Madras High Court
Naseem Sharief vs The Revenue Divisional Officer on 30 September, 2021
W.P.No. 9533 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.09.2021
CORAM
THE HONOURABLE MRS. JUSTICE V. BHAVANI SUBBAROYAN
W.P.No. 9533 of 2019
and
W.M.P.No.10150 of 2019
Naseem Sharief .. Petitioner
Versus
1. The Revenue Divisional Officer
Chengalpet, Kancheepuram District.
2. The Tahsildar
Taluk Office, Thiruporur,
Kancheepuram District.
3. V.Perumal
4. M/s. Isha Homes (India) Pvt. Ltd.,
Represented by its Authorized
Signatory Mr.N.Anbu Mani
Old No.55, New No.74,
1st Avenue, Indira Nagar,
Adyar, Chennai - 600 020 .. Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India praying to issue a Writ of Certiorarified Mandamus, calling for the
records pertaining to the impugned order dated 05.03.2019 in
1/25
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Pa/Mu/105/2019/AA3 passed by the 1st respondent, quash the same and
for consequential direction to the respondents 1&2 to restore the patta in
the name of the petitioner herein with respect to Survey No.65/8A located
in Pudupakkam Village, now Thirupporur Taluk, Kancheepuram District,
admeasuring 16 cents.
For Petitioner : Mr.Sashidhar Sivakumar
For RR 1 and 2 : Mr.V.Veluchamay
Government Advocate
----
ORDER
This Writ Petition has been filed in the nature of Certiorarified
Mandamus to call for the records pertaining to the order of the 1 st
respondent, the Revenue Divisional Officer, Kancheepuram District, the
impugned order in Pa/Mu/105/2019/AA3, dated 05.03.2019 and quash the
same and for consequential direction to the respondents 1 and 2 to restore
the patta in the name of the petitioner herein with respect to Survey
No.65/8A located in Pudupakkam Village, now Thirupporur Taluk,
Kancheepuram District, admeasuring 16 cents.
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2.The petitioner claims that the property measuring an extent of 16
cents of punjai lands in S.No.65/8A, Pudupakkam Village, Thiruporur
Taluk, Kancheepuram District was originally owned by the grandfather of
the 3rd respondent, K.Mari. After the survey and settlement of land by the
Government in 1961, a joint patta bearing No.94 was issued in the name of
the grandfather of the 3rd respondent, namely, K.Mari and another person
Ayyavoo as per the settlement register. It had been stated that after the
death of Ayyavoo his legal representatives along with K.Mari, and his son
Vendavarasi and the petitioner who was a minor had sold the lands
measuring about 12 cents by Sale Deed dated 27.07.1971 and registered
as Document No.849 of 1971 in the office of the Sub-Registrar,
Thiruporur.
3.It had been stated that by proceedings dated 25.01.1973 in
No.84/2025/1382, the survey numbers were sub divided by the authorities
who issued Patta No.94 to the lands on northern side for the extent of 16
cents in S.No.65/8A in the name of K.Mari. The lands in the southern side
which was sold measuring 12 cents was subdivided as S.No.65/8B. The
petitioner claims that an error occurred in the patta with respect to the
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lands in S.No.65/8A measuring 16 cents. It had been claimed that she
made a representation and the corrections was made. She however stated
that the lands in S.No.65/8A was brought into the fold of the 4th
respondent and was taken up for joint development by the 4th respondent
along with M/s.Isha Homes (India) Private Limited. The said land was
shown in the Planning Permission obtained during joint development as
Open Space Reservation and gifted to the authorities towards laying of
road and park. The remainder portion of the land along with the larger
extent had been developed and Deeds of Conveyance has been executed to
various third parties.
