Ponnamma vs The Pooyappally Grama Panchayath
2021 Latest Caselaw 3441 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

     MONDAY, THE 01ST DAY OF FEBRUARY 2021 / 12TH MAGHA,1942

                       WP(C).No.22448 OF 2020(E)


PETITIONER:

               PONNAMMA
               AGED 76 YEARS
               D/O.KUNJIKUTTY, KUNNATHU HOUSE, CHENKULAM POOYAPPALLY
               PO, KOTTARAKKARA-691 537

               BY ADV. SHRI.M.C.JOHN

RESPONDENTS:

      1        THE POOYAPPALLY GRAMA PANCHAYATH
               POOYAPPALLY P.O., KOLLAM PIN-691 537 REP. BY ITS
               SECRETARY.

      2        SASIKALA P.V.
               W/O.SATHEESHKUMAR, AGED 55 YEARS, 'SYAMNIVAS',
               KURISUMMOODU, CHENKULAM P.O., POOYAPPILLY,
               KOTTARAKKARA-691 537

               R1 BY ADV. SMT.BINDU SREEKUMAR
               R2 BY ADV. SRI.C.S.SUNIL CHANDRAN
               R2 BY ADV. SRI.K.V.ANIL KUMAR

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-02-
2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.22448 OF 2020(E)

                                       2




                       W.P.(C) No.22448 of 2020
                    -----------------------------------------


                              JUDGMENT

Petitioner claims that she owns 2.2 Ares of land in resurvey

No.217/16 of Pooyappally Village. There exists a building in the said

land bearing No.XII/509. It is stated by the petitioner that though the

petitioner has executed Ext.R2(a) settlement deed on 28.03.2001 in

respect of a portion of the said land namely 1.34 Ares in favour of one

Thulasibhai, the younger sister of her daughters-in-law who are

siblings, the said document has not taken effect and the land and

building are still in her exclusive ownership and possession. It is also

stated by the petitioner that earlier, the second respondent, the

daughter of the petitioner who was residing elsewhere started residing

in the house in the land forcefully pretending that she is known as

Thulasibhai also and that Ext.R2(a) settlement deed is one executed

by the petitioner in her favour. It is further stated by the petitioner

that the second respondent got the property tax assessment in respect

of the building changed to the name of Thulasibhai by obtaining the

settlement deed kept by the petitioner in her house clandestinely. The

petitioner, in the circumstances, instituted a suit against the second WP(C).No.22448 OF 2020(E)

respondent for a decree of permanent prohibitory injunction

restraining the second respondent from interfering with her possession

over the said land measuring 2.2 Ares. The second respondent also

filed a suit in the meanwhile against the petitioner seeking a decree of

permanent prohibitory injunction restraining the petitioner from

executing any document in respect of the property covered by

Ext.R2(a) settlement deed. The suits were tried together and disposed

of in terms of Ext.P6 judgment. As per Ext.P6 judgment, the suit filed

by the petitioner was decreed and the suit filed by the second

respondent was dismissed. After Ext.P6 judgment, the petitioner

applied to the Panchayat for an ownership certificate in respect of the

building in the land. The request of the petitioner was however turned

down by the Panchayat in terms of Ext.P7 order stating that since

appeals preferred against Ext.P6 judgment are pending consideration,

the request of the petitioner for ownership certificate can be

considered only after the disposal of the appeals. Ext.P7 order is under

challenge in the writ petition.

2. The second respondent has filed a counter affidavit

stating that she is known as Thulasibhai as well; that Ext.R2(a) is a

document executed by the petitioner in her favour; that the building is

situated in the land covered by Ext.R2(a) document and that the

petitioner is therefore not entitled to the ownership certificate applied WP(C).No.22448 OF 2020(E)

for by her.

3. Heard the learned counsel for the petitioner, the

learned counsel for the first respondent as also the learned counsel for

the second respondent.

