Madras High Court
This Writ Petition Had Been Listed ... vs The Revenue Divisional Officer on 14 July, 2021
WP No.12694 of 2017
W.P.No.12694 of 2017
R.SURESH KUMAR, J
This writ petition had been listed on last occasion under the
caption “For Clarification” at the instance of the learned Senior Counsel
for the writ petitioner. Last hearing, the grievances espoused on behalf of
the writ petitioner, by Mr.Sathish Parasaran, learned Senior Counsel
appearing for the petitioner was to be noted for the purpose of
clarification from this Court on the final Order dated 14.07.2021 made in
the writ petition. Because, as per the last direction in para No.35 of the
said Order, the Tahsildar has to necessarily effect the mutation in the
revenue records in respect of three patta numbers in the subject land as
stood on 23.04.2017, that is just one day prior to the impugned Order in
the writ petition passed by the revenue authorities.
2.Though, such a direction was issued, despite the effort taken by
the petitioner, the Tahsildar had not come forward to effect the mutation
in respect of the pattas as stood on 23.04.2017. Therefore, the petitioner
was not in a position to comply with the other directions given in the
very same Order, under which, the petitioner was expected to withdraw
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C.R.P.No.2044 of 2019, which is pending before this Court. On
considering the said plea raised by the learned Senior Counsel for the
petitioner, this Court, by Order dated 25.08.2021 has passed the
following Order.
“This matter has come up today under the
caption 'for clarification' at the instance of the
learned counsel appearing for the parties, where
the learned Senior Counsel appearing for the writ
petitioner, on instructions, has submitted that the
last direction given in the order, dated 14.07.2021
to the Tahsildar concerned to mutate the revenue
records as it stood on 23.04.2017 has not been
undertaken, though the copy of the order has been
produced by the writ petitioner, for more than two
weeks period. Also the learned Standing Counsel
submits that, he has received a news that the fifth
respondent is going to file an appeal against the
order, dated 14.07.2021 passed by this Court.
2.However, Mr.K.V.Sundararajan, learned
counsel appearing for the fifth respondent, on
definite instructions, has submitted that the order
of this Court dated 14.07.2021 has been accepted,
and in this regard, a memo has been filed before
the Ponneri Court, where the Suit is pending.
3.In view of the said submissions, the only
issue is that, the last direction given in the said
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order, to the Tahsildar should be complied with by
the Tahsildar and also, based on which, the writ
petitioner has to withdraw the Civil Revision
Petition referred in the order, which has already
been filed by the petitioner under Order VII Rule
11 of the Civil Procedure Code.
4.In this context, Mr.C.Kathiravan, learned
Government Advocate appearing for the official
respondents, would submit that, suitable advise
would be given to the Tahsildar concerned, to
comply with the last direction given in 14.07.2021
order of this Court, and report before this Court
with regard to the said compliance in next hearing
by one week, and hence he seeks one week time.
5.In view of the said submission made by
the learned respective counsel appearing for the
parties, as to whether any further clarification is
to be issued in this matter, can be decided, later
on, after ascertaining the compliance to be made
in this regard by the Tahsildar, as undertaken by
the learned Government Advocate as referred to
above.
6.Hence, post this matter for such
compliance on 01.09.2021 under the same
caption.”
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3.Pursuant to the said Order dated 25.08.2021, Mr.C.Kathiravan,
learned Government Counsel appearing for the official respondents has
submitted that the last direction referred to above given to the Tahsildar
concerned in fact has been complied with and in support of the same, he
has produced the copy of the proceedings issued by the Tahsildar, dated
31.08.2021 in Na.Ka.No.932/2016/aa1. Relying upon the said
proceedings, the learned Government Counsel would submit that, as per
the direction of this Court, three pattas namely Patta No.293, 1738 and
1729 stood in the name of the petitioner or their legal heirs or family
members in respect of the property in question as on 23.04.2017 stood
restored, thereby, the patta which stood in the name of the petitioner as
on 23.04.2017 in all the three pattas have been completely restored, he
contended.
4.However, Mr.Sathish Parasaran, learned Senior Counsel for the
petitioner has pointed out that in the proceedings dated 31.08.2021 of the
Tahsildar, he had also mentioned about patta No.1870, which was
subsequently given on 16.05.17 to and in favour of the fifth respondent
or their great grant parents namely, Minor Krishnaswamy Iyer, guardian
by S.S.Krishnaswamy Iyer and therefore, the said patta No.1870 if not
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cancelled, that will superfluous to the other three pattas, now stood
restored in favour of the petitioner, he contended.
5.However, the said apprehension on the part of the petitioner as
projected by the learned Senior Counsel may not be correct, because the
patta No.1870 was issued on 16.05.2017, of course, pursuant to the
impugned Order in the writ petition passed by the Sub Collector dated
24.04.2017 and in view of the said Order dated 24.04.2017 having been
quashed by the Orders of this Court in the writ petition and subsequently,
now the proceedings have been issued by the Tahsildar on 31.08.2021,
where the three above referred pattas stood in the name of the petitioner
since have been restored, the patta No.1870 will have no effect and
therefore, merely because the said factor has been mentioned in the Order
of Tahsildar dated 31.08.2021, the petitioner need not have any
apprehension that it will have a superfluous effect. Therefore, this
position is clarified as such.
