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2018 DIGILAW 3454 (MAD)

Valsalam Nadar v. Mary Kanagam

2018-10-03

C.V.KARTHIKEYAN

body2018
JUDGMENT 1. S.A. No. 1098 of 1994 had been filed against the judgment and decree, dated 27.06.1994, made in A.S. No. 24 of 1993 on the file of the Subordinate Court, Kuzhithurai reversing the judgment and decree dated 23.03.1993 made in O.S. No. 468 of 1985 on the file of the Additional District Munsif Court, Kuzhithurai. 2. The defendant in the suit was the appellant in the second appeal. The suit was filed for partition. It had been dismissed by the trial Court. The first appellate Court reversed the findings of the trial Court. The second appeal had been admitted on the following substantial questions of law: "(1) Whether the lower Court is right in holding that the plaintiff is entitled to 55 cents, though the sale deed is for lesser extent? (2) Whether the lower Court is correct in holding that the plaintiff is entitled to larger extent when the sale deed described specified boundaries, within which he purchased the property?" 3. The second appeal was argued at length by the learned Counsel for the appellant and for the respondent. Thereafter, by judgment dated 12.01.2012, Honourable Mr. Justice N. Paul Vasanthakumar (as his Lordship then was), held as follows: "The Lower Appellate Court has given a finding considering the factual aspects, to the effect that the respondent herein/plaintiff got the land to an extent of 54, cents as per Ex-A1. The Commissioner appointed by the Trial Court with the consent of the defendant has given a report to an extent of 1 acre 40 cents. The property devolve on the appellant/ defendant was to an extent of 65 cents. Over and above 54 + 65 cents, there is excess land, which the Lower Appellate Court has ordered to be partitioned equally between the plaintiff and the defendant. The said finding is rendered based on the Commissioner's report and plan. Exs.A-1 to A-9 as well as the evidence of PW-1 and PW-2 and DW-1. There is no perversity in the said findings, calling for interference by this Court. No question of law arises for consideration in this second appeal and consequently the second appeal is dismissed. No costs." 4. No further appeal was preferred in the Supreme Court as against the said judgment. However, the appellant filed the review application in Rev. Aplc. (MD) No. 27 of 2012. The said review application was not been admitted. No question of law arises for consideration in this second appeal and consequently the second appeal is dismissed. No costs." 4. No further appeal was preferred in the Supreme Court as against the said judgment. However, the appellant filed the review application in Rev. Aplc. (MD) No. 27 of 2012. The said review application was not been admitted. Notice was ordered and the respondent had entered appearance. 5. In the grounds seeking review of the judgment of this Court in S.A. No. 1098 of 1994, dated 12.01.2012, it had been stated that there is an error apparent on the face of the record, namely, description of the land. It had been stated that the suit was bad for non-joinder of necessary parties. It was also stated that the plaintiff had not proved that she is entitled to an extent of 55 cents in O.S. No. 2019-A in the suit property. 6. Before discussing the facts any further, it must be mentioned that the case of the plaintiff and the defendant had been extracted in the judgment in the second appeal as follows: "3. The case of the plaintiff/respondent before the Trial Court was that the suit property in Old S. No. 2019-A, an extent of 118 cents at Medhukummal Village was resurveyed as Resurvey No. 113/6 of Kulapuram Village with an extent of 1 acre 45 cents. In the year 1967, a partition took place between Chandrika Bai and the defendant in the suit and the defendant was allotted 63 cents, out of the total extent of 118 cents. However, factually 145 cents of land were available for partition. The remaining extent has to be equally divided between the plaintiff and the defendant as the said property is in joint possession and enjoyment of the plaintiff and the defendant. In the suit property, i.e. S. No. 113/6, plaintiff and defendant alone are claiming rights. 4. The suit was opposed by the defendant/appellant herein contending that old S. No. 2019/A of Medhukummal Village was having an extent of 6 acres 86 cents and not 118 cents as stated in the plaint. On 18.03.1105 (ME) partition took place and the entire property was divided into six plots and the father of the defendant viz. Kochu Nadar was allotted 'E' schedule property, i.e. 5th plot containing 65 cents. After the demise of the said Kochu Nadar, the property devolved on the defendant. On 18.03.1105 (ME) partition took place and the entire property was divided into six plots and the father of the defendant viz. Kochu Nadar was allotted 'E' schedule property, i.e. 5th plot containing 65 cents. After the demise of the said Kochu Nadar, the property devolved on the defendant. According to the defendant, after the said partition, there is no common enjoyment and therefore there is no property available for further partition." 7. In the grounds of second appeal, this reduction of facts had not been challenged. If the review applicant had grievance over the findings, then proper course would have to be filed a further appeal before the Supreme Court. 8. The review application has been pending for past more than six years without any progress being made. However, the review applicant had the benefit of interim stay in M.P. (MD) No. 1 of 2012, wherein, stay of passing of final decree had been granted. Effectively, without filing an appeal before the Supreme Court, the judgment of this Court in S.A. No. 1098 of 1994 had been stayed and there had been no further progress or conclusion reached in the suit, which had been filed in 1985 more than three decades ago. This delay had only caused further applications to be filed and further intervenors to lay a claim of title or possessory right over the suit property. 