4. It is not clear from the materials on record as to

whether the building referred to in the writ petition is one situated

within the boundaries of the 1.34 Ares of land covered by Ext.R2(a)

document or outside its boundaries. Be that as it may, there are

categoric findings in Ext.P6 judgment that Ext.R2(a) is not a document

executed in favour of the second respondent and that the petitioner is

in exclusive possession of the entire 2.2 Ares of land, notwithstanding

the execution of Ext.R2(a) document. As noted, the case of the

petitioner is that Thulasibhai is the younger sister of her daughters-in-

law. That person has also given evidence in the suits disposed of as

per Ext.P6 judgment to the effect that though Ext.R2(a) settlement

deed was executed, the document was retained by the petitioner

herself and that she has therefore not effected mutation of the land

and further that despite the execution of the settlement deed, the

petitioner continued to be in possession of the land. In other words,

the person in whose favour Ext.R2(a) document is executed according

to the petitioner, does not seem to claim any right in the land and the

building therein.

WP(C).No.22448 OF 2020(E)

5. Coming to Ext.P7 communication which is impugned in

the writ petition, as noted, the reason stated therein is that the

appeals preferred against Ext.P6 judgment have not been finally

disposed of. In other words, it is with a view to protect the interest of

the second respondent that the Panchayat has taken such a stand in

the application preferred by the petitioner for ownership certificate in

respect of the building. It is conceded by the second respondent that

there is no interim order in favour of the second respondent in those

appeals. Once the civil court decides the rights of parties, in the

absence of any interim order by the appellate forum, the decision of

the civil court has to be obeyed and respected by all statutory

authorities. In the said view of the matter, according to me, Ext.P7 is

unsustainable in law.

In the result, the writ petition is allowed, Ext.P7 order is

quashed and the first respondent Panchayat is directed to grant the

ownership certificate sought for by the petitioner, subject to the

outcome of A.S. Nos.16 and 17 of 2017 pending before the Sub Court,

Kottarakkara. This shall be done within two weeks.

Sd/-

P.B.SURESH KUMAR

Mn JUDGE WP(C).No.22448 OF 2020(E)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER NO.A-

5566/2020 DATED 4.6.2020 ISSUED BY THE RDO., PUNALUR

EXHIBIT P2 TRUE COPY OF THE PROCEEDINGS NO.F1.7880/20 DATED 22.6.2020 ISSUED BY THE TAHSILDAR, KOTTARAKKARA.

EXHIBIT P3 TRUE COPY OF THE BASIC TAX RECEIPT DATED 16.6.2020 ISSUED BY THE VILLAGE OFFICER

EXHIBIT P3 (A) TRUE COPY OF THE CERTIFICATE NO.721/2020 DATED 13.7.2020 ISSUED BY THE VILLAGE OFFICER, POOYAPPALLY.

EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 22.8.20O1 SUBMITTED BY SATHEESH KUMAR FOR RENEWAL OF RATION CARD.

EXHIBIT P5 TRUE COPY OF THE RELEVANT PAGE OF THE SSLC BOOK OF THE SECOND RESPONDENT DATED NIL.

EXHIBIT P6 TRUE COPY OF THE COMMON JUDGMENT DATED 21.12.2016 IN OS.NOS.387 AND 406/2020 OF THE MUNSIFF'S COURT, KOTTARAKKARA.

EXHIBIT P7 TRUE COPY OF THE LETTER NO.A3-

2735/2020 DATED 20.8.2020 ISSUED TO PETITIONER BY FIRST RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE SALE DEED NO.1797/2000 DATED 30.08.2000 IN FAVOUR OF PETITIONER.

EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGES OF THE PROPERTY TAX REGISTER KEPT BY THE FIRST RESPONDENT.

EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED WP(C).No.22448 OF 2020(E)

19.10.2011 IN O.P.C NO.3360/2011 OF THIS HON'BLE COURT.

EXHIBIT P11 TRUE COPY OF THE RELEVANT PAGES OF RATION CARD.