6.Now, the pattas since had been restored in the name of the
petitioner, as per the last direction of the order of this Court dated
14.07.2021, as a sequel, the petitioner, as indicated in the Order dated
14.07.2021 of this Court, shall withdraw the aforesaid Civil Revision
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Petition in CRP No.2044 of 2019 immediately, preferably within a period
of ten days.
7.Insofar as the present status of the property is concerned, in view
of the pattas having been restored in favour of the petitioner by the
proceedings of the Tahsildar dated 31.08.2021, taking advantage of the
same, the petitioner shall not create any encumbrance of the property in
question or third party right. At the same time, the fifth respondent or any
one on his behalf shall also not indulge in any such creation of third
party right or encumbrance in the property concerned, till a verdict in this
regard is obtained from the Civil Court, where the suit has been filed by
the fifth respondent.
8.With these clarifications, the clarification sought for by the
petitioner is ordered accordingly.
03.09.2021
Index : Yes/No
pnm/sm
Note : Issue Order Copy on 03.09.2021.
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R.SURESH KUMAR ,J.
pnm/sm
Order made in
WP No.12694 of 2017
Dated:
03.09.2021
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IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED : 14.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
W.P.No.12694 of 2017
and W.M.P.Nos.13517 & 13518 of 2017
and 9831 and 26256 of 2018
D.H.Sarath Kumar ...
Petitioner
-Vs-
1.The Revenue Divisional Officer
Office of the Revenue Divisional Officer
Ponneri Taluk, Tiruvallur District.
2.The Tahsildar
Ponneri Taluk, Tiruvallur District.
3.The District Revenue Officer
Office of the District Revenue Officer
Tiruvallur District.
4.Mr.Dhandapani
Revenue Divisional Officer
Office of the Revenue Divisional Officer
Ponneri Taluk, Tiruvallur District.
(R4 struck off from array of parties as
per order dated 14.07.2021 by RSKJ
in WP No.12694 of 2017)
5.Mr.Krishnamurthy
S/o Late Balasubramanian
No.22, Anugraha Apartments
Shakkaria Colony, Choolaimedu
Chennai – 600 094. ..
Respondents
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Prayer : Writ Petition under Article 226 of the Constitution of India praying for
the issuance of a Writ of Certiorari calling for the records of the order passed
by the 1st respondent vide his proceedings dated 24.04.2017 bearing
Na.Ka.No.3415/2016/A1 and quash the same as being arbitrary, illegal,
without jurisdiction, violative of the provisions of Tamil Nadu Estates
(Abolition and Conversion into Ryotwari) Act, 1948 and also being violative of
the principles of natural justice.
For Petitioner : Mr.Sathish Parasaran, Senior
Counsel
for M/s.G.Vivekanand
For Respondents : Mr.Richardson Wilson,
Government Counsel – for RR 1 to 3
Mr.K.Rajkumar - for R4
Mr.K.V.Sundararajan – for R5
ORDER
The prayer sought for herein is for a Writ of Certiorari calling for the
records of the order passed by the 1st respondent vide his proceedings dated
24.04.2017 bearing Na.Ka.No.3415/2016/A1 and quash the same as being
arbitrary, illegal, without jurisdiction, violative of the provisions of Tamil Nadu
Estates (Abolition and Conversion into Ryotwari) Act, 1948 and also being
violative of the principles of natural justice.
2. There has been a dispute between the petitioner and the fifth
respondent with respect to the property situated at Methur Village, Ponneri
Taluk, Tiruvallur District in Survey Nos.404, 405, 406, 407, 410, 411, 412,
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413, 414, 415, 417, 418, 419, 420, 422, 423, 434 and 435 totalling to 54
Acres and 21 Cents. The case of the petitioner in short is that, the properties
originally belonged to one Prabala Seshachalayya, who executed a Will in the
year 1903 and the said Will got probated in the year 1904, where one
S.S.Krishnaswamy @ S.S.Krishnaswamy Iyer was appointed as an Executor,
who happened to be one of the son-in-law of the said Prabala
Seshachalayya. The said S.S.Krishnaswamy Iyer sold the properties in
question by a Sale Deed dated 31.03.1920 to the vendors of the petitioner's
father by a registered Sale Deed in Document No.1747 of 1920 in the office
of the Sub Registrar, Madras-Chengalpattu.
3. From the said purchasers under the 1920 Sale Deed, the
petitioner's father D.Srihari Rao purchased the property by a Sale Deed of
the year 1964 dated 07.12.1964, which was registered as Document
No.4992 of 1964 at the office of the Sub Registrar Office, Madras-
Chengalpattu. That is how the petitioner traced title over the properties and
according to the petitioner, in view of the said title, which the petitioner was
able to derive, the petitioner and before whom his father and the
predecessor-in-title, had been in continuous possession and enjoyment of
the property since 1920 and accordingly the patta had been issued in the
name of the petitioner's predecessor-in-title and subsequently in the name of
the petitioner.
