Kerala High Court
M.Abdul Kalam vs The District Collector on 5 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 39958 OF 2016
PETITIONER/S:
1 M.ABDUL KALAM (EXPIRED)
AGED 69 YEARS
THAHA MANZIL, NEAR SBT, VIZHINJAM, THIRUVANANTHAPURAM
ADDL.P2. LAILA KALAM
W/O.LATE M.ABDUL KALAM, THAHA MANZIL, NEAR SBT, VIZHINJAM,
THIRUVANANTHAPURAM.
ADDL.P3 RAKEEB,
S/O.LATE M.ABDUL KALAM, THAHA MANZIL, NEAR SBT, VIZHINJAM,
THIRUVANANTHAPURAM.
ADDL.P4 MUJEEB A.K.,
S/O.LATE M.ABDUL KALAM, THAHA MANZIL, NEAR SBT, VIZHINJAM,
THIRUVANANTHAPURAM.
ADDL.P5 HASEEB A.K.,
S/O.LATE M.ABDUL KALAM, THAHA MANZIL, NEAR SBT, VIZHINJAM,
THIRUVANANTHAPURAM.
[ADDL.P2 TO P5 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED
SOLE PETITIONER AS PER ORDER DATED 5/4/19 IN I.A.NO.1/2019 IN
WP(C)39958/2016.]
BY ADVS.
SRI.SAJU JOHN
SRI.PIRAPPANCODE V.S.SUDHIR
RESPONDENT/S:
1 THE DISTRICT COLLECTOR
COLLECTORATE, THIRUVANANTHAPURAM 695043
2 THE REVENUE DIVISIONAL OFFICER
THIRUVANANTHAPURAM, CIVIL STATION, KUDAPPANAKUNNU,
THIRUVANANTHAPURAM 695043
3 THE ADDITIONAL TAHSILDAR
NEYYATTINKARA, ALUMMOOD, NEYYATTINKARA 695121
W.P.(C)NO.39958 OF 2016
2
4 THE MANAGER
STATE BANK OF TRAVANCORE, CHALA BRANCH, THIRUVANANTHAPURAM
695036
5 THE SUB COLLECTOR
COLLECTORATE, THIRUVANANTHAPURAM 695043
6 ADDL.R6
THE SURVEYOR,
ATTACHED WITH TALUK OFFICE, NEYYATTINKARA, THIRUVANANTHAPURAM
[ADDL.R6 IS SUO MOTU IMPLEADED AS PER ORDER DATED 05.04.2024
IN WP(C) 39958/2016]
BY ADVS.
SRI.R.S.KALKURA, SC, SBT
OTHER PRESENT:
SMT. K.B SONY -GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C)NO.39958 OF 2016
3
JUDGMENT
1. The petitioner has filed this Writ Petition challenging
Ext.P27 order dated 19.08.2015. The petitioner died
during the pendency of the writ petition and his legal heirs
were impleaded as Additional Petitioners Nos. 2 to 5.
2. Ext.P27 Order is passed on the basis of a Request made
by the Respondent No.4/Manager of Bank for effecting
mutation with respect to 86.250 cents of land which form
part of 96.250 cents of land derived by the Bank as per
Ext.R4(a) Sales Certificate dated 04.03.1986 issued in
E.P.No.412/1983 in O.S.No.305/1981 of the Additional Sub
Court II, Thiruvananthapuram. Ext.R4(a) shows that, as
per the said Sale Certificate, the Respondent No.4 derived
39 Ares of land in survey No.287/7 of Kottukal village (now
Vizhinjam Village).
3. The grievance of the petitioner is that, in Ext.P27
W.P.(C)NO.39958 OF 2016
order, three items of property belonging to him i.e. (1) 0.70
Ares in Resurvey No.374/21, (2) 2.43 Ares in Re-survey
No.374/22 and 3.81 Ares in Re-survey No.374/13 of
Kottukkal village covered by Sale Deed No.1368/1977 of
SRO Venganoor (Ext.P2) of his father were recorded in the
name of respondent No.4. According to him, the property
covered by Ext.P2 is derived by him as per Ext.P6
Settlement Deed No.1919/1992 of SRO Venganoor.
