Eerayi Nani vs State Of Kerala
2021 Latest Caselaw 841 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     MONDAY, THE 11TH DAY OF JANUARY 2021 / 21TH POUSHA, 1942

                      WP(C).No.27913 OF 2020(L)


PETITIONER:

               EERAYI NANI
               AGED 78 YEARS
               W/O. KRISHNAN, CHENDAYAD DESOM, PUTHOOR AMSOM,
               THALASSERY TALUK, KANNUR DISTRICT-670 692.

               BY ADVS.
               SRI.C.P.PEETHAMBARAN
               SMT.MINI.V.A.

RESPONDENTS:

      1        STATE OF KERALA
               REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT,
               GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

      2        THE DISTRICT REGISTRAR
               KANNUR, OFFICE OF THE DISTRICT REGISTRAR,
               KANNUR-670 001.

      3        THE SUB REGISTRAR
               SUB REGISTRAR'S OFFICE, KALLIKKANDY,
               KANNUR DISTRICT-670 693.

      4        THE TAHSILDAR (LAND RECORDS)
               TALUK OFFICE, THALASSERY, KANNUR DISTRICT-670 101.


               SMT CS SHEEJA, SR GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
11.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.27913 OF 2020                2




                                 JUDGMENT

Being aggrieved by the refusal on the part of the 3rd respondent in

registering the partition deed executed by the petitioner and the other co-

sharers in respect of the property which had devolved upon them, this writ

petition is filed under Article 226 of the Constitution of India.

2. The petitioner states that her late husband Sri. Krishnan was

the absolute owner in title and possession of property having an extent of

68.27 Ares in Sy. No.32 (Re-Sy. No.28/104, 29/120 and 4/127) of Puthoor

Village. He also owned 7 Ares and 45 sq.m. in Re-Sy. No.61/154 of

Puthoor Village. Though the extent of property mentioned in the

documents was 54.73 Ares, the actual extent of property within the four

boundaries on physical measurement and as per the survey plan is 68.27

Ares. During his lifetime, late Krishnan had assigned 12.85 Ares out of the

total extent of 68.27 Ares and what remains is 55.32 Ares in Old Sy. No.

32.

3. The petitioner states that after the death of her husband, she

along with her children approached the 4th respondent seeking to remit

the land tax. An enquiry was conducted by the Village Officer, Puthoor

with the assistance of the Taluk Surveyor, Thalassery. Objections were

called for from the neighbours as well as is evident from Ext.P1 notice.

Since no objections were raised by the neighbours, the petitioner and her

children were permitted to remit land tax for the property having an

extent of 55.32 Ares in Sy. Nos. 28/104, 29/120 and 4/127 of Puthoor

Village. This fact is evident from Ext.P2 tax receipt dated 16.6.2020. The

petitioner and her children decided to execute a partition deed for the

purpose of allotting respective shares to the children and to avoid any

disputes in future. Ext.P3 partition deed was presented for registration

before the 3rd respondent and as is evident from Ext.P4, online token was

also issued after receiving the requisite fees. Stating that there were

differences in extent in the document as well as in the descriptions in the

draft deed and also minor mistakes in the revenue records, the petitioner

was asked to correct the same. The petitioner approached the 4th

respondent who in turn issued Ext.P5 order, wherein it is stated that the

survey which was carried out has revealed that there is excess land in

possession of the petitioner. The Tahsildar has also ordered that the

petitioner can be permitted to remit tax in respect of the entire extent in

possession and an order was passed under Rule 28 of the Transfer of

Registry Rules. The petitioner produced the order before the 3rd

respondent who refused to register the partition deed by Ext.P6 order. The

difference in extent between the original title deed and the partition deed

is the reason stated for refusal.

4. According to the petitioner, the property was surveyed by the

revenue authorities and it was found that the petitioner is in possession of

excess land and it lies within the boundaries of her property. The revenue

authorities have also permitted the petitioner to remit tax. If that be the

case, there is no justification on the part of the 3rd respondent to register

the partition deed.