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4. However, the contra case of the fifth respondent is that, the fifth
respondent Krishnamurthy is the son of Balasubramanian, who is the son of
Prabala Krishnaswamy, whose father was Prabala Seshachalayya. In other
words, the fifth respondent Krishnamurthy is the great grandson of Prabala
Seshachalayya. It is the further case of the fifth respondent that, though the
Will had been executed by Prabala Seshachalayaa in 1903 and got probated
in 1904, S.S.Krishnaswamy Iyer, the second son-in-law of Prabala
Seshachalayya was only appointed as an Executor. Therefore, in the year
1920, the only son ie., the grandfather of the fifth respondent Prabala
Krishnaswamy Iyer ie., Minor Krishnaswamy, since had become major, the
property, if at all had been sold, could have been sold only by the
grandfather of the fifth respondent Prabala Krishnaswamy ie., Minor
Krishnaswamy and not by S.S.Krishnaswamy Iyer. Therefore, according to
the fifth respondent, the very Sale Deed of the year 1920 itself is an unlawful
one or void and therefore, based on the said Sale Deed of the year 1920, the
predecessor-in-title cannot claim titles or the vendors of the petitioner's
father cannot claim title by virtue of the 1964 Sale Deed, as it is also equally
void. It is the further case of the fifth respondent that, even according to the
Revenue Authorities, sometime in 1950, under the Estates Abolition Act,
1948, the land in question of the village concerned has been taken over and
Ryotwari Pattas were issued. When that being so, the patta, if at all
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anything had been issued, that can be based on the Ryotwari Patta issued
under the Estates Abolition Act, 1948 and not based on the aforesaid two
Sale Deeds of 1920 and 1964.
5. It is the further case of the fifth respondent that, he came to know
these factors very late and therefore, the fifth respondent had given an
application to the revenue authorities to cancel the patta that stood in the
name of the petitioner or others and to re-issue the patta in the name of the
fifth respondent. The said application given by the fifth respondent was
considered by the Sub-Collector, Ponneri / first respondent herein, who
passed an order on 24.04.2017 by giving detailed discussion over the issue
raised therein and he had ultimately directed to cancel the patta stood in the
name of the petitioner and others, who are the sons of D.Srihari Rao, who
purchased the property, and restored the patta in the name of Minor
Krishnaswamy Iyer with Guardian S.S.Krishnaswamy Iyer ie., the grandfather
of the fifth respondent.
6. With this case and counter case, as projected by the petitioner as
well as the fifth respondent, felt aggrieved over the said order passed by the
first respondent dated 24.04.2017, cancelling the patta that stood in the
name of the petitioner and another and restoring the patta in the name of
the grandfather of the fifth respondent ie., Minor Krishnaswamy Iyer with
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Guardian S.S.Krishnaswamy Iyer, the petitioner has filed this writ petition,
challenging the said order with the aforesaid prayer.
7. Mr.Sathish Parasaran, learned Senior Counsel appearing for the
petitioner submitted that, the 1920 Sale Deed had been effected, whereby
the vendors of the petitioner's father purchased the property in question and
subsequently in 1964, the vendors of the petitioner's father sold the property
to the petitioner's father and while these two transactions had taken place,
the said Prabala Seshachalayya was alive as he expired only in 1968.
Therefore, only during the life time of Prabala Seshachalayya, these two sale
deeds were effected, pursuant to which patta has been changed in the name
of the owners of the property as per the sale deed. That is how the
petitioner claims title over the property as well as the patta.
8. Learned Senior Counsel would also submit that, after obtaining this
order dated 24.04.2017, which is impugned herein, the fifth respondent has
filed a Civil Suit in O.S.No.290 of 2018 on the file of the IV Additional District
Judge, Ponneri, seeking for a declaratory relief for a judgment and decree to
declare the respective sale effected in 1920 and 1964 as null and void and
consequently to declare the title over the property of the plaintiff ie., the fifth
respondent. Therefore, by citing this development, the learned Senior
Counsel would submit that, if at all the fifth respondent has gone to the Civil
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Court belatedly only in the year 2018, the said suit itself cannot be
maintained because of the limitation, as admittedly the minor Krishnaswamy,
who is the grandfather of the fifth respondent has become major in 1916
and therefore the limitation was over long back and therefore, at this
juncture the fifth respondent cannot step into the shoes of his grandfather
and file this suit to seek perfection of the title over the property at this length
of time. Therefore, in order to reject the plaint, the petitioner herein, who is
the defendant in the suit, filed a revision petition before this Court to strike
off the plaint in C.R.P.No.2044 of 2019, which is also pending, where there
has been an interim order of stay granted and it is operating now.
9. Therefore, the learned Senior Counsel would contend that, the
impugned order passed by the first respondent ought not to have been
passed by tracing the title from 1920 or before that and by giving the finding
that, the minor Krishnaswamy, grandfather of the fifth respondent became
major in the year 1916 and therefore the Sale Deed of the year 1920 ought
not to have been executed as Executor and by giving such reasons since
the first respondent has come to the conclusion that, the patta stood in the
name of minor Krishnaswamy ie., the grandfather of the fifth respondent
shall be restored now, is an extreme order passed by the first respondent by
transgressing the jurisdiction vested in him under the provisions of the Patta
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Passbook Act and also against the settled legal position in this regard that,
the Revenue Authorities cannot decide the title over the property and if there
has been any dispute over the title of the property between the parties, they
should only be relegated to the Civil Court to establish their right and to get a
declaratory decree.
10. By making these submissions, the learned Senior Counsel seeks
the indulgence of this Court to set aside the impugned order dated
24.04.2017 by restoring the patta position, which stood prior to 24.04.2017
in respect of the subject land.