According to him, Ext.P27 Order was passed on the basis
of certain Reports of the Respondent No.3 dated
21.07.2012, 10.12.2012, 04.02.2013 and 26.06.2015
numbered as G1-23/2005 without serving copies of the
said Reports to him. He has also the contention that he
was not heard before passing Ext.P27 order.
4. As revealed from the pleadings, the father of the
petitioner had 96.250 cents of land in survey No.287/7 of
Vizhinjam village as per Document No.4326/1967of SRO
Venganoor which is produced as Ext.P1 in this writ
petition. The father of the petitioner had another 95 cents
of land in survey No.287/7 of Vizhinjam Village (old
W.P.(C)NO.39958 OF 2016
Kottukal village) as per Sale Deed No.4326/1967 of SRO
Venganoor which is produced as Ext.P2 in this writ
petition. Equitable mortgage of the property covered by
Ext.P1 was created by the petitioner and his father in
favour of the Respondent No.4/ Bank for availing loan. On
account of default in repayment of the loan, Bank filed
O.S.No.305/1981 in the Sub Court, Thiruvananthapuram
and obtained a decree for recovery of money from the
petitioner and his father. The Bank filed E.P.No.412/1983
to execute the decree and, in court sale, the Bank bid the
auction and the sale was confirmed in favour of the Bank
and accordingly Ext.R4(a) Sale Certificate was issued to
the Bank. According to the petitioner, with respect the
property covered by Ext.P2 also, equitable mortgage was
created with Bank of India which was later redeemed and
thereafter the said property was settled in favour of the
petitioner as per Ext.P6 Document.
5. The counsel for the petitioner submitted that the
petitioner does not claim any property covered by Ext.P1.
The learned counsel for the Respondent No.4 submitted
W.P.(C)NO.39958 OF 2016
that the respondent No.4 does not claim any property
covered by Ext.P2 Sale Deed.
6. Both the counsels invited my attention to the
Ext.P5(b) Plan annexed with Ext.P5(a) decree, by which
the property covered by Ext.P1 is identified as
'TUCDEFGHXPQRS' extending to 96.250 cents, 86.250
cents after deducting 10 cents as 'kudikidappu' from
96.250 cents is identified as 'TUCDEVWGHXPQRS'. The
property in the possession of the father of the petitioner
covered by Ext.P2 Sale Deed after deducting 'kudikidappu'
is identified in two plots marking the same as 'HIJKYX'
extending to 21.200 cents and 'PXZMNO' extending to
47.300 cents thus totaling 68.500 cents of property.
7. According to the petitioner he is entitled to get mutation
of the said 68.500 cents of land and the said extent is
mutated in his name as revealed from Ext.P9 Land tax
Receipt as per Thandapper No.10800. In Resurvey the
extent is recorded as 11 ares in Resurvey No.374/13, 3ares
in Resurvey No374/22,6.5 ares in No.374/11 and 8 ares in
W.P.(C)NO.39958 OF 2016
No.374/21 in Thandapper No.9022 of Vizhinjam village as
revealed from Ext.P22 Land Tax Receipt.
8. According to the Counsel for the Respondent No.4, it
claims 86.250 cents of land covered by Ext.P1 which is
identified in Ext.P5 (b). I find from the various Requests
made by the respondent No.4 bank to the Revenue
Authorities that it has been seeking mutation of 86.250
cents of land in old survey No.287/7 which forms part of
Ext.P1 Document and Ext.R4(a) Sale Certificate.
9. I heard the Learned Counsel for the petitioner, Learned
Government Pleader for the Respondents Nos.1 to 3 and
Learned Counsel for Respondent No.4.
10. In view of the specific submissions made by the
Counsels for the petitioner and Respondent No.4, I am of
the view that controversy between the petitioner and
Respondent No.4 can be resolved by identifying their
respective properties with reference to Ext.P5(b) plan
admitted by both parties, since each of them claim the
W.P.(C)NO.39958 OF 2016
respective properties on the basis of distinct documents.
