IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 19929 of 2005(V)
1. T.K. SATHYABABU, T.C.2/3192,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. THE DISTRICT COLLECTOR,
3. THE REVENUE DIVISIONAL OFFICER,
4. THE TALUK TAHSILDAR, TRIVANDRUM.
5. K.V. SARADA, T.C.2/3240,
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.M.BALAGOVINDAN
The Hon'ble MR. Justice V.K.MOHANAN
Dated :24/08/2009
O R D E R
V.K.MOHANAN, J.
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W.P (C).No. 19929 of 2005 - V
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Dated this the 24th day of August, 2009
J U D G M E N T
The challenge in this writ petition is against
Exts.P7 and P8 orders passed respectively by the
Revenue Divisional Officer and the District Collector,
Thiruvananthapuram. The case of the petitioner is
that he had purchased 4.644 cents of property lying in
Sy.No.1704/12-1 of Pattom Village as per Ext.P1 Sale
Deed No.67/1997 dated 6.1.1994. On the basis of the
above sale deed, he approached the Village
Authorities to get registered the Thandapper and
pattayam in his name and accordingly, appropriate
endorsement was made in the register and he was
given Thandaper No.10464. Ext.P2 is the tax receipt
dated 28.2.1994 issued from the Village Officer,
Pattom in the name of the petitioner with respect to
two properties lying in two different survey numbers,
but having a common Thandaper, i.e., 10464. Ext.P2
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would show that an extent of property of 4.644
cents is lying in Sy.No.1704/12-1 and an extent of
4.132 cents of property, in Sy.No.1704/4-1.
2. The specific case of the petitioner is that
when the petitioner approached the Village Officer
to remit the tax during the month of January, 2003,
he was told that the Tahsildar had transferred the
Thandapper in the name of the fifth respondent,
with respect to the property covered by Ext.P1.
According to the petitioner, subsequently, he
received Ext.P3 letter dated 25.1.2003 from the
Village Officer informing him that the property,
lying in Sy.Nos.1704/12-1 and 1704/4-1, altogether
8.776 cents of land covered by the Thandaper
No.10464 has been registered in the name of the
fifth respondent by assigning new Thandaper and
further informed that for the said reason, no tax can
be received from the petitioner.
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3. Aggrieved by Ext.P3 letter, the petitioner
preferred Ext.P4 appeal before the Tahsildar. The
fourth respondent, Tahsildar, after obtaining Ext.P5
report, without taking any decision on merit upon
the appeal filed by the petitioner, forwarded the
same to the Sub Collector, Thiruvanananthapuram
before whom no proceedings were pending
connected with the property. After hearing the
petitioner, the Revenue Divisional Officer passed
Ext.P7 order. As Ext.P7 order was against the
petitioner, he preferred revision petition before the
District Collector, who in turn passed Ext.P8 order.
Thus, the petitioner approached this Court with a
prayer to quash Exts.P7 and P8 orders and also with
a prayer to issue a writ of mandamus or order or
direction directing respondents 2 to 4 to retransfer
the revenue records in the name of the petitioner
regarding the property involved in Ext.P1 sale deed.
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It is also prayed for a direction to respondents 2 to 4
to cancel the transfer of registry in the name of the
fifth respondent with respect to 4.644 cents covered
by Ext.P1 by issuing a writ of mandamus or other
appropriate order or direction. Though the writ
petition was admitted on 4.7.2005, no counter
affidavit is seen filed so far by the fifth respondent.
4. The second respondent has filed a counter
affidavit mainly stating that this Court, by judgment
dated 4.6.2004 in W.P(C) No.33539 of 2003,
directed the Revenue Divisional Officer to find out
whether the transfer of registry as per PV 62/96
( ), which was the subject of challenge in
the appeal, has been effected based on the direction
of the Civil Court and if the said contention is
upheld, according to the respondents, this Court
held that the appeal would have to be dismissed.
The counter further says that accordingly, both
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parties were called for hearing and perused the
alleged PV No.62/96 and found that the said P.V.
was in consequence of the judgment of a competent
civil court. Thus, on the basis of such finding, the
appeal preferred by the petitioner was dismissed
and the District Collector has also dismissed the
revision petition preferred by the petitioner against
the order of the R.D.O.