11. Per contra, Mr.K.V.Sundararajan, learned counsel appearing for
the fifth respondent made submissions almost in the similar lines in respect
of the genealogical tree is concerned, where he submitted that, since
S.S.Krishnaswamy Iyer @ Krishnaswamy was only made the Executor of the
Will by the Prabala Seshachalayya in the year 1903 and all the properties
must have devolved to his son Minor Krishnaswamy, who is none other than
the grandfather of the fifth respondent, in the year 1920, knowing fully well
that the Minor Krishnaswamy has become major in the year 1916 itself,
ought not to have executed any sale in favour of any third parties, as the one
now has been done by the sale deed dated 31.03.1920 to and in favour of
the predecessor-in-title as claimed by the petitioner.
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12. Learned counsel for the fifth respondent would also submit that, if
the 1920 Sale Deed itself is void, equally the subsequent Sale Deed in the
year 1964 to and in favour of the petitioner's father also can only be treated
as void document and based on these two sale deeds, the petitioner cannot
trace the title over the property in dispute and therefore, the patta issued in
the name of the grandfather of the fifth respondent ie., Minor Krishnaswamy
with Guardian S.S.Krishnaswamy Iyer should be restored. This alone has
been done by the first respondent in the impugned order dated 24.04.2017.
13. The learned counsel for the fifth respondent would also submit
that, yet another reason has been stated by the first respondent in the
impugned order that, as per the Estates Abolition Act, the entire properties
which are in dispute along with other properties in the village concerned has
been taken over and Ryotwari Pattas were issued. When that being so, as
per the Ryotwari Patta issued in respect of the disputed lands, the pattadars
can claim title over the property and in this regard, neither the 1920 Sale
Deed nor the 1964 Sale Deed will prevail over the Ryotwari Patta issued in
favour of the petitioner's father and that factor has also been taken note of
by the first respondent while passing the impugned order. Therefore, in
addition to the 1920 and 1964 defective Sale Deeds or void Sale Deeds, the
other reason of Ryotwari Patta also fortified the reasons and the conclusion
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arrived at by the first respondent in the impugned order. Therefore, the
learned counsel for the fifth respondent seeks to sustain the impugned order.
14. I have also heard Mr.Rajkumar, learned counsel appearing for the
fourth respondent / Revenue Divisional Officer who had passed the
impugned order and has been arrayed as fourth respondent in his personal
capacity. Learned counsel would submit that, when an application was filed
by the fifth respondent making complaint that the property in question
belongs to the fifth respondent and how he inherited the property from his
forefathers also had been given and based on which an application was given
to cancel the patta stood in the name of the petitioner and another, based on
the 1920 and 1964 Sale Deed and also he had made a request to have an
enquiry on the issue as to whether the patta issued in the name of the
petitioner other than the fifth respondent or his family members is justifiable
or not, it has become the duty of the fourth respondent, who worked as Sub
Collector / Revenue Divisional Officer to look into the matter and accordingly,
he enquired the matter and passed the impugned order dated 24.04.2017.
15. The order passed by the fourth respondent, in his capacity as Sub
Collector, as he then was in 2017, is purely an official function he discharged
as per the provisions of the Patta Passbook Act and the Revenue Standing
Orders and therefore, whatever action taken in good faith by exercising his
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official position cannot be treated as any biased action. Therefore, in this
regard no guilt can be attributed against the fourth respondent and whatever
allegations made are untenable and unjustifiable and on that basis,
unnecessarily the fourth respondent has been dragged into this writ petition
proceedings and has been made a party. Therefore, the learned counsel
would submit that, the fourth respondent's name can be struck off from the
array of parties in this writ petition and whatever allegations made against
the fourth respondent in the affidavit filed in support of this writ petition can
be eschewed and suitable orders to that effect can be passed, he contended.
16. Heard Mr.Richardson Wilson, learned Government Counsel
appearing for the official respondents ie., first to third respondents. He
would submit that, the impugned order passed by the first respondent can
be traced with the power and the jurisdiction exercised under the provisions
of the Patta Passbook Act.
17. Even though law has been well settled in this regard by various
pronouncements of this Court as well as the Honourable Apex Court that,
insofar as the dispute with regard to the title of the property concerned,
where rival claims have been made with regard to the title of the property
before Revenue Authorities, normally Revenue Authorities would relegate the
parties to the Civil Court to get a declaratory relief, however, if the Revenue
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Authorities feel that either of the party is perfected with the title and there
has been no difficulty in accepting the title projected by either of the party,
based on such title which has already been established and produced before
the Revenue Authorities, certainly the Revenue Authorities can exercise the
power to issue a patta or cancel the patta already issued in the name of any
third party and in this regard, such limited power exercisable by the Revenue
Authorities is ensured under the provisions of the Patta Passbook Act.
Therefore, only in that line and only within that limitation, the first
respondent has exercised the power and passed the impugned order dated
24.04.2017.
18. Learned Government Counsel would further submit that, if at all
this Court finds that the first respondent has given any findings, which tend
to make a finding with regard to the title of the property concerned either in
favour of the petitioner or the fifth respondent, that can only be treated as a
necessary finding for giving his reasons to reach the conclusion that he has
arrived at in the impugned order and beyond which it cannot be construed
that, he finds any new point for declaring the title of the property either in
favour of the fifth respondent or otherwise. Therefore, the learned
Government Counsel also would make an attempt to sustain the order dated
24.04.2017 passed by the first respondent.