I find from Ext.P5(a) that the father of the petitioner is the
plaintiff and the respondent No.4 is the Defendant No.8 in
Ext.P5(a) decree. They cannot have any complaint against
Ext.P5(b) plan since they did not make any challenge
against Ext.P5(a) decree in which Ext.P5(b) plan is
annexed. I am of the view that if the revenue authorities
identify the properties on the basis of the undisputed
Ext.P5(b) plan and old survey records, the dispute between
the petitioner and the Respondent No.4 can be settled.
11. Going by the contentions raised by the petitioner that
various Reports referred in Ext.P27 are not furnished to
them and that he was not heard before passing Ext.P27
order, Ext.P27 order is liable to be set aside. Hence, I set
aside Ext.P27 order.
12. Since the authority who has to do the exercise of
measurement and identification of properties is the Taluk
Surveyor attached with the Taluk office, Neyyattinkara,
I suo motu implead him as the Additional Respondent No.6
W.P.(C)NO.39958 OF 2016
in this writ petition.
13. Accordingly I direct the respondent No.6 to measure
and identify 68.500 cents of land claimed by the petitioner
which forms part of Ext.P2 Document and 86.250 cents of
land claimed by the Respondent No.4 which forms part of
Ext.P1 Document and Ext.R4(a) Sale Certificate with
reference to old Survey Records and Ext.P5(b) Plan and
submit the Report to the Respondent No.3 within a period
of four months from the date of receipt of copy of this
judgment. On receipt of the Report from the Respondent
No.6, the Respondent No.3 is directed to consider the
claims of the petitioner and the Respondent No.4 with
respect to the mutation of their respective properties after
giving notice and after hearing them and to pass
appropriate orders in accordance with law within a period
of three months from the date of receipt of copy of the
Report from the Respondent No.6. The Respondent No.3
shall make necessary corrections in the Resurvey records
also if the same is required on the basis of the Report of
the Respondent No.6.
W.P.(C)NO.39958 OF 2016
14. I make it clear that, if there is any deficit or
encroachment either in Exts.P1 or P2 property, it is to be
suffered by the respective parties. The said extent cannot
be recovered from the property of the other party. I further
make it clear that parties are free to take necessary steps
for removing the encroachment, if any, in accordance with
law, if they require.
The Writ Petition is disposed as above.
Sd/-
M.A.ABDUL HAKHIM, JUDGE
Shg
W.P.(C)NO.39958 OF 2016
APPENDIX OF WP(C) 39958/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SALE DEED NO. 4326 DATED
07.12.1967 PURCHASING 96 CENTS OF PROPERTY BY THE
FATHER OF THE PETITIONER IN FORMER SURVEY NO. 287/7
OF VIZHINJAM VILLAGE
EXHIBIT P2 TRUE COPY OF THE SALE DEED NO. 1368 DATED
13.06.1977 PURCHASING 95 CENTS OF PROPERTY BY THE
FATHER OF THE PETITIONER IN FORMER SURVEY NO. 287/7
OF VIZHINJAM VILLAGE
EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS DATED 02.03.1987
SHOWING THE DELIVERY OF THE PROPERTY COVERED BY EXT
P1 SALE DEED AND SCHEDULED AS B SCHEDULE IN THE
PLAINT
EXHIBIT P4 TRUE COPY OF THE EXECUTION PETITION FILED BY THE
4TH RESPONDENT IN OS.NO. 305/81
EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 28.03.1990 OF THE
IIND ADDL. MUNSIFF'S COURT, NEYYATTINKARA IN OS.NO.