4.The third respondent then filed W.P.No.7745 of 2019 seeking a
mandamus directing the Planning Authority to cancel the layout approval
No.18 of 2016 granted by Letter No.1220/2015 dated 28.07.2016 for joint
development of the property bearing S.Nos.64/10B, 64/12, 64/13 and 65/1,
65/2, 65/6, 65/8A, 65/8B, 65/9B in Pudupakkam Village, Tiruporur
Panchayat Union, Tiruporur Taluk, Kancheepuram District and also to
cancel the Gift Deed registered as Doc.No.4070/2016 registered at Sub-
Registrar Office, Tiruporur. In the counter the respondents and also the 4th
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W.P.No. 9533 of 2019
respondent herein had stated that an error had crept in while documents of
conveyance were obtained by the 4th respondent namely, Sale Deed dated
27.07.1971 registered as Doc.No.849/1971 in the office of the Sub-
Registrar Thiruporur. In all the documents the details of the property and
boundaries pertaining to S.No.65/8B had been given, but the survey
number was wrongly mentioned as S.No.65/8A. It had been contended
that the conveyances related to S.No.65/8B on the southern side. It had
been contended that the land in northern side bearing S.No.65/8A was
never sold. It was claimed that this was confirmed by the revenue
authorities and admitted by the 4th respondent and also the developers, Isha
Homes India Private Limited.
5.A learned Single Judge of this Court by order dated 19.08.2019 in
W.P.No.7745 of 2019 had stated that the right over the property can be
decided by competent Civil Court. It was stated that the 9th respondent
therein had excluded the portion from the layout. It was therefore stated
that inclusion of S.No.65/8A in the gift deed will therefore become non-est
in law.
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6.It is stated that the petitioner filed a review of the order and during
the course of arguments it has been informed that the review petition had
also been dismissed.
7.In the meanwhile, based on the representation given, the 2 nd
respondent, Revenue Divisional Officer therein had stated that the patta
with respect to S.No.65/8A measuring 0.16 cents should be corrected to
the name of K.Mari. Questioning this order of the 2nd respondent dated
05.03.2019, the 4th respondent herein filed an appeal before the 1st
respondent namely, District Revenue Officer therein, Kancheepuram
District. The 1st respondent by order dated 03.10.2019 in
No.10657/2019/En.4 stated that since W.P.No.9533 of 2019 was pending,
the parties should take recourse to Civil Court proceedings to settle the
disputes.
8.It had been stated by the petitioner that the 4 th respondent while
simultaneously filing an appeal before the 1st respondent against the order
of the 2nd respondent dated 05.03.2019, had also filed W.P.No.9533 of
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2019 for the same relief, namely, to quash the order of the 2 nd respondent
dated 05.03.2019. Pendency of the said writ petition was quoted by the 1 st
respondent in the order now impugned, who stated that owing to such
pendency, the parties must be relegated to the Civil Court. It is under these
circumstances, questioning that order of the 1st respondent that the present
writ petition had been filed.
9.The issues surrounded a dispute between the 1st and 4th
respondents. The 2nd and 3rd respondents has been pushed to be mere
bystanders.
10.The 4th respondent filed a counter and claimed that she was the
absolute owner of the total extent of 8.61 acres of land in S.Nos.64/10B,
64/12, 64/13, 65/1, 65/2, 65/6, 65/8A, 65/8B & 65/9B in Pudupakkam
Village, Tiruporur Taluk, Kancheepuram District. She claimed that she
became the owner of the land in S.No.65/8A and 65/8B measuring 29
cents pursuant to a settlement deed executed in her favour on 08.03.2007
registered as Doc.No.2445 of 2007 in the office of the Sub-Registrar,
Tiruporur, which settlement deed was executed by her husband. With
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specific reference to S.No.65/8A, she claimed that after various
transactions finally, 11 cents out of 16 cents had been conveyed to Zubaida
Begum by T.Balaraman and others who were the sons of Tiruvengada
Mudaliar who had purchased 12 cents from K.Mari and others by
Doc.No.531 of 1987 dated 26.03.1987 and balance 5 cents from
Velayutham by Doc.No.2670 of 1987 dated 17.11.1987.