5. I have heard Sri.G.S.Raghunath, learned
counsel appearing for the petitioner and also
Sri.Balagovindan, learned counsel appearing for the
fifth respondent and also the learned Government
Pleader.
6. Sri.Raghunath, learned counsel appearing
for the petitioner emphatically submits that on the
basis of Ext.P1 sale deed, in fact appropriate
endorsements were made in the revenue records
and as evidenced by Ext.P2 Tax Receipt, Thandaper
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No.10464 was given in the name of the petitioner
with respect to the property viz., 4.644 cents lying
in Sy.No.1704/12-1 of Pattom Village on the basis of
the sale deed No.67/1994 dated 6.1.1994. It is the
above patta and the property covered by the same,
transferred in the name of the fifth respondent, that
too without hearing the petitioner and denying the
opportunity to substantiate his claim.
7. Learned counsel for the petitioner took me
through Exts.P9,P10 and P11 and also Exts.P1 and
P13 to show as to how the title and ownership over
the property, namely 4.644 cents of property in
Sy.No.1704/12-1 of Pattom Village is derived.
According to the learned counsel, the said property
is entirely a different and distinct one from that of
the property of the fifth respondent. But, neither
the Tahsildar nor the R.D.O. and the Collector
examined the above aspect and came into an
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erroneous conclusion that the fifth respondent got
title and ownership over the property as per the
decision of the civil court. According to learned
counsel for the petitioner, on tracing back the
transfer that occurred connected with the property
in question, it can be seen that the petitioner’s right
over the property can be traced back from the right
of one Mr.David, who was the 40th defendant in
O.S.No.59/1950 and that of the fifth respondent,
from second defendant in the very same suit. It is
pointed out that the petitioner purchased the above
extent of property, which was lying as part of 40
cents of plot, which was identified as plot No.3 in C2
(C) plan of Ext.P12 (a). As far as the fifth
respondent is concerned, the property is having an
extent of 25 cents shown as Plot No.1 in C2(C) plan.
Thus, according to the learned counsel, the above
two properties are distinct and separate, but
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because of the arbitrary and illegal act of the official
respondents, the property purchased by the
petitioner as per Ext.P1 is seen adjusted or shown
as part of the property of the fifth respondent.
Therefore, learned counsel submits that Exts.P7 and
P8 are liable to be set aside.
8. On the other hand, the learned counsel for
the fifth respondent vehemently submits that the
present attempt of the petitioner is to get over the
adverse circumstances now prevailed against the
petitioner on the strength of the civil court
direction. It is also the contention of the learned
counsel that if there is any dispute regarding the
title, possession and ownership of the property, the
Official respondents have no jurisdiction to settle
such question in view of the prevailing rules and the
only course open to the petitioner is to approach the
civil court to establish his title, possession, right and
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ownership over the property and accordingly,
appropriate changes can be effected in the land
revenue register as per the provisions of the rules.
It is also the specific case of the counsel that the
present claim of the petitioner is not legal or valid,
as he had trespassed into the property in question
even after the property was cleared from all
encumbrances and encroachment in execution of
the decree passed by the civil court. According to
the learned counsel, the right of the fifth respondent
is approved by the civil court and finally, by this
court in a revision proceedings. Thus, according to
the counsel for the fifth respondent, the writ
petition is devoid of any merit and is liable to be
dismissed.
9. I have carefully considered the arguments
advanced by counsel for the contesting parties and
also the learned Government Pleader. I have also
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perused the materials available on record.
