KARNAMALAI KONAR ALIAS KARANTHAMALAI KONAR Vs. B VENKATESWARAN

JUDGEMENT

(1.) FIRST defendant in the suit and who was the appellant in s. A. No. 964 of 1974 is the petitioner herein. FIRST respondent herein, as plaintiff, filed a suit for declaration and possession and for past and future mesne profits in respect of the suit properties which consist of two items. FIRST item is an extent of 7 cents of natham in R S. No. 200 of 1974 and second item is an extent of 23 cents of punja lands in R. S. No. 150/1-A1. The present dispute is confined to the first item, which was purchased by one Subramania Sastri in a Court-auction sale in O. S. No. 489 of 1900 as evidenced by Exhibit B-13 and thereafter his son Krishnaswami sastri became entitled to the properties There is no dispute regarding the identity of the suit properties. Krishnaswami Sastri had two wives and second defendant is his second wife and through his first wife he had a son by name ramamurthi Iyer and these two persons survived as the heirs of Krishnaswami sastri. There was a partition between Ramamurthi Iyer and the second defendant under Exhibit A-2 dated 19th January, 1963 in which item No. 1 was allotted to ramamurthi Iyer. It is the admitted case that when Krishnaswami Sastri was alive, first defendant's brother Alagappan took the properties on lease for locating a rice mill and a lease deed was executed on 23rd January, 1949, and he was paying the annual rent of Rs 100 inclusive of the usufructs of the trees and in or about 1956 it was revised as Rs. 12) per annum. After Alagappan's death, first defendant continued to enjoy the benefits of the lease While so, on 11th May, 1969, the plaintiff purchased the property from Ramamurthi Iyer and immediately issued a notice Exhibit A-4 to the first defendant on 25th june, 1969, terminating the lease and asking for vacant possession. It is after receipt of the said notice, first defendant had purchased the property from the second defendant on 3rd July, 1969, under Exhibit B-12. Therefore, the suit was filed by plaintiff for the reliefs claimed therein.

(2.) FIRST defendant claimed that he was unaware of the partition under Exhibit A-2 and that in regard to the properties after being leased to Alagappan in 1949, it is only the first defendant who has been continuously enjoying the properties as a lessee, and in respect of plantain trees and coconut trees he is the cultivating tenant and therefore he cannot be evicted. Regarding the first item, it being an Inam land having been taken over under Tamil Nadu Act XXVI of 1963, a patta had been issued in favour of the second defendant under section 15 (4) of the Act and therefore plaintiff has no title to the property under Exhibit A-1, and hence the notice to quit is invalid. Second defendant claimed that she has secured patta for the suit properties and being the owner of the properties she bad validly conveyed the properties under exhibit B-12. The trial Court decreed the suit and the appeal filed by the first defendant was rejected and which was also confirmed by this Court in S. A. No. 964 of 1974.

(3.) MR. Swaminathan would stoutly oppose these contentions by not only referring to Pakkiri Muhammad Rowther v. I. Swaminatha Mudaliar2 already referred to but also to the decision rendered in Soosai Anthony D' costa Nicholas D'Costa v. Francis Roche Anthony Kurush Roche (died and 19 others),3 wherein it was held that assuming that the counsel who argued the appeal earlier had specific instructions from his client to argue a certain point, and he failed to argue the point designedly or by inadvertence, it cannot by itself, without anything more, be enough to warrant a review of the judgment. In dealing with the authorities placed before the Court, it was held therein that it will be wholly unnecessary to refer to any of them because, each case has to be decided on the particular facts and no principle had been laid down firmly on this aspect as to apply to the case before it. This decision was relied upon in Bhagwati Singh v. Deputy Director of Consolidation and another4 to hold that 'once a case has been fully argued on merits and decided on merits, no application for review lies on the ground that the case should have been argued differently'. Yet another decision relied upon is the one in Ram Murti and others v. Bank of Patiala5 wherein it was held, merely because a particular point is silent in the previous order or judgment, it cannot be a ground for review for holding that there is a mistake or error apparent on the face of the record. As already stated, he has contended that incidentally, to a very limited extent, it would be necessary to find out whether the error which is sought to be made out is an error at all, and even so, whether it is apparent on the face of the records.