11.The 4th respondent further claimed that she also purchased 13
cents in S.No.65/8B. Therefore, it had been claimed that by the subsequent
settlment deed, she had become the absolute owner of the entire 29 cents
in both S.Nos.65/8A and 65/8B. Thus the 4th respondent has claimed title
to the property. She also stated that the last paid Kist by K.Mari, the
grandfather of the petitioner was for the fasli year 1382 namely for 1971
and therefore claimed that he was never in possession after executing the
sale deed in the year 1971 to Tiruvengada Mudaliar.
12.The 4th respondent also claimed that while incorporating the
subdivisions in the FMB extracts the southern portion had been wrongly
shown as S.No.65/8B instead of S.No.65/8A. She also questioned the
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bonafide of the petitioner, who had approached the Court after four
decades, and taking advantage of that error, had raised a dispute that 16
cents of land in S.No.65/8A still belongs to him. In fact she claimed that he
was actually questioning title of the 4th respondent. It had been stated that
the said title can be tested only by instituting a suit in a Civil Court of
competent jurisdiction. It was therefore stated that the writ petition
should be dismissed.
13.Heard arguments advanced by Ms.G.Thilakavathi, learned Senior
counsel for the petitioner and Mr.K.M.D.Muhilan, learned Government
Advocate for the 1st, 2nd and 3rd respondents and Mr.K.S.Karthick Raja,
learned counsel for the 4th respondent.
14.It is the contention of Ms.G.Thilagavathi, learned Senior Counsel
for the petitioner that originally, the grandfather of the petitioner K.Mari
owned 29 cents in S.No.65/8 in Pudupakkam Village, Tiruporur Taluk.
Joint patta was granted to the said K.Mari and another individual
Ayyavoo, after the survey and settlement of the lands by the Government
in 1961. In the year 1971, K.Mari and his sons Vendavarasi and his grand
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son the petitioner who was a minor and Ponnan, Velayudham both sons
of Mamoothi and Kuppan son of Velayutham sold 12 cents out of 29 cents
by Doc.No.849/1971 dated 27.07.1971 to Tiruvengada Mudaliar. The
learned Senior Counsel stated that the remaining 17 cents was retained by
K.Mari and his family members.
15.It is the contention of the learned Senior Counsel that the portion
which had been sold was in the southern side and the survey number was
subdivided and allotted S.No.65/8B. She contended that the balance 16
cents was retained by K.Mari and that portiion was on the northern side
and the survey number was subdivided and allotted 65/8A. It is her
contention that the 4th respondent, when they purchased the properties had
wrongfully included S.No.65/8A in their documents. They had later
entered into a joint development with Isha Homes India Private Limited
and in that agreement had shown the lands in S.No.65/8A as Open Space
Reservation and had gifted the same towards laying of road and park. It
had been claimed that a mistake had occurred in the FMB register and that
S.No.65/8A had to be interchanged with S.No.65/8B.
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16.The learned Senior Counsel pointed out that this had been found
out as a fact by the 2nd respondent in his order dated 05.03.2019 and he
had directed correction of the said survey numbers. In the appeal, the 1st
respondent namely District Revenue Officer had affirmed such a finding,
but had directed the parties to go to the civil court to settle their disputes.
The learned Senior Counsel assailed that portion of the order and stated
that the 1st respondent had every authority to uphold the order of the 2 nd
respondent and need not have directed the parties to approach the civil
court and could have directed corrections of the entries in the FMB
register.
17.The learned Senior Counsel further stated that this Court may,
therefore direct the 1st respondent to issue such directions to correct the
survey numbers in the FMB register without relegating the parties to the
civil court or on the other hand remit the matter back to the 1st respondent
and stated that the petitioner and the 4th respondent may again argue the
matter before the 1st respondent and impress upon the said official that
correction in the FMB register can be undertaken without relegating the
parties to the civil court.
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18.The learned Senior Counsel in this connection relied on a
judgment of a learned Single Judge of this Court in J.Jayaniithaa Vs.
