particularly, under clause (cc) of sub section (1) of section 92. 10. It was also to be remembered that on the strength of his case that he is a lessee, the review petitioner had carried the matter to the Land Tribunal, which had ultimately concluded that he is not entitled to fixity of tenure under the Kerala Land Reforms Act. 11. In paragraph 11 of my judgment dated 17-12-2004, I had dealt with the question as to whether the seventh defendant (review petitioner), who is admittedly only a lessee of the trustee, who has been ordered to deliver up, is liable to be dispossessed. I am of the considered view that, in doing so, I have not adjudicated any issue inter se the seventh defendant and the plaintiffs as to whether the property is a trust property. No such issue arose for consideration. I have also not granted any declaration as to any such nature of the property, since no such question arose for decision. The contents of the judgment sought to be reviewed are therefore, in my view, not, in any way, contradicting the law laid down by the Apex Court in Pragdasji Guru Bhagwandasji’s case or of the Allahabad High Court in Uma Sanker’s case. The contents of the judgment sought to be reviewed are therefore, in my view, not, in any way, contradicting the law laid down by the Apex Court in Pragdasji Guru Bhagwandasji’s case or of the Allahabad High Court in Uma Sanker’s case. May be, it was an omission that the said decisions were not referee to in the judgment sought to be reviewed, but, that by itself, is no ground for review. In the result, the review petition is without any merit and, therefore, it is dismissed. No costs.