Dismissed

Bhavani v. Tahsildar

Kerala HC28 Feb 2018WA/494/2018

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a Writ Appeal filed by Bhavani challenging the rejection of her application for transfer of registry. The court held that the excess land discovered during measurement was part of unpartitioned family property, hence Rule 28 (intended for adverse possession) was inapplicable. result|headnote rely on the original judgement for exact wording.

What did the court decide?

Application under Rule 28 of Transfer of Registry Rules rejected; appeal for transfer and exception of the writ petition dismissed.

Bhavani Vs Tahsildar — Partition | Kerala HC (2018)

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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.ANTONY DOMINIC &

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939

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WA.No. 494 of 2018 IN WPC. 25145/2017

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AGAINST THE JUDGMENT IN WP(C) 25145/2017 of HIGH COURT OF KERALA DATED 15-11-2017

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APPELLANT(S)/PETITIONER

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BHAVANI

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AGED 55 YEARS, W/O.CHANDRAN, PARAKKAL HOUSE, KORECHAL DESOM, CHEMBUCHIRA P.O., THRISSUR DISTRICT.

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BY ADV.SRI.V.M.KRISHNAKUMAR

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RESPONDENT(S)/RESPONDENTS:

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TAHSILDAR, CHALAKUDY TALUK CHALAKUDY, THRISSUR DISTRICT, PIN-680307.

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VILLAGE OFFICER, MATTATHUR VILLAGE MATTATHUR, THRISSUR DISTRICT, PIN-680684.

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BY GOVERNMENT PLEADER SRI.ARAVIND KUMAR BABU

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ANTONY DOMINIC, C.J. &

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DAMA SESHADRI NAIDU, J.

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W. A. No.494 of 2018

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Dated this the 28^th day of February, 2018

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JUDGMENT

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Antony Dominic, C.J.

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An application made by the appellant for transfer of registry in terms of Rule 28 of the Transfer of Registry Rules, 1966, (for short “the Rules”) was rejected and that led to the filing of the writ petition. The writ petition having been dismissed, the appeal is filed.

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The case of the appellant is that, in 1985, following Ext.P4 partition, her mother acquired 8.836 Ares of land. It is stated that in 1985 itself, her mother gifted that property to her reserving life interest. Subsequently, the appellant and her mother jointly transferred the property to her husband in 1997, and thereafter, her husband executed Ext.P1 Settlement Deed in the year 2006, settling the property to her.

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The appellant contends that on actual measurement,

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the extent of the property was found to be 11.92 Ares and

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W. A. No.494 of 2018

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thereupon, Ext.P6 application was submitted seeking transfer of registry under Rule 28 of the Rules. This was considered and the first respondent passed Ext.P11 order requiring the appellant to move the Land Tribunal and to obtain “patta” under the Kerala Land Reforms Act. This was the background in which the writ petition was filed.

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According to the appellant, her mother and herself are in possession of the property since 1985 and that in view of the continued and uninterrupted possession of the property since then, she is entitled to maintain the application under Rule 28 of the Rules and get the property transferred. She also contends that transfer of registry only being an arrangement for fiscal purposes, order passed on her application under Rule 28 of the Rules cannot have impact on any claim, if anybody has, over the property in question.

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However, as rightly noticed by the learned single Judge, though the family originally owned 0.4411 hectares of land, what was partitioned was only 0.4044 hectares and it was out of this extent, that the appellant's mother acquired 8.836

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W. A. No.494 of 2018

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Ares on partition of the property effected in 1985. Therefore, the excess land, if any, is the remainder of the family property and that therefore, the appellant could not have maintained an application under Rule 28 of the Rules.

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The appellant has no case that the total extent of the family property was anything less than 0.4411 hectares nor does she contest the assertion that what was partitioned was not 0.4044 hectares. Obviously therefore, the entire family property was not partitioned. If that be so, what is left out is the balance of the family property available for partition. If on that property, the appellant acquires title in any manner, she necessarily will have to establish the same and such a relief cannot be obtained by making an application under the Transfer of Registry Rules, 1966, as was intended to be done. We do not find any reason to interfere with the impugned judgment.

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Insofar as Rule 28 of the Rules relied on by the learned counsel is concerned, Rule 28, as is evident from its title, can have application only in a case where title is perfected by adverse possession. Insofar as this case is concerned, admittedly

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W. A. No.494 of 2018

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appellant's mother was a co-owner of the property and the appellant's claim is only under her mother. Such a person cannot claim the benefit of Rule 28 of the Rules and therefore, we cannot accept the applicability of Rule 28 of the Rules either.

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Appeal fails and is accordingly dismissed.

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Sd/-

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ANTONY DOMINIC CHIEF JUSTICE

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Sd/- DAMA SESHADRI NAIDU JUDGE

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kns/-

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//TRUE COPY//

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P.S. TO JUDGE

Bhavani v. Tahsildar

Case brief

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Bhavani v. Tahsildar

Case brief

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