Allowed

K. Sivasankaran v. the Tahsildar

Kerala HC7 Jul 2017WA/2396/2016

Case brief

AI extract

What is this about?

The High Court, in an intra-court appeal, set aside an order directing the Tahsildar to entertain an objection to a mutation application based on a registered partition deed. The Court held that the revenue authority cannot adjudicate disputes regarding title and must proceed on the basis of the registered deed while civil proceedings remain pending.

What did the court decide?

The appeal was allowed; the order of the Tahsildar and the judgment of the learned single judge were set aside, and the Tahsildar was directed to proceed in accordance with law.

K. Sivasankaran Vs the Tahsildar — Property and Title | Kerala HC (2017)

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'C.R.'

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939

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WA. NO. 2396 OF 2016 ()

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(AGAINST THE JUDGMENT DATED 13-10-2016 IN WP(C) NO.9498/2016.)

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APPELLANT(S)/PETITIONER:

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K. SIVASANKARAN, AGED 70 YEARS, S/O. SANKARAN NAIR, 'RAGAM', KARUVAMBRAM P.O., MANJERI, MALAPPURAM DISTRICT, PIN-676123.

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BY ADVS. SRI. K. M. SATHYANATHA MENON SMT. KAVERY S. THAMPI

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RESPONDENT(S)/RESPONDENTS & ADDITIONAL 4TH RESPONDENT:

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THE TAHSILDAR, TALUK OFFICE, ERNAD, MANJERI, MALAPPURAM DISTRICT, PIN-676121.

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STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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RUKMINI AMMA, W/O. KARUNAKARAN NAIR, VADAKKE KARATTU HOUSE, MELAKKAM, PARUVAMBRAM P.O., MANJERI, MALAPPURAM DISTRICT, PIN-676 123.

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SAIFUDDHEEN C.P., S/O. ABDUL HAMEED, CHALARATHPUTHUKKUDI HOUSE, DEEMA COTTAGE, KUTHUKAL ROAD, MANJERI, MALAPPURAM DISTRICT, PIN-676 123.

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R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI M. A. ASIF R4 BY ADV. SRI. P. SAMSUDIN

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA. NO. 2396 OF 2016 ()

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APPENDIX

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APPELLANT'S ANNEXURES:-

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ANNEX.-I:- COPY OF THE JUDGMENT IN O.S. NO.98 OF 1988 ON THE FILES OF SUB COURT, MANJERI DATED 02.03.1991.

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ANNEX.-II:- COPY OF THE FINAL DECREE IN I.A. NO.1305 OF 1991 IN O.S. NO.98 OF 1988 ON THE FILES OF THE SUB COURT, MANJERI DATED 28.06.1995.

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RESPONDENTS' ANNEXURES:-NIL

/TRUE COPY/

P.A. TO JUDGE

“C.R.”

NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN V., J.

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W.A. No.2396 of 2016

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- - - - Dated this the 7^th day of July, 2017

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JUDGMENT

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Navaniti Prasad Singh, C.J.

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This intra court appeal is filed by the writ petitioner being aggrieved by the judgment passed by the learned single Judge dated 13.10.2016 while disposing of W.P.(C) No.9498 of 2016.

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The third respondent, the sister of the appellant, was served with notice of proceedings in this appeal. She has chosen not to appear, as was the case in the writ proceedings. The fourth respondent has appeared through counsel. With their consent, we are disposing of this appeal at this stage itself.

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The whole controversy is with regard to application of the appellant for mutation in respect of about 11 acres of land which earlier stood in the name of his mother being Karuthedathu Kainikkara Meenakshi Amma. According to the appellant, during the life time of mother itself, there was a partition amongst the family members. In the partition, the third respondent relinquished her share. The partition deed was registered, i.e.,

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WA.2396/16

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Exhibit P1. This partition deed having been executed, the appellant made an application before the Tahsildar to effect mutation accordingly. The 3^rd respondent approached the Tahsildar and sought for setting aside the partition deed. At the first instance, the Tahsildar rejected the objection filed by the third respondent on the ground that it was a registered partition deed and no objection could be heard. The same was confirmed by the Sub Collector, Perintalmanna, as well. After sometime, she again filed an application before the Tahsildar. This time, strangely enough, the Tahsildar entertained her application and sought opinion from a Government Pleader. The Government Pleader opined that as the registered partition deed was being disputed and so long as the dispute is not decided as between the parties, mutation cannot be effected according to the partition deed. This is what brought the appellant to the writ court.

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While the writ petition was pending, the fourth respondent filed an application for impleadment. He set up a story that in 1987, the appellant/writ petitioner being power of attorney holder of his mother, who was the beneficial owner of the entire 11 acres of land sold that land to his father, i.e., father of the fourth respondent. Therefore, neither the appellant nor his

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WA.2396/16

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sister or any other family members had a right to get mutation of the property in their name. As noted above, even though the impleadment application was opposed by the appellant, it was allowed on the day when final orders were pronounced by the learned single Judge. The learned single Judge held in substance that so long as the disputes remain unresolved, the mutation as was obtaining before would continue and there would be no change pursuant to the application made by the appellant. These two issues have brought the appellant to this Court in this intra court appeal.

