KUNNATH CHELLAPPAN NAIR Vs. VENKITADARI

JUDGEMENT

(1.) THIS is a petition under O. 47 R. 1 C. P. C. and Art. 226 of the Constitution of India seeking a review of the judgment dated 14-6-2006 in S. A. 174/1977 rendered by Honble Justice R. Bhaskaran. The review petitioner was the plaintiff in O. S. No. 118/1970 on the file of the Musiffs Court Palakkad.

(2.) I heard Advocate Smt. V. P. Seemanthini, the learned counsel appearing for the review petitioner and Adv. Sri. S. V. Balakrishna iyer, the learned counsel appearing for the contesting respondents.

(3.) THE suit instituted by the review petitioner, namely o. S. 118/1970 before the Munsiffs Court, Palakkad was one for a perpetual injunction against the 2nd defendant in the suit in respect of the properties detailed in plaint schedule I and plaint schedule II. Plaint schedule I consisted of 10 items altogether having an extent of 12. 86 acres. Plaint schedule II consisted of six items, altogether having an extent of 12. 82 acres. Pending suit, the review petitioner/plaintiff had got the plaint amended incorporating a prayer for recovery of 2. 46 acres from Item 1 of plaint schedule No. I. Subsequent to the filing of the above suit the review petitioner had filed another suit for injunction as O. S. 126/77 before the very same court for a perpetual injunction in respect of plaint schedule II. Alleging that, pending suit, the defendants trespassed upon the plaint schedule item II items, the review petitioner had amended the plaint incorporating a prayer for recovery of plaint schedule No. II. Both the aforementioned suits, after separate trial, were dismissed on 12-12-198 5. Two appeals were preferred by the review petitioner as A. S. Nos. 42/1985 and 42/1986 before the Sub Court, palakkad. Both the said appeals were heard together and disposed of by a common judgment dated 12-1-1987 whereby the appeals were remanded to the trial court. THE remand orders were challenged by the defendants who filed C. M. As before this Court. On 25-3-1987 the C. M. As were allowed and the lower appellate court itself was directed to dispose of the appeals on merits. THEreafter, on 22-11-1989, both the appeals were dismissed on merits. Aggrieved by the appellate decrees the review petitioner preferred two Second Appeals as S. A. 174/90 and 531/90. S. A. 174/90 arose out of the earlier suit O. S. 118/1970 and S. A. 53/90 arose out of the subsequent suit, O. S. No. 126/1977. As per Annexure A2 common judgment dated 9-12-1997 this court dismissed S. A. 531/90 but partly allowed S. A. 174/90. This court was inclined to declare the review petitioners title over the properties in plaint schedule I and II and granted a decree for recovery of possession of 2. 46 acres out of Item 1 of plaint schedule I and granted a decree for perpetual injunction with regard to the remaining items in plaint schedule I. However, this court, wrongly observing that there was no recovery of possession sought in respect of plaint schedule II, declined to grant any relief thereof except the declaration of title of the plaintiff over the same. THEre is no dispute that although the dismissal of S. A. 531/90 arising from O. S. 126/77, has become final, it does not affect the review petitioner since the prayer in that suit was for a perpetual injunction in respect of the present plaint schedule II. Since the review petitioner/plaintiff had already got the plaint in O. S. 118/70 amended seeking recovery of possession of plaint schedule II, the review petitioner was evidently interested in getting the relief of recovery of possession and not injunction. But, as already observed, this court while disposing of S. A. 174/90 on 9-12-1997 did not grant the relief of injunction in respect of plaint schedule II on the premise that the said properties were in the possession of the 2nd defendant and erroneously observed that there was no relief of recovery claimed regarding plaint schedule II. THE judgment dated 9-12-1997 in S. A. 174/90 was not further appealed against by the review petitioner/plaintiff. It was the defendants who filed civil Appeal 976/98 before the Honble Supreme Court challenging the judgment in S. A. 174/90. THEy were evidently aggrieved by the declaration of title granted in respect of plaint schedule I and II and the relief of recovery of 2. 46 acres granted in respect of item No. I of plaint schedule I.