Inspector General of Registration and others reported in 2021 1 CTC
839, wherein the learned Single Judge of this Court had observed that
when fraud is found in the entries of the revenue registers, then relegating
the parties to the civil court would make it impossible to the real owners of
the property to deal with his own property and had therefore directed that
the said order itself may be registered and there need not be a direction to
approach the civil court.
19.This order had been again followed by the very same learned
Single Judge in W.P.(MD).No.10177 of 2021, S.R.M.Packiri Rajan V.
The Inspector General of Registration and others, by order dated
17.06.2021. It is therefore, the contention of the learned Senior Counsel
that this Court should interfere with that particular portion of the order of
the 1st respondent by which he had directed the parties to go to the civil
court to settle the issues between them.
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20.Mr.KMD.Muhilan, learned Government Advocate, for the 1st, 2nd
and 3rd respondents pointed out that whenever there is a dispute on title, it
would be advisable that the parties settle the issues of title before the civil
court since only a civil court can record evidence and decide on the title.
The corrections in the FMB register can never grant title. The revenue
records will necessarily have to follow title. To determine title, the civil
court will have to be approached and merely changing the corrections in
the FMB register would not be of any help to any of the parties.
21.Mr.K.S.Karthik Raja, learned counsel for the 4 th respondent
stated that the 4th respondent is the absolute owner as on date of the entire
29 cents in S.Nos.65/8A and also in S.No.65/8B having purchased the
same by registered sale deeds. The learned counsel stated that in the FMB
register an error had occurred and that was not owing to any act of the 4 th
respondent. The learned counsel stated that when there is a dispute with
respect to title, then it would only be advisable to refer the parties to the
civil court. In fact this was also the view of the learned Single Judge, who
had adjudicated the writ petition between the very same parties in
W.P.No.7745 of 2019. The learned counsel also pointed out the review
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filed against the said order in Review Petition No.228 of 2019 had also
been dismissed. He therefore contended that the parties will necessarily
have to go to the Civil Court and the petitioner will have to file a suit for
declaration of title and the revenue authorities cannot decide issues on
title.
22.I have perused the records and have given my careful
consideration to the arguments advanced.
23.The grandfather of the petitioner K.Mari was the owner of 29
cents of land in S.No.65/8 in Pudupakkam Village, Tiruporur Taluk,
Chengalpet District. This land was divided into two halves namely,
northern and southern halves. The northern half measured 16 cents. The
southern half measured 12 cents. There is no indication in any of the
records as to what happened to the remaining 1 cent.
24.It is the case of the petitioner that the northern half of 16 cents
was allotted S.No.65/8A and was retained by K.Mari. This is the land
which the petitioner today claims that he is the owner, in view of the fact
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that he is the grandson of K.Mari. The southern portion had been sold. The
southern portion of 12 cents had been sold and the subdivision in survey
number was allotted as 65/8B.
25.The records however paint a different picture. The northern half
of 16 cents said to be retained by K.Mari, had also been sold. For the
entire 29 cents, the following are the relevant encumbrances which had
been entered into by the parties.
i).Document No.849/1971 dated 27.07.1971 for 12 cents out of 29
cents now S.No.65/8A (part).
ii).Unregistered Sale Deed dated 08.07.1975 for 4 cents of
S.No.65/8A.
iii).Document No.2270/1984 dated 28.11.1984 for 13 cents now
S.No.65/8B.
26.Passing at this moment, it is seen that though the petitioner
claims that his grandfather retained, 16 cents on the northern side and
S.No.65/8A had been allotted to the said lands, there has been execution of
a registered sale deed for 12 cents and an unregistered sale deed for the
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balance 4 cents.
27.There had been further transactions namely,
i).Document No.2271/1984 dated 28.11.1984 for 5 cents in
S.No.65/8A.
ii).Document No.531/1987 dated 26.03.1987 for 11 cents in
S.No.65/8A and 13 cents in S.No.65/8B.
28.These documents effectively indicate that by 1987, the entire 29
cents had been dealt by way of sale deeds.