EXHIBIT P5 A TRUE COPY OF THE DECREE IN OS.NO. 1036/84
EXHIBIT P5 B TRUE COPY OF THE EXT C1 (A) PLAN APPENDED TO EXT P5
(A) DECREE
EXHIBIT P6 TRUE COPY OF THE SETTLEMENT DEED NO. 1919 DATED
03.09.1992
EXHIBIT P7 TRUE COPY OF THE CERTIFICATE NO. NDD/TM DATED
24.02.1997 OF THE BANK OF INIDA NEDUMANGAD BRANCH
EXHIBIT P8 TRUE COPY OF THE RECEIPT DATED 15.09.1992 ISSUED BY
THE VILLAGE ASSISTANT VIZHINJAM
EXHIBIT P9 TRUE COPY OF THE RECEIPT DATED 29.09.1992 ISSUED BY
THE VILLAGE ASSISTANT, VIZHINJAM
EXHIBIT P10 TRUE COPY OF THE TAX RECEIPT DATED 29.11.1990
ISSUED BY THE VILLAGE ASSISTANT, VIZHINJAM
EXHIBIT P11 TRUE COPY OF THE TAX RECEIPT EVIDENCING PAYMENT OF
TAX IN RESPECT OF THE PROPERTY IN RESURVEY NOS.
374/11, 374/13, 374/21 AND 374/22 BY THE PETITIONER
EXHIBIT P11 A TRUE COPY OF THE RESURVEY PLAN IN BLOCK NO.14 OF
VIZHINJAM VILLAGE
EXHIBIT P12 TRUE COPY OF THE ORDER NO. D.DIS/532/97/B
W.P.(C)NO.39958 OF 2016
(PV.30/97) DATED 19.04.2000 OF THE 2ND RESPONDENT
EXHIBIT P13 TRUE COPY OF THE ORDER NO. D.DIS/35077/2000/6 DATED
18.10.2003 OF THE 1ST RESPONDENT
EXHIBIT P14 TRUE COPY OF THE LETTER NO. GB 6720/96 DATED
07.10.2004 FROM THE 3RD RESPONDENT
EXHIBIT P15 TRUE COPY OF THE JUDGEMENT DATED 27.06.2008 OF THIS
HON'BLE COURT IN WPC.NO. 1049/2005
EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 17.02.2011 OF THIS
HON'BLE COURT IN WA.NO. 1899/2008
EXHIBIT P17 TRUE COPY OF THE REPORT DATED 21.11.2008 GIVEN BY
THE VILLAGE OFICER, TO THE TALUK OFFICE ALONG WITH
THE RELEVANT EXTRACT OF THE THANDAPER ACCOUNT NO.
EXHIBIT P18 TRUE COPY OF THE TAX RECEIPT DATED 27.09.2008
ISSUED BY THE VILLAGE OFFICER, VIZHINJAM
EXHIBIT P19 TRUE COPY OF THE TAX RECEIPT DATED 15.04.2009
ISSUED BY THE VILLAGE OFFICER, VIZHINJAM
EXHIBIT P20 TRUE COPY OF THE TAX RECEIPT DATED 06.04.2010
ISSUED BY THE VILLAGE OFFICER, VIZHINJAM
EXHIBIT P21 TRUE COPY OF THE TAX RECEIPT DATED 09.04.2012
ISSUED BY THE VILLAGE OFFICER, VIZHINJAM
EXHIBIT P22 TRUE COPY OF THE TAX RECEIPT DATED 16.04.2014
ISSUED BY THE VILLAGE OFFICER, VIZHINJAM
EXHIBIT P23 TRUE COPY OF THE THANDAPER ACCOUNT PERTAINING TO
THE PROPERTY OF THE PETITIONER IN THANDAPER NO.