10. Considering the particular facts and
circumstances involved in this case, I am of the view
that this Court need not enter into the merit or
demerits of the case put forward by the contesting
parties and also the arguments advanced by the
counsel. In the light of Rule 16 of the Transfer of
Registry Rules, 1966 (for short ‘the Rules’), it is
crystal clear that the enquiry conducted under the
above Rule is only summary in nature and the only
purpose of such enquiry is to arrive at a decision
for fiscal purposes. The above rule further declares
that such decision does not affect the legal rights of
any person in respect of the lands covered by the
decisions in transfer of registry cases. In an
unequivocal language, Rule 16 further declared that
“the question of legal rights is always subject to adjudication
by Civil Courts and pattas will be revised from time to time in
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accordance with judicial decisions.” In the present case
also, in Ext.P8, the District Collector has held that
this property is the subject matter of several
litigations and accordingly, directed that while the
present ‘ ‘ is upheld, it is not final and
shall be subject to further decisions on ownership of
a competent civil court. So from Ext.P8, it is clear
that even though the ‘ ‘ is effected
finally in favour of the fifth respondent, the same is
not final, be that as it may, the same will be subject
to the decision on ownership by a competent civil
court.
11. As highlighted by the counsel for the
petitioner, the grievance is that though originally
Thandaper No.10464 was given in favour of the
petitioner on the basis of Ext.P1 sale deed, after
nine years, the property under the above Thandaper
is seen transferred in the name of the fifth
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respondent by assigning a fresh Thandaper to her.
According to the learned counsel for the petitioner,
the same was done under the guise of the civil court
order or judgment, but without hearing the
petitioner and without giving an opportunity to the
petitioner to raise his objection. It is also pointed
out that even if there is a civil court direction or
judgment, the same is not with respect to the
property now in the possession of the petitioner.
Thus, according to the learned counsel, as a result
of the above irresponsible, illegal and arbitrary
approach of the official respondents at the instance
of the fifth respondent, the valuable property of the
petitioner is seen transferred in favour of the fifth
respondent.
12. From the materials available on record
and in view of the contentions raised by the parties,
it can be seen that the Thandaper No. 10464 was
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given in the name of the petitioner, once, on the
strength of Ext.P1 sale deed, as evidenced by Ext.P2
tax receipt. There is no material or record to show
that the petitioner was given an opportunity of
being heard before P.V. 62/96 is effected.
Therefore, it can be seen that the Thandaper
No.10464 given to the petitioner was taken away
and the property covered by such Thandaper is seen
transferred or included under the new Thandaper,
given in the name of the fifth respondent in gross
violation of the principles of natural justice. When
the action of the authorities is condemned on the
ground of denial of natural justice and brought to
the notice of this Court, this Court cannot shut the
eyes and ignore the same. However, by Ext.P8
order, the District Collector has made clear that the
‘ ‘ effected as per PV 62/96 is not final
and subject to further decision on ownership of a
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competent civil court. If that be so, I am of the
view that the official respondents can be directed to
reconsider the matter after giving an opportunity to
the petitioner of being heard and if the final
outcome is not different from Exts.P7 and P8, no
further orders from the respondents are necessary.
On the other hand, if the outcome of the fresh
enquiry is a different one, the District Collector can
issue appropriate fresh orders on the basis of such
finding. But, such order will also be subject to
further decision on ownership, title and possession
of the competent civil court.
In the result, this writ petition is disposed
of, directing the second respondent to reconsider
the matter after having verified and ascertained as
to whether the property allegedly in the possession
of the petitioner, namely 4.644 cents in
Sy.No.1704/12-1 of Pattom village is, covered by
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the civil court direction, on the basis of which, new
Thandaper was given in the name of the fifth
respondent, after giving an opportunity to the
petitioner and the fifth respondent to present their
case and also after physical verification of the
property in the presence of the parties concerned,
which shall be got executed by the Taluk Tahsildar,
Trivandrum, the fourth respondent, if necessary
with the assistance of the survey officials. It is
made clear that the final outcome of such enquiry
and the order, that will be passed by the second
respondent, of course are not binding upon the civil
court, connected with any litigation with respect to
the property in question. The parties are also free
to challenge such order in any competent court.
Final order, as directed above, shall be passed by
the second respondent, as expeditiously as possible,
at any rate within a period of 45 days from the date
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of receipt of a copy of this judgment, which shall be
produced by the petitioner.
The writ petition is disposed of with the
above direction.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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Crl.R.P.NO. OF 200
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J U D G M E N T
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DATED: -2-2008
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