IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.07.2010
CORAM:
THE HONBLE MR. JUSTICE T.S.SIVAGNANAM
W.P.No.14702 of 2003 &
W.P.M.P.No.18369 of 2003
R.Velari Fernando (deceased) .. Petitioner
1. Manonmani Fernando
2. Hermalinda
3. Padmini
4. Thomas Roy
5. Nevision Joy Fernando
6. Xavier Anand
(Petitioners 1 to 6 are impleaded as legal heirs of the deceased petitioner as per Court order dated 23.12.2008 in W.P.M.P.No.933 of 2008 in WP.No.14702 of 2003)
... Petitioners
-vs-
1. The Government of Tamil nadu
rep. by its Secretary
Revenue Department, Chennai 9.
2. The Special Commissioner for
Land Administration
Ezhilagam, Chepauk,
Chennai 600 005.
3. S.Subramaniam
4. S.Solayapillai
5. S.Sankaralingam
6. S.Karthigeyan .. Respondents
Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorari to call for the records from the second respondent in proceedings Ne.Mu.Se.Ma.32/2002 (k4)/33033/2001 dated 31.3.2003 and quash the same.
For Petitioner : Mr.T.Velumani
For Respondents : Mr.V.Srikanth,G.A. R1 & R2
Mr.G.Krishnakumar-R3 to R6
******
O R D E R
The prayer in the Writ Petition is for issuance of a writ of certiorari to quash the order passed by the second respondent dated 31.3.2003, by which the second respondent set aside the order passed by the District Revenue Officer dated 6.3.2001, confirming the grant of patta in favour of the deceased first petitioner.
2. The facts which are necessary for the disposal of the writ petition are that the petitioner purchased the lands in Survey No.1490/A/1B in Mudivaithanandal village, Tuticorin Taluk, by sale deed dated 2.9.1982 measuring an extent of 6.40 acres. The Tahsildar, Tuticorin, by an order dated 27.1.1983 granted patta in favour of the petitioner and patta pass Book was also issued. During 1986, when updation of land revenue scheme was implemented, notices were issued to the various pattadars calling for objections if any in cancelling the new sub-divisions in the said survey number. Thereafter a patta pass book No.1385 was issued in favour of the petitioner for the total extent of 6.40 acres in Survey No.1490/A/1B. On 28.9.1998, the respondents 3 to 6 filed an appeal for cancellation of patta granted in favour of the petitioner and others and the Revenue Divisional Officer by an order dated 5.4.2000, cancelled the patta issued in favour of the petitioner and directed that patta should be issued in favour of respondents 3 to 6 for an extent of four acres with definite boundaries. As against such order of the Revenue Divisional Officer, the deceased first petitioner filed appeal to the District Revenue Officer and pending disposal of the appeal, an order of stay was also granted on 26.4.2000. Subsequently, the District Revenue Officer passed final orders allowing the appeal filed by the deceased first petitioner and confirmed the grant of patta in his name. As against such order, the respondents 3 to 6 herein filed revision before the second respondent and the second respondent by an order dated 31.3.2003, allowed the Revision Petition. This order of the second respondent is impugned in the present Writ Petition.
3. Elaborate submissions have been made by both sides and the learned counsel for the petitioner as well as the learned counsel for the respondents 3 to 6 took pains to bring to the notice of this Court, the various documents filed in support of their contentions.
4. Heard the learned counsel appearing on either side and perused the materials available on record.
5. The case of the petitioner is that the second respondent failed to consider the effect of the sale deed executed in favour of the deceased petitioner and respondents 3 to 6 are not in possession of the property and they were not able to produce any document to prove their possession. Further, the second respondent failed to consider that even in the parent documents of the respondents 3 to 6, the boundary of the property is not clear and no specific boundary has been fixed in the document and that at present a criminal case has also been referred as mistake of fact. Further, it is contended that the respondents 3 to 6 have to work out their remedy before appropriate Civil Court for declaration of title as they are in possession of the property.
6. Further, it is contended by the learned counsel for the petitioner that no proper enquiry was conducted when the Revenue Divisional Officer passed the order in the appeal petition filed by the respondents 3 to 6 and no opportunity was granted to cross examine the respondents 3 to 6 before the Revenue Divisional Officer. On the above grounds, the learned counsel submits that the impugned order is liable to be set aside.
7. The learned counsel appearing for the respondents 3 to 6 would contend that they purchased the extent of 4 acres of land in Survey No.1490/A1 by sale deed dated 18.10.1962 and eversince they have in possession and enjoyment and the father of the respondents 3 to 6 applied for patta and the Tahsildar, Tuticorin, granted joint patta on 25.2.1963 along with 28 others. In patta No.816 and subsequently separate patta was issued in favour of their father in patta 3175 for an extent of 4 acres in Survey No.1490 A/1B2, that the petitioner purchased various extent of agricultural land in the village in Survey No.1490/A1 through power agent one Ramakrishnan from different vendors in the year 1982 and without producing any parent documents, obtained patta in 1983 by colluding with the revenue officials. Therefore, the respondents 3 to 6 filed appeal before the Revenue Divisional Officer and the Revenue Divisional Officer allowed the appeal and set aside the order of the Tahsildar. However, the District Revenue Officer reversed the order of the Revenue Divisional Officer on flimsy grounds and therefore, the respondents filed revision before the second respondent and the second respondent has rightly allowed the revision petition.