9022 AND COMPRISED IN RE SY. NO. 374/13,-11 ARES,
374/22-3 ARES, 374/11-6.5 ARES AND 374/21-8 ARES
EXHIBIT P24 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY
THE VILLAGE OFFICER, VIZHINJAM
EXHIBIT P25 TRUE COPY OF THE LOCATION CERTIFICATE ISSUED BY THE
VILLAGE OFFICER, VIZHINJAM
EXHIBIT P26 TRUE COPY OF THE LOCATION MAP BEARING NO. 637/15
DATED 20.01.2015 ISSUED BY THE VILLAGE OFFICER,
VIZHINJAM
EXHIBIT P27 TRUE COPY OF THE ORDER NO. B1/6833/12 DATED
19.08.2015 OF THE SUB COLLECTOR, THIRUVANANTHAPURAM
EXHIBIT P28 TRUE COPY OF THE REPORT NO. G1/23/05 DATED
19.11.2015 OF THE 3RD RESPONDENT
W.P.(C)NO.39958 OF 2016
EXHIBIT P29 TRUE COPY OF THE DECREE IN OS.28/1969
RESPONDENT EXHIBITS
EXHIBIT R4(a) TRUE COPY OF THE SALE CERTIFICATE DATED 4/3/1986
EXHIBIT R4(b) TRUE COPY OF THE DELIVERY LIST ISSUED BY THE 11
ADDL.SUB COURT IN E.A.NO.1/1987
EXHIBIT R4(c) TRUE COPY OF THE LETTER DATED 18/10/1988 ISSUED BY
THE TAHSILDAR, NEYYATTINKARA TO THE 4TH RESPONDENT.
EXHIBIT R4(d) TRUE COPY OF THE LETTER DATED 1/11/1988 ISSUED BY
THE TAHSILDAR, NEYYATTINKARA TO THE 4TH RESPONDENT.
EXHIBIT R4(e) TRUE COPY OF THE LETTER DATED 27/1/1989
EXHIBIT R4(f) TRUE COPY OF THE LETTER DATED 29/3/1989
EXHIBIT R4(g) TRUE COPY OF THE LETTER DATED 20/7/1990
EXHIBIT R4(h) TRUE COPY OF THE LETTER DATED 26/7/1990
EXHIBIT R4(i) TRUE COPY OF THE LETTER DATED 24/8/1995
EXHIBIT R4(j) TRUE COPY OF THE LETTER DATED 28/10/1995 ISSUED BY
THE TAHSILDAR, NEYYATTINKARA.
EXHIBIT R4(k) TRUE COPY OF THE LETTER DATED 8/12/1995 ISSUED BY
THE TAHSILDAR, NEYYATTINKARA.
EXHIBIT R4(k) TRUE COPY OF THE LETTER DATED BY THE SPECIAL
TAHSILDAR, NEYYATTINKARA TO THE 4TH RESPONDENT.
EXHIBIT R(l) TRUE COPY OF THE LETTER DATED 22/12/1995 BY THE 4TH
RESPONDENT TO THE TAHSILDAR NEYYATTINKARA.
EXHIBIT R4(m) TRUE COPY OF THE SAID LETTER DATED 24/1/1996 ISSUED
BY THE TAHSILDAR, NEYYATTINKARA TO THE 4TH
RESPONDENT
EXHIBIT R4(n) TRUE COPY OF THE LETTER DATED 25/1/1996
EXHIBIT R4(o) TRUE COPY OF THE LETTER DATED 13/2/1996 TO THE 4TH
RESPONDENT.
EXHIBIT R4(p) TRUE COPY OF THE LETTER DATED 28/2/1996
EXHIBIT R4(q) TRUE COPY OF THE LETTER DATED 7/3/1996 ISSUED BY
THE VILLAGE OFFICER, VIZHINJAM TO THE 4TH
RESPONDENT.
EXHIBIT R4(r) TRUE COPY OF THE LETTER DATED 11/3/1996 ISSUED BY
THE 4TH RESPONDENT TO THE VILLAGE OFFICER,
W.P.(C)NO.39958 OF 2016
VIZHINJAM
EXHIBIT R4(s) TRUE COPY OF THE LETTER DATED 3/5/1996 ISSUED BY
THE VILLAGE OFFICER, VIZHINJAM TO THE 4TH
RESPONDENT.
EXHIBIT R4(t) TRUE COPY OF THE LETTER DATED 18/5/1996 ISSUED BY
THE TAHSILDAR, NEYYATTINKARA TO THE 4TH RESPONDENT
EXHIBIT R4(u) TRUE COPY OF THE LETTER DATED 7/6/1996
EXHIBIT R4(v) TRUE COPY OF THE CHALLAN DATED 7/6/1996
EXHIBIT R4(W) TRUE COPY OF THE NOTICE DATED 5/12/1996