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19. I have considered the rival submissions made by the learned
counsel for the parties and have gone through the materials placed on
record.
20. First of all, before the first respondent, when he was hearing the
application submitted by the fifth respondent for cancelling the patta stood in
the name of the petitioner and to issue patta in the name of the grandfather
of the fifth respondent, whether there has been any title issue between the
parties or not should be examined first and after examining the same only,
the first respondent should proceed to decide the issue in accordance with
the provisions established under the Patta Passbook Act as well as the Rules
made thereunder.
21. Here in the case in hand, the petitioner traced title by placing
reliance on two Sale Deeds ie., 1920 and 1964, whereas the fifth respondent
traced title by way of inheritance of the property from his grandfather one
Minor Krishnaswamy Iyer during the minorship or after he became major,
where third party right had been created by the Executor of the Will of the
original owner of the property Prabala Seshachalayya. Those documents, if
at all goes against the recital made in the Will, should be challenged in the
manner known to law. Here in the case in hand, two documents viz., 1920
and 1964 Sale Deeds are mainly projected on behalf of the petitioner to
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claim title and possession over the property in question. It is a fact that,
both the Sale Deeds have not been questioned by the fifth respondent till the
impugned order was passed.
22. However, the very same fifth respondent, after the impugned
order was passed and this writ petition was filed in the year 2017, has
subsequently gone to the Civil Court by filing the aforesaid suit in O.S.No.290
of 2018 on the file of the IV Additional District Judge, Ponneri seeking
various reliefs as set out herein above. Therefore, the fact remains that, the
fifth respondent thought of perfecting his title by getting a declaratory
decree. Therefore, he has rightly approached the Civil Court and filed a Civil
Suit as set out above. As on today, the Civil Suit is pending, as against
which, to strike off the plaint, though the petitioner filed a civil revision
petition in C.R.P.No.2044 of 2019 before this Court, where he was able to
get an interim order and the same is still pending, ultimately it is to be
decided whether the Sale Deeds of 1920 and 1964 are valid Sale Deeds or
not. Unless and until the validity of the sale deeds is discussed and decided
by a competent Civil Court, based on the said Sale Deeds, no conclusion can
be arrived at by the Revenue Authorities by exercising their power under the
Patta Passbook Act. If at all the Sale Deeds of 1920 and 1964 are declared
to be valid in the suit filed by the fifth respondent, then the whole findings
given by the Revenue Authorities ie., the first respondent in the impugned
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order, would become inoperative and otiose. Instead, if the fifth respondent
succeeds in the suit and get a declaratory decree that, the Sale Deeds of
1920 and 1964 are void and the consequential actions taken place are also
equally void, then the findings given by the first respondent in the impugned
order may sustain.
23. However, hypothetically we cannot presume at this moment that,
the findings and conclusion reached by the first respondent would be
sustainable or not.
24. However, as on date, the 1920 Sale Deed and 1964 Sale Deed, in
the eye of law, have not been declared void and therefore, the law will
presume that, those documents are valid. When that being so, at that
juncture, ie., on 24.04.2017 and even today if a question is raised as to
whether the findings given by the first respondent in the impugned order will
sustain or not, the answer would be in the negative that, it would not
sustain.
25. It is further to be noted that, as has been pointed out by the
learned counsel for the parties, that the power of the Revenue Authorities in
deciding the issue for grant of patta or cancellation of patta is only a limited
area. While deciding those issues, the Revenue Authorities very often are
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seen transgressing their jurisdiction and make comments which tend to
decide the title over the property. The Courts have often given diktat saying
that, they cannot violate the jurisdiction towards deciding the title. One such
decision is reported in 2011 (5) CTC 1994 “Vishwas Footwear
Company Ltd., -Vs- The District Collector, Kancheepuram and
Others” , where the Division Bench of this Court, having considered a
similar issue, has given the following directions.
“18. As far as the power of this Court to entertain a writ petition on
disputed questions, we may refer to the following decisions of the
Supreme Court in Arya Vysya Sabha and others v. The
Commissioner of Hindu Charitable and Religious Institutions &
Endowments , Hyderabad and others, (1976) 1 SCC 292, Rourkela
Shramik Sangh v. Steel Authority of India Ltd., and another, (2003)
4 SCC 317 and Himmat Singh v. State of Haryana and others,
(2006) 9 SCC 256. Therefore, when disputed questions are
involved, this Court will not entertain the writ petition and
adjudicate upon such dispute, as it is for the parties to approach
the civil Court to decide the issue. However, in the event the order
challenged in the writ petition is questioned on the ground of want
of jurisdiction, certainly this Court would entertain the writ petition
and particularly when such an order was passed when effective
remedy is available before a civil Court for a person or persons
who seek for cancellation of patta. As already pointed out, though
the fourth respondent has filed appeal to the Revenue Divisional
Officer seeking for cancellation of patta, in view of the fact that the
Revenue Divisional Officer cannot go into the civil dispute, his
order cancelling the patta by deciding the disputed question of title
is without jurisdiction. In this context, we may refer to the proviso
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to section 14 of the Act which bars the suit. The proviso reads that
if any person is aggrieved as to any right of which he is in
possession by an entry made in the patta pass book under this Act,
he may institute a suit against any person denying or interested to
deny his title to such right of declaration of his right under Chapter
VI of the Specific Relief Act and the entry in the patta pass book
shall be amended in accordance with any such declaration. By that
proviso, in the event any grievance is made by the fourth
respondent over the patta granted to the appellant, he should have
approached the civil Court for necessary orders. In the event the
Revenue Divisional Officer had no jurisdiction to go into the
disputed question of title and in spite of that fact if he decides the
same, on the very same yardstick, the further remedy is only a
revision under section 13 of the Act which is limited to calling for
and examining the records of either the Tahsildar or the appellate
authority by the District Revenue Officer and such revisional power
cannot be equated to appellate power. Hence, the contention of the
fourth respondent that the appellant has got an effective remedy of
appeal and without availing such remedy cannot file the writ
petition, has no merit. Accordingly, the said contention is rejected.