8.It is further submitted that respondents are in possession of the property from 1962 and the petitioner is not able to substantiate that they are in possession of the respondent property. Further, the second respondent on proper appreciation of the documents which have been exhibited before the Revisional Authority passed the impugned order and as such there is no arrear in such order.
9. Though elaborate submissions have been made on facts, the preliminary issue which has to be considered in the present case is as regards the jurisdiction of this Court to entertain a writ petition in a matter pertaining to grant of patta. This issue is no longer res integra and at this stage, it would be useful to refer to the decision of the Hon’ble First Bench of this Court in W.A.No.1342 of 1994 in Kuppuswami Nainar V. The District Revenue Officer & Others reported in 1995 (1) MLJ 426. wherein the Hon’ble Division Bench has held as follows:-
“….. that will not in any way affect the jurisdiction of the civil court, which has to decide the question without reference to the decision of the revenue authorities.
In a petition under Art. 226 of the Constitution, the question of title regarding immovable property cannot be gone into because a mass of evidence may be required for adjudicating the question of title. Even if the court is to interfere with the order under appeal, it is the other party under appeal, it is the other party who has to go to a civil Court and establish title. As far as the exercise of jurisdiction under Article 226 of the Constitution is concerned, it does not matter to it whether ‘A’ party goes to civil Court or ‘B’ party. Therefore, the Court is of the view that the question of title has to be decided by the civil court without reference to the order under question. Hence, the Court declines to interfere with the order challenged in the writ petition.”
10. The view taken by the Hon’ble Division Bench has also been subsequently followed in several decisions of this Court and the latest of such decision being reported in 2010 (1) CTC 388 [G.VEERABADIRAN AND ANOTHER Vs. THE DISTRICT REVENUE OFFICER AND OTHERS}.
11. A perusal of the impugned order reveals that the second respondent appreciated the documents of title filed by the parties and then came to a conclusion that the order passed by the Revenue Divisional Officer is untenable on facts and proceeded to confirm the order of the appellate authority. In view of the decision referred to above, ordinarily a Writ Petition should not be entertained with a view to rectify the entries in the revenue records, especially when there are disputed questions of title. In the instant case, as could be seen from the facts narrated above, both parties are claiming to be in possession of the property and both of them have got registered sale deeds executed in their names. Therefore, the Revenue Officials cannot adjudicate into the disputed questions of title and come to a conclusion that either the petitioner or the respondents 3 to 6 would be entitled to patta, especially when such question has to be decided only by a competent Civil Court where the parties will be entitled to adduce both oral and documentary evidence.
12. This Court exercising jurisdiction under Article 226 of the Constitution of India, cannot assume the role of Civil Court and adjudicate into the title of the parties to the property. In fact, the petitioners themselves have raised this ground in the Writ Petition by stating that the respondents 3 to 6 have to agitate their rights before the Civil Court.
13. In view of the binding precedents, I am unable to accept the contentions raised by the learned counsel for the petitioners while assailing the correctness of the impugned order. However, taking note of the fact that the Writ Petition has been admitted and is pending from 2003 onwards, and that an order of interim injunction restraining the respondents from being dispossessed from the property having been granted by this Court by an order dated 13.5.2001 in W.P.M.P.No.18369 of 2003, this Court is of the view that such statusquo regarding the possession shall be maintained and the entries which have been made in the revenue records on the date of filing the writ petition shall also be maintained and the parties should be given liberty to approach the Civil Court.
14. In the result, while declining to interfere with the impugned order, liberty is granted to the petitioner as well as the respondents 3 to 6 to agitate their right title and possession over the subject property before the competent Civil Court by leading oral and documentary evidence. It is needless to state that in civil proceedings, the Civil Court shall decide the Suit without reference to the findings rendered by the Revenue Officials in the patta proceedings namely the orders passed by the District Revenue Officer, Revenue Divisional Officer as well as the second respondent. As stated above, the status quo as regards the possession as on the date of filing of the Writ Petition shall continue to be maintained and the entries in the revenue records as it stood on the date of filing of the Writ Petition shall be maintained and they shall abide the decision taken in the Civil Proceedings to be initiated by the petitioner.
15. Writ Petition is disposed of accordingly. No costs. Consequently, connected Miscellaneous Petition is closed.
30.07.2010
rpa
Index :Yes
Internet:Yes
TO
1. The Government of Tamil nadu
rep. by its Secretary
Revenue Department, Chennai 9.
2. The Special Commissioner for
Land Administration
Ezhilagam, Chepauk,
Chennai 600 005.
T.S.SIVAGNANAM J,
rpa
Order in
W.P.No.14702 of 2003
30.07.2010