29.Further transactions were entered into in 1987.
i)Document No.2670/1987 dated 17.11.1987 for 5 cents in
S.No.65/8A.
30.These documents further establish that the family members of
K.Mari have been freely conveying the lands and dividing them into
portions, conveying them to various persons. Thereby the entire lay of the
land had changed. To determine whether any portion of the lands were
retained by K.Mari as claimed by the petitioner or not, all the above sale
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deeds will have to be tested during the course of trial. That is the only
option available. They will have to be proved in manner known to law. The
lands conveyed under each one of the sale deed will have to be separately
demarcated. This is an exercise which can be done only during trial before
the competent civil court. Correcting or changing the revenue records will
never confer title. It would only be an exercise in futility.
31.Thereafter, the entire property had been consolidated in the name
of the 4th respondent by way of settlement deed executed by U.Nusrath
Sharief by Document No.2447 of 2007 dated 08.03.2007. The 4th
respondent therefore claims title to the entire 29 cents.
32.Whether that trace of title can be accepted or whether it should
be interfered with is again an issue which can be decided only by a civil
court after trial and on appreciation of pleadings and evidence adduced by
the parties.
33.In the midst of all these complications involving rival contentions
of title and possession the revenue authorities should not embark
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themselves on a mission to decide title. They cannot decide title. There is
bar that the revenue authorities cannot and should not decide title with
respect to any land. They can only carry out corrections in the revenue
registers and which corrections must be done only on the basis of title
determined by a decree lawfully obtained in a civil court. The parties have
been already relegated to the civil court in the earlier order dated
19.08.2019 in W.P.No.7745 of 2019 which writ petition had also been
filed by the present writ petitioner. He filed a review against the said order.
That review has also been dismissed. The sensible course available for the
writ petitioner is to approach the civil court, seek declaration of title and
demarcation of the property and also possession, if possession is not with
him.
34.In Kuppuswami Nainar Vs. The District Revenue Officer and
another reported in (1995) 1 MLJ 426, a Division Bench of this Court
headed by then Chief Justice had held as follows:-
“3. No provision is brought to our notice in
the Standing Orders of the Board of Revenue
taking away the jurisdiction of the Civil Court to
adjudicate upon the question of title relating to
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immovable property. Revenue Officers in a Patta
proceeding may express their views on the
question of title, but such expression of opinion
or decision is not conclusive and it is only
intended to support their decision for granting
Patta. Ultimately, it is the Civil Court which has
to adjudicate the question as to whether the
person claiming Patta is the title holder of the
land. Even if the Revenue Authorities decide the
question of title, that will not in any way affect the
jurisdiction of the Civil Court, which has to
decide the question without reference to the
decision of the Revenue Authorities.
4. Now the question for consideration is,
having regard to the fact that the District
Revenue Officer has expressed his opinion on the
question of title, whether the order under
question should be interfered with. It may be
pointed out here that in a Petition under Article
226 of the Constitution, the question of title
regarding immovable property cannot properly
be gone into, because a mass of evidence may be
required for adjudicating the question of title.
Even if we are to interfere with the order under
Appeal, it is the other party, who has to go to a
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Civil Court and establish title. As far as the
exercise of jurisdiction under Article 226 of the
Constitution is concerned, it does not matter to it
whether “A” party goes to Civil Court or “B”
party. Therefore, we are of the view that the
question of title has to be decided by the Civil
Court without reference to the order under
question. Hence, we decline to interfere with the
order challenged in the Writ Petition. However,
we make it clear that in the event a Suit for
declaration of title and for appropriate
consequential relief is filed, the Civil Court shall
decide such a Suit, without reference to the
findings recorded by Respondents 1 and 2 in the
impugned orders, but only on the basis of the
pleadings of the parties and evidence adduced by
them before it. We also make it clear that any
opinion expressed by the learned Single Judge,
contrary to what we have stated above, shall also
stand modified accordingly. With these
observations, the Writ Appeal is dismissed.