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We would first, like to deal with the impleaded fourth respondent. The fourth respondent's case is that the appellant, acting as his mother's power of attorney holder, had sold the entire 11 acres of land to the fourth respondent's father. This was done in the year 1987. His submission would be that accordingly the appellant or the appellant's mother or sister had no property left, no title in that proper subsisted with them to see mutation. Therefore, rightly the Tahsildar refused to effect mutation. He further pleaded that in 2016, he has also instituted a suit for cancellation of Exhibit P1 on the basis of 1987 sale deed, in favour of his father. On the other hand, the appellant

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submits that in 1988, a partition suit was filed in respect of partitioning the 11 acres of land of the appellant's mother, which land is being claimed by the impleaded fourth respondent. In that suit, fourth respondent's father was also made a defendant. The suit was contested and it was decreed for partition as amongst the appellant, his mother and other family members to the exclusion of the father of the fourth respondent. That suit or the decree in the suit became final. No one appealed against it, much less father of the fourth respondent, who was made the defendant therein. The effect of this was that the claim of the fourth respondent through his father to the property in question stood negatived. After about eight years, the fourth respondent sought to file an appeal against the said judgment, which was dismissed. This further compounded the case against the fourth respondent. In 2016, the fourth respondent has filed yet another suit for declaring Exhibit P1 deed seeking its cancellation. In that, he had sought attachment of property before judgment and an injunction against alienation or change of nature of property. All those interlocutory applications were dismissed. Thus, as of date, the fourth respondent has not even a semblance of claim in respect of the property in question.

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WA.2396/16

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We have considered the facts as noted above. In view of the fact that father of the fourth respondent was a party to the suit and notwithstanding the same, the property was partitioned amongst others to the exclusion of the father, who it is said, had purchased the entire property a year before the partition suit, speaks a lot. It dis-entitles the father of the fourth respondent or the fourth respondent claiming through him, to claim any right, title or interest in the said property anymore on the principles of res judicate . As noted above, a belated appeal filed by the fourth respondent was also dismissed. To establish his right, he has now filed yet another suit in which, and pertinently, the interlocutory applications filed therein were also dismissed. Therefore, his right in the property or even, prima facie, his right in the property is yet to be found. Therefore, in our view, he ought not to have been granted any indulgence by the learned single Judge, much less permission to intervene in the mutation proceedings. His impleadment itself was not proper.

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Now, coming to the objection of the third respondent, the sister of the appellant. The third respondent has not denied execution of the partition deed. All she says was that she was misled into signing the same. She has now filed a suit for getting

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WA.2396/16

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over Exhibit P1. The suit is pending. But as of now the position is that there is a registered partition deed. Execution whereof is not denied, registration whereof is not denied. That being the position, in our view, the Tahsildar was correct when he first ordered that he would not take cognizance of the objection of the third respondent. We thus, find that the impugned order of the Tahsildar in the writ petition and the direction of the learned single Judge authorising the Tahsildar to hear and decide the dispute cannot be held to be correct. If there is serious bona fide disputes raised with regard to right, title and interest in the property then obviously, Tahsildar is not the authority to decide the same. It is a civil court of competent jurisdiction alone which can decide the matter.

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As noted above, the dispute raised by the third respondent, the sister, is yet to be considered by the civil court where the suit is pending. She did not deny execution of the partition deed. Therefore, so far as the mutation authorities are concerned, the Tahsildar ought to have proceeded on the basis of the application filed by the appellant leaving the sister to move civil court. We may notice that it is now well settled that mutation entries in revenue records by itself does not create any right, title

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or interest in the property. It is a record only for the purpose of collection of land revenue. (See Balwant Singh and Another v. Daulat Singh (Dead) by Lr.s ad Others [(1997) 7 SCC 137]). Right, title or interest is to be decided, in case of any dispute, only by civil court of competent jurisdiction.

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We may also note that once the Tahsildar had decided not to take cognizance of the objection filed by the third respondent, at the first instance, without there being any material change in circumstances, on the second occasion, he could not have totally given a go bye to the earlier orders and now decided to entertain the objection. Such an action, even by an administrative authority, cannot be countenanced. We, therefore, have no option, but to set aside the order of the Tahsildar, the judgment of the learned single Judge under appeal and allow this appeal with a direction to the Tahsildar to proceed in accordance with law.

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Sd/Navaniti Prasad Singh, Chief Justice

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Sd/Raja Vijayaraghavan V., Judge

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krj.10/7

K. Sivasankaran v. the Tahsildar

Case brief

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K. Sivasankaran v. the Tahsildar

Case brief

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