'Belated, Inconsistent Pleas': Kerala High Court Dismisses Review Petition Claiming Possession Over Govt Held Land After 70 Yrs

In the facts of the case, the petitioner has approached the High Court with a review petition against a judgment dated February 19, 2024, rendered in a writ petition of 2015 involving a property dispute. In review, he claims ownership over the disputed property using two additional documents as evidence.

The Court held that the petitioner for 70 years acknowledged that the ownership of the property remained with the government and disputed his rights based on possession. However, the Court noted that the petitioner adopted a different stance in the review petition by asserting title over the property using some additional documents.

Dismissing the review petition, Justice P.V.Kunhikrishnan held that the Court cannot accept belated contention based on the maxim “Vigilantibus non dormientibus jura subveniunt”.

“Now, after about 70 years, the review petitioner is taking a stand that they have got title to the property. Such a belated contention cannot be accepted by this Court. The review petitioner is taking a stand from 1952 onwards that the property in dispute is in their possession, but the ownership is with the Government. After about 70 years, when this Court passed the impugned judgment in this review petition, the review petitioner is taking a stand that the review petitioner has got title to the property. This is nothing but an inconsistent plea by the review petitioner.”

The petitioner in the review petition submitted two additional documents as evidence before the Court stating that he was unaware of its existence previously. The petitioner in the review argues that these new documents establish his acquisition of the property from its original owner warranting the review of the judgment under Order 47 Rule 1 of the CPC.

The Court stated that the review petition is not maintainable under Order 47 Rule 1 of the CPC against a writ petition filed Article 226 of the Constitution of India. Relying upon Cheriya koya v. UT Administration of Lakshadweep (2023), it was stated that judgment rendered in a writ petition within the jurisdiction under Article 226 and Article 227 of the Constitution of India would not be regulated by the review provisions in the CPC. It said, “In light of the above, the provisions of Civil Procedure Code is not strictly applicable, but of course, the principle of review can be adopted by this Court.”

The Court also found that the review petition memorandum contradicts the stance adopted by the petitioner in the counter filed in the writ petition. Relying upon Apex Court decision in Suzuki Parasrampuria Suitings Private Limited v. Official Liquidator of Mahendra Petrochemicals Limited (in Liquidation) (2018), the Court held that the party cannot take contradictory defences in the same proceedings.

The Court found that since 1952, the petitioner took a stance that the property was in his possession but the ownership remained with the government. It held that even in the writ petition of 2015, such a contention was not taken and a judgment was rendered. It thus stated that the petitioner in review cannot claim to have acquired title to the property while challenging the judgment in the review petition.

Accordingly, the Court dismissed the review petition.

Counsel for Review Petitioner: Advocates M Sasindran, Satheeshan Alakkadan

Counsel for Respondents: Senior Government Pleader Aswin Sethumadhavan, Advocate Sajith Kumar V

Citation: 2024 LiveLaw Ker 272

Case Title: Kallodi St. George Forane Church V K Mohandas

Case Number: RP NO. 445 OF 2022

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