19. Nevertheless, the core question involved in the writ petition is
as to whether in the given facts and circumstances of the case, it
could be entertained in the event patta has been granted in favour
of a particular individual. On the strength of the title or possession,
if any other person makes an application to the Revenue Divisional
Officer for cancellation of that patta and in the event both the
individuals claim title over the property, the Revenue Divisional
Officer cannot adjudicate such disputed questions and accepting
the case of the other person, he cannot cancel the patta. The right
course to be adopted by the Revenue Divisional Officer in such case
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is only to refer the applicant who has come before him seeking for
cancellation of patta to civil Court, especially when his claim is
disputed by the individual who is holding the patta granted by the
competent authority. In the event the Revenue Divisional Officer by
exceeding his jurisdiction decides the question of title and cancels
the patta, certainly the aggrieved person can approach this Court
by way of a writ petition on the ground that the Revenue Divisional
Officer was not competent to go into the title. The question of
alternative remedy is not available to the aggrieved person as for
the very same reason the District Collector also cannot go into the
disputed question regarding the title or possession, as the case may
be, in the event an appeal is filed.
20. It is the specific case of the appellant herein that the property
was initially registered in the name of one Ramanathan and others,
who were granted Patta No.243 in the year 1963. Thereafter, the
property was conveyed to one Palani and he was issued with the
Patta No.707. The said Palani conveyed 80 cents of land in Survey
No.93/3 to one Shoba Ramalingam in the year 1981, who was
issued with the Patta No.459. The appellant company acquired 51
cents of land in Survey No.93/3 from the said Shoba Ramalingam
by a registered sale deed in the year 1992 and was issued with the
Patta No.1515. As far as the other land in Survey No.93/4A is
concerned, the land was originally owned by Shoba Ramalingam
having purchased from one Annamalai Chettiar in the year 1981 by
a registered sale deed and she has been issued with the Patta
No.459. The appellant company acquired 57 cents from the said
Shoba Ramalingam by a registered sale deed of the year 1992 and
has been issued with the Patta No.1515. It is the specific case of the
appellant that a portion of the land to an extent of 0.163 square
metres in Survey No.93/4 was acquired by the Highways
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Department and they were paid compensation. It is their further
case that right from the date of purchase, they are in possession of
the land. On the other hand, it is the case of the fourth respondent,
E.Kumar that he submitted a petition dated 21.2.2005 requesting
the grant of patta in Survey No.93/3 to an extent of 1.32 acres in
favour of Alamelu Ammal from whom he has got power of attorney
for the said property. He claimed that the said Alamelu Ammal was
the owner of the property. The Revenue Divisional Officer, having
gone into the rival claims, ultimately decided that the land belongs
to Alamelu Ammal and on that ground the power of attorney holder
was entitled to seek for cancellation of patta given in favour of the
appellant company and consequently, directed the registration of
patta in favour of the said Alamelu Ammal. In the impugned
proceedings dated 16.7.2005, for the purpose of cancelling the
patta granted in favour of the appellant, the Revenue Divisional
Officer, having gone into the rival contentions, found that Thiru
Palani Achari, S/o Kanniappa Achari had mistakenly sold the land
to Tmt.Shoba Ramalingam registered in Document No.743 of 1981.
By this finding, he has gone into the genuineness of the sale effected
in the year 1981 in the proceedings under section 12 of the Act after
a lapse of nearly 24 years. In our opinion, the dispute being one of
civil nature, the title of either the appellant company or the said
Alamelu Ammal cannot be gone into by the Revenue Divisional
Officer. The Revenue Divisional Officer having gone into such title
has not only decided to cancel the patta in favour of the appellant
company, but also directed the registration of patta in favour of
Alamelu Ammal. Both the above acts are without jurisdiction. In the
event the act of the Revenue Divisional Officer is without
jurisdiction, the writ petition is maintainable. Accordingly, the
contention of Mr.P.Wilson that the writ petition itself is not
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maintainable cannot be accepted.
21. In the light of the judgments in Kuppuswami Nainars case and
Chockkappans case, the person who has applied to the Revenue
Divisional Officer for cancellation of patta should be directed to
approach the civil Court to establish the title and for seeking the
grant of patta after cancelling the patta granted in favour of the
appellant company. On this ground, the appellant is entitled to
succeed. Accordingly, the order of the learned single Judge is set
aside. The order impugned in the writ petition is set aside and the
patta granted in favour of the appellant company is restored.
However, we make it clear that this order shall not stand in the way
of the said Alamelu Ammal to approach the civil Court to establish
the title and to consequently seek for cancellation of patta granted
in favour of the appellant company and for further direction for
grant of patta in favour of the said Alamelu Ammal. With these
observations and directions, the writ appeal is allowed. No costs.”