Consequently, C.M.P. No. 15872 of 1994 filed
along with the Appeal is also dismissed.”
35.A perusal of the dictum laid down shows that it is only the Civil
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Court which can adjudicate upon the question of title relating to
immovable properties. It had been further held that revenue officers may
express their views on the question of title but such expression of opinion
is not conclusive. Ultimately it the civil court which has to adjudicate the
question as to whether the person claiming patta is the title holder of the
land. Even if the revenue officials were to decide about the title, that
decision will not in anyway effect, the jurisdiction of the civil court which
has to decide the question without reference to the decision of the revenue
authorities. This judgment had been subsequently followed by a learned
Single Judge of this Court in Chockkappan and 2 others Vs. The State of
Tamil Nadu rep.by the Special Commissioner and Commissioner Land
Administration, Chepauk, Chennai – 5 and 2 others reported in 2004 (1)
CTC 136, wherein in paragraph 5, the learned Judge had held as follows:
“5. .....Though the Revenue Officials are
empowered to consider the prima
facie consideration of the right of the parties for
the grant of patta, when the patta stands in the
name of a particular person, inclusion of others
in the patta is impermissible, that too, on
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consideration of title by the Revenue Officials.
In all fairness, the Zonal Tahsildar,
Aruppukottai ought to have directed the 3rd
respondent to first establish her title before the
Civil Court before any inclusion is made in the
patta, as it is not the case of fresh patta but
inclusion of 3rd respondent in the patta which
already stand in the name of the petitioners. In
this context, the impugned order cannot be
sustained as the 3rd respondent's name has
been included only after the decision rendered
by the Revenue Officials regarding the title of
the 3rd respondent. Hence, the impugned order
is set aside. However, liberty is given to the 3rd
respondent to work out her remedy in Civil
Court as to her title over the land in question
and in the event, the 3rd respondent has
obtained a decree in her favour she can make
her application for inclusion of her name in the
patta. ......”
36.Again the said dictum had been upheld and followed by a
Division Bench of this Court in Vishwas Footwear Company Ltd., A-2
Third Phase, Guindy Industrial Estate, Chennai – 600 032, rep. by
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Director, V.Ravi Vs. The District Collector and others reported in 2011
(5) CTC 94. The Division Bench again extracted paragraphs 3 and 4
referred supra in Kuppuswami Nainar Vs. The District Revenue Officer
and another reported in (1995) 1 MLJ 426 and also the statement of law
as affirmed in Chockkappan (referred supra) and held as follows:
“15. .......As far as this law is concerned,
there cannot be a second opinion as to the limited
jurisdiction of the Revenue Divisional Officer only
to find out prima facie as to the title and when the
title is in dispute and there are rival claimants, he
should refer the parties to Civil Court for
adjudication and depending upon the decree that
may be passed by the Civil Court, relevant entries
in the Patta could be effected by the Revenue
Divisional Officer.”
37.The position of law is therefore very clear. The 1st respondent had
correctly referred the parties to approach the civil court to decide the issues
between them. The petitioner will not gain any advantage by correcting the
entries in the revenue register. The 4th respondent asserts title to the entire
29 cents in S.Nos.65/8A and 65/8B. The writ petitioner, will therefore,
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necessarily have to assert and establish his title and the only forum
available for that assertion is the civil court.
38.The Writ Petition will necessarily have to fail and the direction of
the 1st respondent directing the parties to approach the civil court is upheld,
I shall not interfere with the same.
39.The Writ Petition is dismissed. No order as to costs.
Consequently, the connected Writ Miscellaneous Petition is closed.
19.08.2021
msm
Index : Yes / No
Internet : Yes / No
Speaking order : Yes / No
To,
1. The Revenue Divisional Officer
Chengalpet, Kancheepuram District.
2. The Tahsildar
Taluk Office, Thiruporur,
Kancheepuram District.
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W.P.No. 9533 of 2019
V. BHAVANI SUBBAROYAN, J.
msm
W.P.No. 9533 of 2019
30.09.2021
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