5. Being aggrieved, the petitioner is before this Court seeking to

quash Ext.P6 and also for a further direction to the 3rd respondent to

accept the original of Ext.P3 and to register the same in accordance with

law.

6. I have heard Sri. C.P.Peethambaran, the learned counsel

appearing for the petitioner, and Sri. C.S.Sheeja, the learned Senior

Government Pleader.

7. Before delving further it would be appropriate to refer to

certain precedents. In Savarimuthu Nadar Chellayan Nadar1 and

1(1957 KLT 825)

Krishnamurthi Iyer vs. Janaki Amma2 , it was held that when there is

a conflict between the area and the boundaries, the description of the

boundaries should be accepted in preference to the area mentioned in the

document for determining the extent of the land conveyed thereunder. It

was also held that this is not an inflexible rule. That which is more certain

and stable and the least likely to have been mistaken must prevail. In

Savithri Ammal vs. Padmavathi Amma 3, the Division Bench held that

in cases where there is a difference in the extent and the boundary

covered by a document, one or the other which is clearer and more

specific has to be preferred. The usual rule is that when there is a conflict

between the area and boundaries, the description of the boundaries

should be accepted in preference to the area mentioned.

8. It is apparent from Ext.P2 that the petitioner and her children

have been remitting tax in respect of property having an extent of 55.32

Ares in Re Sy. Nos. 28/104, 29/120 and 4/127 of Puthur Village. Ext.P1

and P5 reveals that the Tahsildar has conducted an enquiry and it was

revealed that the actual extent within the boundaries is 55.32 Ares.

Necessary orders have also been passed under Rule 28 of the Transfer of

Registry Rules. In Ext.P3 partition deed, the petitioner has stated the 2 (1957 KLT 886)

3 (1990 (1) KLT 187)

entire sequence of events and the enquiry conducted by the revenue

authorities and detailing the manner in which the petitioner and her

children came into possession of the extent shown in Ext.P3. The records

also reveal that the Village Officer, as well as the Taluk Surveyor, has

conducted an enquiry and they have concluded that the petitioner is in

possession of land in excess of what has been mentioned in their title

deed and that it lies within their boundaries. No one has raised any

objection to the said finding.

9. If reference is made to the provisions of the Registration Act,

1908 and the Rules framed thereunder, it can be seen that Rule 191

provides for the reasons for refusal to register a document. The refusal

will usually come under one or more of the heads mentioned in the Rule

which would invariably be quoted as authority for refusal. None of the

heads mentioned in Rule 67 or 191 provides that discrepancy in extent

can be a ground for declining to register the document. Though in Noble

John v. State of Kerala4, it has been held by this Court that the grounds

mentioned in Rule 191 of the Rules are not exhaustive and that the

Registrar can, for other valid reasons, declined to register a document,

such refusal should be for legally tenable reasons and the same should be

supported by statutory provisions.

4 [2010 (3) KLT 941]

For the aforesaid reasons, I am of the considered opinion that the

petitioner is entitled to succeed. Ext.P6 will stand set aside. If there is no

other infirmity in Ext.P3 and if the same is in order, the 3rd respondent

shall register the document as and when the same is presented before the

said authority.

This petition is disposed of with the above directions.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE sru

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LATEST NOTICE DATED 7.3.2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPTS DATED 16.6.2020 ISSUED BYT HE VILLAGE OFFICER, PUTHOOR.

EXHIBIT P3 TRUE COPY OF THE PARTITION DEED DATED 25.9.2020 PRESENTED BY THE PETITIONER FOR REGISTRATION BEFORE THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE ACKNOWLEDGMENT DATED 25.9.2020 FOR ONLINE TOKEN REGISTRATION ISSUED BY THE REGISTRATION DEPARTMENT.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 3.11.2020 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P6 TRUE COPY OF THE ORDER NO.279/2020 DATED 12.11.2020 ISSUED BY THE 3RD RESPONDENT.

RESPONDENTS EXHIBITS:NIL

//TRUE COPY//

P.A TO JUDGE