26. Yet another decision of another Division Bench reported in 2011
(5) CTC 241 also has been cited, where the Honourable Division Bench has
stated as follows.
“ 28.In view of the foregoing narrations, it is clear that there
is a dispute regarding the title of the Fourth Respondent/Writ
Petitioner as well as the Deceased Appellant/Fourth Respondent
pertaining to 7.18 acres of land in S.F.Nos.547 and 548, Kalapatti
Village, Coimbatore District. The District Revenue Officer / First
Respondent, relying upon the reports of the Second Respondent /
Revenue Divisional Officer and Third Respondent / Tahsildar, who
are his Officers, ordered deletion of the Fourth Respondent/Writ
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Petitioner's name from the UDR Records and to include the name
of the Deceased Appellant / Fourth Respondent's predecessors in
title viz., R.Karuppa Gounder and N.Karuppa Gounder.
29.As per Section 4 of the Tamil Nadu Patta Pass-Book Act,
1986 (4 of (1986), the entries in the Patta Pass-book and the
certified copies of entries in the Patta Pass-book shall be presumed
to be true and correct, until the contrary is proved or a new entry is
lawfully substituted therefor. As a matter of fact, Section 6 of the
Act envisages that the entries in the Patta Pass-book issued by the
Tahsildar as per Section 3 shall be prima facie evidence of title of
the person, in whose name the Patta Pass-book has been issued to
the parcels of land entered in the Patta Pass-book, free of any prior
encumbrance, unless otherwise specified therein. However, the
Patta Pass-book being a prima facie evidence is a rebuttable
presumption in law, as opined by this Court.
30.From a reading of Rule 4(4) of the Tamil Nadu Patta
Pass Book Rules, it is clear that if the Tahsildar is satisfied that a
dispute concerning ownership of patta is already pending in a
Court or issues are raised before him which impinge on personal
laws or laws of succession and all the parties interested do not
agree on the ownership in writing, he shall direct the concerned
parties to obtain a ruling on ownership from a competent Civil
Court having jurisdiction before changing the entries already
recorded and existing in the various Revenue Records. The
Learned Single Judge, in paragraph No.19 of the order, had
specifically held that in terms of Sub-Rule (4) of Rule 4, the First
Respondent / District Revenue Officer ought to have directed the
parties to go before the competent Civil Forum for adjudication of
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dispute with regard to the ownership, as the Fourth
Respondent/Writ Petitioner and the Deceased Appellant / Fourth
Respondent disputes the version projected by each one of them.
31.......
32.......
33.....
34.......
35.Admittedly, in the instant case on hand, there is a serious
dispute with regard to the title of lands measuring an extent of 7.18
acres in S.F.Nos.547 and 548, Kalapatti Village, Coimbatore
District . In cases of this nature, it is not open to the Revenue
Authorities, much less the First Respondent / District Revenue
Officer, to decide the same. In Civil Law, when there is a dispute
between the rival parties touching upon the title to the property,
the competent forum would be only the Civil Court. In the instant
case, the First Respondent / District Revenue Officer had not
followed such a procedure. However, he had chosen to decide the
title in respect of the said property mainly relying upon the reports
submitted by the Second Respondent / Revenue Divisional Officer
and the Third Respondent / Tahsildar.
36.On a careful consideration of the factual position
presented in the instant case and in the light of the qualitative and
quantitative discussions mentioned supra, we have no hesitation to
hold that the dispute between the parties relates to title of the
lands measuring an extent of 7.18 acres in S.F.Nos.547 and 548,
Kalapatti Village, Coimbatore District and the proper forum for
the parties to agitate and ventilate their grievances in respect of
their title to the said property is only before the competent Civil
Forum. As such, we come to an inevitable conclusion that the
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Learned Single Judge had rightly held that it is open to the Fourth
Respondent/Writ Petitioner and the Deceased Appellant/Fourth
Respondent to work out their remedies before the competent Civil
Forum in accordance with law. We are also of the considered view
that the dispute between the Fourth Respondent/Writ Petitioner and
the Deceased Appellant/Fourth Respondent is one of both mixed
question of fact and law, which needs to be gone into in detail by
means of adducing oral and documentary evidence by examining
witnesses as the case may be and the only course open to the
parties is to approach the competent Civil Court.
37.In the result, the Writ Appeal is dismissed, leaving the
parties to bear their own costs. Consequently, the order passed by
the Learned Single Judge is confirmed for the reasons assigned in
this Writ Appeal. Connected miscellaneous petition is closed. ”
27. Similar views have been expressed in “T.R.Dinakaran -Vs- The
Revenue Divisional Officer and Others” reported in 2012 (3) CTC 823
and also in “A.Asirul Fasil -Vs- District Revenue Officer and others”
reported in 2014(2) CWC 878.
28. All these judgments were cited on behalf of the petitioner and the
legal proposition as held in those decisions are not in much dispute as it is a
settled legal proposition.
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29. Now the question before this Court is that, in view of the Civil Suit
filed by the fifth respondent and pending before the Civil Court concerned
seeking declaratory relief against the petitioner in respect of the documents
ie., 1920 and 1964 Sale Deeds and other connected or subsequent
documents, whether the findings now given by the first respondent in the
impugned order will sustain in the eye of law or not.