EXHIBIT P12 TRUE COPY OF ADHAR CARD OF TULASI.

EXHIBIT P13 TRUE COPY OF THE CONSENT LETTER DATED NIL ISSUED BY TULASIBAI.

EXHIBIT P14 TRUE COPY OF LETTER NO.A3-

2735/2020 DATED 17.07.2020 ISSUED BY FIRST RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE LETTER NO.A3-

123/2020 DATED 11.01.2021 ISSUED BY FIRST RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE CONSENT LETTER DATED 18.01.2021 EXECUTED BY THULSIBAI IN FAVOUR OF PETITIONER.

RESPONDENTS' EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL AS 16/17 AGAINST OS 387/2010 DATED 6.3.2017 PENDING BEFORE THE HONOURABLE SUB COURT, KOTTARAKKARA

EXHIBIT R1(B) TRUE COPY OF THE MEMORANDUM OF FIRST APPEAL AS 17/17 AGAINST OS 406/2010 DATED 6.3.2017 PENDING BEFORE THE HONOURABLE SUB COURT, KOTTARAKKARA

EXHIBIT R1(C) TRUE COPY OF THE SETTLEMENT DEED DATED 28.3.2001 EXECUTED BY THE PETITIONER.

EXHIBIT R1(D) TRUE COPY OF THE TAX RECEIPT DATED 15.5.2018 PRODUCED BY THE 2ND RESPONDENT.

EXHIBIT R1(E) TRUE COPY OF THE FIRST PAGE OF THE S.S.L.C.BOOK OF THE 2ND RESPONDENT.

EXHIBIT R1(F) TRUE COPY OF THE RECORDS OF THE WP(C).No.22448 OF 2020(E)

RATION CARD NO.1208112003.

EXHIBIT R1(G) TRUE COPY OF THE COPY OF THE AADHAR CARD OF THE 2ND RESPONDENT.

EXHIBIT R1(H) TRUE COPY OF THE ONE AND THE SAME CERTIFICATE DATED 16.7.20.

EXHIBIT R1(I) TRUE COPY OF THE RELEVANT PAGE OF THE PARENTAL REGISTER OF THE YEAR 2003-04.

EXHIBIT R1(J) TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 11/1/2021 WHICH IS ISSUED BY THE 1ST RESPONDENT.

EXHIBIT R2(A) A TRUE COPY OF THE SETTELEMENT DEED NO.529/2001 OF THE SUB REGISTRY OFFICE,POOYAPPALLY.

EXHIBIT R2(B) A TRUE COPY OF THE TAX RECEIPT DATED 22.07.2010 ISSUED BY THE VILLAGE OFFICER, POOYAPPALLY.

EXHIBIT R2(C) A TRUE COPY OF THE TAX RECEIPT DATED 13.12.2019 ISSUED BY THE VILLAGE OFFICER, POOYAPPALLY.

EXHIBIT R2(D) A TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED 21.05.2015 ISSUED BY THE 1ST RESPONDENT

EXHIBIT R2(E) A TRUE COPY OF THE REPLY DATED 03.02.2011 ISSUED BY THE THALUK SUPPLY OFFICER,KOTTARAKARA.

EXHIBIT R2(F) A TRUE COPY OF THE APPEAL MEMORANDUM IN AS NO.16/2017 OF THE SUB COURT,KOTTARAKARA.

EXHIBIT R2(G) A TRUE COPY OF THE APPEAL MEMORANDUM IN AS NO.17/2017 OF THE SUB COURT,KOTTARAKARA.

EXHIBIT R2(H) A TRUE COPY OF THE ONE AND THE SAME CERTIFICATE DATED 16.07.2020 ISSUED BY THE VILLAGE OFFICER,POOVAPPALLY.

//TRUE COPY// PA TO JUDGE