9. C.M.P. (MD) No. 7955 of 2018 had been filed by the applicant seeking permission to implead the proposed second applicant, R. Robin Edward, on the ground that the applicant, his son-in-law Jagadeesh Kumar, his daughters, Shiji Jaculin Rose and Shoba Jaculin Rose and his son Shijin Jaculin Rose had sold their entire share in the suit property to the said R. Robin Edward by a registered sale deed No. 600 of 2018, dated 19.02.2018 registered in the Office of the Sub-Registrar, Kollemcode. Along with said application, a compromise memo was also filed. This Court had an occasion to examine the parties to the compromise memo, namely, the review applicant, Valsalam Nadar, the respondent, Mary Kanagam and the proposed second applicant, R. Robin Edward, who affirmed to the execution of the memo of compromise. 10. But, another entrant has laid a further claim over the suit property. 11. This Court had an occasion to examine the parties to the compromise memo, namely, the review applicant, Valsalam Nadar, the respondent, Mary Kanagam and the proposed second applicant, R. Robin Edward, who affirmed to the execution of the memo of compromise. 10. But, another entrant has laid a further claim over the suit property. 11. C.M.P. (MD) No. 8924 of 2018 had been filed by another third party, J.S. Gladsin Jerresh, who claimed to be a necessary party and who sought to be impleaded as second respondent in the review application. The affidavit filed in support of the said application, was being filed not only on behalf of the applicant but also on behalf of his mother, K.J. Suseela and his sister J.S. Gladsin Jemi. It had been stated that the father of the deponent had entered into agreement of sale with the review applicant's daughter, Shiji Jacquline Rose and son-in-law, Jagadeesh Kumar, on 28.07.2016 and another daughter Sheba Jacquline Rose, on 28.07.2016 and with his son Shijin Jacquline Rose, on 29.11.2016. It had been stated that the father of the deponent died on 17.07.2017 and consequently, the deponent had a existing right over the suit property and he sought to be impleaded as second respondent in the review application. 12. Counters were also filed by the contesting parties, challenging the averments made. 13. Heard arguments advanced by Mr. K.N. Thampi, learned Counsel for the review applicant, Ms. M. Maria Vinola for the petitioner in C.M.P. (MD) No. 7995 of 2018, Mr. Niranjan S. Kumar, learned Counsel for the petitioner in C.M.P. (MD) No. 8924 of 2018 and Mrs. J. Anandhavalli, for the respondent in the review application. 12. As is seen, Rev. Aplc. (MD) No. 27 of 2012 had been filed on the basis that the suit was bad for non-joinder of necessary parties and that the plaintiff in the suit had not proved that she was entitled to the area of 55 cents in O.S. No. 2019-A in the suit property. Specific findings had been given by the learned Judge in the second appeal. If the appellant had any grievance over the same, the proper course would have to be filed a further appeal before the Supreme Court. Specific findings had been given by the learned Judge in the second appeal. If the appellant had any grievance over the same, the proper course would have to be filed a further appeal before the Supreme Court. The conduct of the parties in filing a review application, obtaining an order of notice alone and further obtaining an order of stay of further proceedings in execution cannot be appreciated. 13. The review application had been listed only on sporadic intervals. But much urgency is now being shown only because of the various transactions made over the property, with gay abandon. Having obtained stay of final decree proceedings in execution, the review applicant appears to have freely dealt with the property. The proposed second applicant in C.M.P. (MD) No. 7995 of 2018 is said to have purchased the property. The applicant in C.M.P. (MD) No. 8924 of 2018 claims to have an existing agreement of sale over the suit property. The property had been sold and simultaneously agreement of sale had been entered into by the review applicant and his son, daughter and son-in-law. Consequently, I hold that the intentions of the review applicant are not bona fide. I find no reason to consider the review application. 14. In the guise of filing a review application, the entire facts are sought to be reopened. The averments made in the grounds of appeal, though preceded by the words "error apparent on the face of record" do not actually point out any error. They have been made deliberately to stultify the execution of the judgment, for the past six years. More damage and harm has been done by dealing with the property ion the interregnum period. 15. Order 47 Rule 1 of CPC provides the grounds on which a review application can be preferred. It is stated that if there has been a discovery of new and important evidence, which was not to the knowledge of the applicant, or if there is mistake or error apparent on the face of record, a review application can be filed. 16. I find no reason to entertain the review application. Insofar as the proposed parties are concerned, they are at liberty to file necessary applications in the proceedings under Order 20 Rule 12 of CPC. The Additional District Munsif, Kuzhithurai, wherein O.S. No. 468 of 1985 emanated, may deal with on such application purely on their merits. 16. I find no reason to entertain the review application. Insofar as the proposed parties are concerned, they are at liberty to file necessary applications in the proceedings under Order 20 Rule 12 of CPC. The Additional District Munsif, Kuzhithurai, wherein O.S. No. 468 of 1985 emanated, may deal with on such application purely on their merits. I hold that the review application is not maintainable. Accordingly, Rev. Aplc. (MD) No. 27 of 2012 is rejected and the connected miscellaneous petitions are closed.