Kerala High Court
Jimmy George Parel vs Tahasildar Lr on 23 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
WP(C) NO. 26035 OF 2023
PETITIONER:
JIMMY GEORGE PAREL
AGED 47 YEARS
S/O GEORGE THOMAS PARAYAIL HOUSE,PULIYANNOOR,
PULIYANNOOR P.O, KOTTAYAM DISTRICT,, PIN - 686573
BY ADV JESTIN MATHEW
RESPONDENTS:
1 TAHASILDAR LR
MEENACHIL, MINI CIVIL STATION, PALA,
KOTTAYAM DISTRICT, PIN - 686575
2 VILLAGE OFFICER
PULIYANOOR, MUTHOLY, PULIYANOOR.P.O,
KOTTAYAM, DISTRICT, PIN - 686574
3 SUB REGISTRAR
MEENACHIL, SUB REGISTRAR OFFICE, PALA
KOTTAYAM DISTRICT, PIN - 686575
4 THE MUTHOLY SERVICE CO-OPERATIVE BANK LTD NO. 1631
THEKKUMMURY,PULIYANOOR.P.O,
KOTTAYAM DISTRICT, PIN - 686573
REPRESENTED BY ITS SECRETARY
5 TOM GEORGE
AGED 48 YEARS
S/O GEORGE THOMAS, PARAYIL HOUSE, PULIYANOOR,
PULIYANOOR.P.O, KOTTAYAM DISTRICT, PIN - 686573
BY ADV MATHEW JOHN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C.) No.26035 of 2023
2
C.JAYACHANDRAN, J.
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W.P.(C.) No.26035 of 2023
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Dated this the 23rd day of May, 2024
JUDGMENT
The grievance espoused in this Writ Petition is that
mutation sought for by the petitioner on the strength of
Ext.P1 sale deed has been refused by the 2 nd
respondent Village Officer, by pointing out a mortgage
of the property with the 4th respondent bank.
2. Heard the learned counsel for the petitioner,
learned Government Pleader on behalf of respondents 1
to 3 and learned counsel for the 4th respondent. Notice
to the 5th respondent has already been dispensed with
as per order dated 08.08.2023.
3. The prayer sought for was seriously opposed
by the learned counsel for the 4 th respondent, pointing
out that the petitioner in collusion with his brother/ the
5th respondent, had committed fraud in the matter and
therefore, the discretion under Article 226 of the
Constitution may not be exercised in favour of the
petitioner, who approached this Court with unclean
hands. It was further elaborated that the property
having extent of 21 ares have been mortgaged with the
4th respondent bank by the 5th respondent, who is the
brother of the petitioner. As a matter of fact, much
before the mortgage, the property stood transferred by
the 5th respondent to the petitioner, which was
suppressed by the 5th respondent and which does not
find a place in the encumbrance certificate taken at the
time of mortgage. After a long lapse of time, the
petitioner has now come with a request for mutating
the property. Mutation is not liable to be granted,
especially in view of the fraud perpetrated by the
petitioner, is the sum and substance of the submission
made by the learned counsel for the 4th respondent.
4. This Court is not persuaded to refuse the
relief on the basis of the submission made on behalf of
the 4th respondent. This Court notice that the
allegations made by the learned counsel of the 4 th
respondent, are matters to be established in evidence
and the same cannot be readily inferred from the
materials on record. Even assuming that the 5th
respondent, who is the brother of the petitioner, had
committed any fraud on the 4 th respondent bank, the
same is no reason/ground to refuse relief to the
petitioner, only for the reason that the petitioner is the
brother of the 5th respondent. That apart, the issue
which is involved in this Writ Petition is one pertaining
to mutation of the property on the strength of a title
deed. The same cannot prejudice the interests of the 4 th
respondent bank in any manner. If the mortgage
created in favour of the 4 th respondent bank is valid and
legal, all remedies available in law doth exists in favour
of the 4th respondent for recovering the amounts due. If
the same is not valid for other reasons, refusal of
mutation is not going to improve the situation, insofar
as the 4th respondent bank is concerned. Therefore, the
objection cannot be recognised.
5. It is settled that a mutation cannot be
refused by citing a mortgage in respect of the property.
It is not within the province of the 2 nd respondent
Village Officer to refuse mutation on such a specious
ground.
6. In the circumstances, the Writ Petition is
allowed. There will be a direction to the 2 nd respondent
to effect mutation in respect of the subject property in
favour of the petitioner, if all other legal parameters for
the same are satisfied, within a period of one month
from today.
The Writ Petition is disposed of as above.
Sd/-
C. JAYACHANDRAN
JUDGE
SKP/23-05
APPENDIX OF WP(C) 26035/2023
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE SALE DEED NO.1585/2013 DATED
23.07.2013
EXHIBIT P2 A TRUE COPY OF THE APPLICATION DATED NIL
SUBMITTED BEFORE THE 2ND RESPONDENT
EXHIBIT P3 A TRUE COPY OF THE REQUEST DATED 08.03.2023
SUBMITTED ON BEHALF OF THE PETITIONER
EXHIBIT P4 A TRUE COPY OF LETTER NO. 91/23 DATED
07.03.2023 ISSUED BY THE 2ND RESPONDENT
EXHIBIT P5 A TRUE COPY OF THE REQUEST DATED 14.03.2023
SUBMITTED BEFORE THE 4TH RESPONDENT ON BEHALF
OF THE PETITIONER
EXHIBIT P6 A TRUE COPY OF LETTER NO.3/2023/2024 DATED
25.03,2023 ISSUED BY THE SECRETARY IN CHARGE OF
THE 4TH RESPONDENT BANK
EXHIBIT P7 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 07.03.2022 ISSUED BY THE 3RD RESPONDENT
RESPONDENTS' EXHIBITS:
EXHIBIT R4 A TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
OBTAINED BY SRI. RAJESH P NAIR ON BEHALF OF THE
4 TH RESPONDENT BANK DATED 08.07.2015
EXHIBIT R4 A(I) TRUE COPY OF THE ENCUMBRANCE CERTIFICATE DATED
31.10.2015
EXHIBIT R4 B TRUE COPY OF THE TAX RECEIPT DATED 29.06.2015
IN THE NAME OF THE 5 TH RESPONDENT
EXHIBIT R4 C TRUE COPY OF THE POSSESSION CERTIFICATE DATED
24.07.2015 OBTAINED BY THE 5 TH RESPONDENT FROM
THE VILLAGE OFFICER, PULIYANOOR
TRUE COPY
P.A. TO JUDGE