30. As has been discussed above, the present findings and the
reasoning given by the first respondent to reach the conclusion to cancel the
patta stood in the name of the petitioner's father or the petitioner and to
restore the patta in the name of Minor Krishnaswamy, who was the
grandfather of the fifth respondent, in the considered opinion of this Court,
ought not to have been made by the first respondent. Instead, the first
respondent ought to have relegated the parties to approach the Civil Court to
get declaratory relief and to establish their title over the property.
31. Even though such a direction was not given by the first
respondent in the impugned order, subsequently, realising the difficulty, the
fifth respondent has gone to the Civil Court and filed a Civil Suit.
32. It is also to be noted that, as against the said Civil Suit filed by the
fifth respondent, the petitioner, on the ground of delay and other grounds,
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wanted to strike off the plaint and therefore, invoking the supervisory power
under Article 226 of the Constitution of India, the petitioner filed a revision
petition in C.R.P.No.2044 of 2019, where an interim order of stay of
conducting the suit seems to have been granted.
33. However, in view of the aforesaid factual matrix, there is a dispute
with regard to the title over the property, as both the petitioner as well as
the fifth respondent claims title over the property in question by two different
sources, one is by law of inheritance and another by way of Sale Deed,
through which the petitioner claims that, he purchased the property through
a valid instrument. When that being so and in view of the fifth respondent
having gone to the Civil Court and filed a suit, the present findings given in
the impugned order and the conclusion reached by the first respondent may
not hold good and therefore, those findings and the conclusion arrived at by
the first respondent in the impugned order is liable to be interfered with.
34. However, at the same time, if the impugned order is interfered
and quashed and the matter is remitted back to the first respondent, the first
respondent will be in the same precarious position to decide the issue raised
by the parties with regard to the patta, as the Civil Court is yet to decide the
issue. Therefore, till the Civil Court decides the issue, the plea raised by the
fifth respondent on the issue of patta need not be decided by the Revenue
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Authorities and in that case, what was the position prevailing prior to
24.04.2017 ie., the date of the impugned order can very well be restored and
be maintained.
35. In that view of the matter and the discussions herein above made,
this Court is inclined to dispose of this Writ Petition with the following orders.
● That the impugned order dated 24.04.2017 is quashed.
● As a sequel, insofar as the patta to the property in question
stood as on 23.04.2017 shall be restored with a condition
that, by restoring the position dated 23.04.2017, the
petitioner shall not try to encumber the property in question
subject to the following further directions.
● The fifth respondent shall pursue the suit in O.S.No.290 of
2018 on the file of the IV Additional District Judge, Ponneri
and in this regard, in view of the aforesaid discussion, this
Court feels that, the Civil Court shall give priority to the said
Suit and decide the same on merits as early as possible
preferably within a period of six months from the date of
receipt of a copy of this order.
● In view of the aforesaid directions, this Court expects the
petitioner to inform this development before the concerned
Court, where C.R.P.No.2044 of 2019 is pending and
accordingly get a disposal of the same, which includes
withdrawal of the said C.R.P.
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● In view of the aforesaid directions, where there is likelihood
of withdrawal or disposal of C.R.P.No.2044 of 2019 filed by
the petitioner, there shall be some protective orders for both
the petitioner as well as the fifth respondent.
● There shall be a further direction to the IV Additional District
Judge, Ponneri to take up and decide I.A.No.251 of 2018 in
O.S.No.290 of 2018 within two months and for such
endeavour, both the parties shall give their cooperation
without taking any unnecessary adjournments. For the said
two months ie., till the disposal of I.A.No.251 of 2018, the
petitioner is precluded from making any encumbrance of the
property in question or creating any third party rights.
● The six months outer limit provided by this Court 1st above
direction to complete the suit shall be subject to the
endeavour to be made by the petitioner to file any
interlocutory application invoking Order VII Rule 11 of
C.P.C.,to strike off the plaint and if any such move is made
by the petitioner, that interlocutory application also shall be
taken up and decided first by the trial Court and subject to
the decision to be made in such interlocutory application to
be filed under Order VII Rule 11 of C.P.C., the six months
outer limit indicated above shall work out.
● In view of the aforesaid findings, this Court feels that, the
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array of parties made in respect of the fourth respondent in
his personal capacity may not be required. Therefore, the
fourth respondent is struck off from the array of parties in
this writ petition and whatever the allegations made against
him by the petitioner in this writ petition is hereby eschewed.
● Since the status quo ante with regard to the mutation in the
revenue records as it stood on 23.04.2017 is ordered herein
above, such mutation as on 23.04.2017 shall be made by the
revenue authorities concerned especially the second
respondent Tahsildar within a period of two weeks from the
date of receipt of a copy of this order.
35. With the above directions, this writ petition is disposed of. No
costs. Consequently, connected miscellaneous petitions are closed.
14.07.2021
Index : Yes
Internet : Yes
KST
To
1.The Revenue Divisional Officer
Office of the Revenue Divisional Officer
Ponneri Taluk, Tiruvallur District.
2.The Tahsildar
Ponneri Taluk, Tiruvallur District.
3.The District Revenue Officer
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WP No.12694 of 2017
Office of the District Revenue Officer
Tiruvallur District.
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WP No.12694 of 2017
R. SURESH KUMAR, J.
kst
W.P.No.12694 of 2017
14.07.2021
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