Allowed

Ashique Mamu v. the Village Officer

Kerala HC29 Nov 2018WP(C)/30255/2018

Case brief

AI extract

What is this about?

The High Court of Kerala quashed an order rejecting a mutation application due to alleged legal heirship disputes. The judge held that the Tahsildar's stance requiring cancellation and fresh sale deeds was arbitrary, especially where rights were previously released. The mutation was remitted to the Village Officer for grant. Relief: Quash order, remit application, mandamus for grant within 3 weeks

What did the court decide?

Impugned Ext.P-7 order quashed. Application remitted to 1st Respondent-Village Officer to grant mutation within 3 weeks of certified copy receipt.

Ashique Mamu Vs the Village Officer — Property and Title | 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 MR. JUSTICE ALEXANDER THOMAS

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THURSDAY,THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940

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WP(C).No. 30255 of 2018

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PETITIONER:

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ASHIQUE MAMU AGED 48 YEARS S/O ABDUL KHADER, “INSABAH”, KANNOTHUMCHAL, P.O THANA, KANNUR DISTRICT

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BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH

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RESPONDENTS:

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1 THE VILLAGE OFFICER PADIYUR, PADIYUR VILLAGE OFFICE, IRIKKUR, KANNUR -670703 2 THE TAHSILDAR IRITTY, TALUK OFFICE, IRITTY, KANNUR-670703

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SRI.SAIGI JACOB PALATTY,SR.GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P(C)No.30255 of 2018

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ALEXANDER THOMAS, J.

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=============================

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W.P(C)No.30255 of 2018

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=============================

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Dated this the 29^th day of November, 2018

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JUDGMENT

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The prayers in the above Writ Petition

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(Civil) are as follows:

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“(i) issue writ of certiorari or any other writ or order quashing Exhibit P7 as illegal.

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(ii) issue writ of mandamus or any other writ or order directing the 1^st respondent to effect mutation of the property purchased by the petitioner in the light of Exhibit P1 to 6

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(iii) grant such other order that this Hon'ble court may deem fit and proper in the facts and circumstances of this case.”

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2. Heard Sri.K.R.Avinash Kunnath, learned

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counsel for the petitioner and Sri.Saigi Jacob

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Palatty, learned Sr.Government Pleader appearing for the respondents. The petitioner is essentially aggrieved by the impugned Ext.P-7 order dated 02.06.2018 issued by the

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W.P(C)No.30255 of 2018

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2^nd respondent-Tahsildar, whereby the request of the petitioner to mutate the property purchased by him has been denied.

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3. The petitioner had purchased properties which from one Mubashir Khan, as per Ext.P-1

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sale deed No.912/2017, Ext.P-2 sale deed No.946/2017 & Ext.P-3 sale deed No.1081/2017 of SRO, Irikkur and the said properties are situated in the limits of the 1^st respondentPadiyur Village. It is stated that the property had originally belonged to one Smt.Ambiloth Ramla. The said Ramla was married to one Mustafa and the abovesaid Mubashir Khan was the son born to Ramla and Mustafa, in their wedlock. That when Mubashir Khan was six months’ old, the abovesaid Mustafa had deserted his wife Ramla and the child (Mubashir Khan) and the whereabouts of Mustafa were not known for about more than 30 years. In the meanwhile

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W.P(C)No.30255 of 2018

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Smt.Ramla, the mother of Mubashir Khan had also died. Since the whereabouts of Mustafa were not known for more than 30 years, his abovesaid son Mubashir Khan under the solemn belief that the said Mustafa is no more, had executed Exts.P-1 to P-3 sale deeds in favour of the petitioner, on the premise that Mubashir Khan is the sole surviving legal heir of the deceased Ramla. Thereafter, the petitioner had submitted application for grant of mutation of the abovesaid properties covered by Exts.P-1 to P-3 sale deeds. Whereupon the respondents had taken the stand that Mubashir Khan cannot be said to be the sole surviving legal heir of the deceased Ramla, without sufficient proof of the death of Mustafa. Thereafter, due to earnest endeavours, the said Mustafa was found out and he had voluntarily executed Ext.P-4 registered release deed No.5/2018 of SRO, Irikkur dated

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W.P(C)No.30255 of 2018

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28.12.2017, whereby he had released his rights in the abovesaid properties of Ramla, in favour of his son-Mubashir Khan. By way of abundant caution, Sri.Mubashir Khan in turn had executed Ext.P-5 registered sale deed No.346/1/2018 Ext.P-6 sale deed No.347/1/2018 of SRO Irikkur, in favour of the petitioner, conveying the rights of Mubashir Khan in the properties covered by Exts.P-1 to P-3, which were later released by him, in favour of Mubashir Khan. Thereafter, the petitioner had again submitted application for mutation. But, surprisingly, the said request for mutation has been rejected by the 2^nd respondent-Tahsildar, as per the impugned Ext.P-7 order dated 02.06.2018 stating that steps should be taken to cancel all the abovesaid sale deeds and execute a fresh sale deed by Mubashir Khan, on the basis of Ext.P-4 release deed, etc. It is this order at

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W.P(C)No.30255 of 2018

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Ext.P-7, that is under challenge in this Writ Petition.

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4. The facts are not in dispute. It is clear that Exts.P-1 to P-3 registered sale deeds were executed by Mubashir Khan, in favour of the petitioner at that time, when it was thought that Mustafa, the father of Mubashir Khan, who was missing for more than 30 years, is no more and that Mubashir Khan is the sole surviving legal heir of Ramla, the title holder of the said subject property. Later, when Mustafa had turned up, he has voluntarily executed Ext.P-4 release deed No.5/2018, whereby he had released his rights, in respect of the abovesaid properties of Ramla, fully in favour of his son (Mubashir Khan). Thereafter by way of abundant caution, Mubashir Khan has again executed Exts.P-5 & P-6 sale deeds, whereby he has conveyed even the rights of

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Mussabhir Khan released to him by his father Mustafa, as per Ext.P-5 release deed, in favour of the petitioners. In the teeth of Exts.P-1 to P-3 & P-4 release deeds, this Court cannot understand, as to why the 2^nd respondentTahsildar is still taking the stand that the all the sale deeds should be cancelled and that fresh sale deeds should be executed by Mubashir Khan, in favour of the petitioner, on the basis of Exts.P-4 release deed. That apart, it is all the more surprising that the 2^nd respondentTahsildar has not even taken cognizance of Exts.P-5 & P-6 registered sale deeds, whereby Mubashir Khan has again executed sale deeds in favour of the petitioner, whereby he has conveyed the rights of his father Mustafa, which has released to Mubashir Khan, as per Ext.P-5, to the petitioner. Further action should have been taken, in the matter, atleast

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after the execution and registration of Ext.P-5

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& P-6 sale deeds. It is not known to this

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Court as to why the 2^nd respondent is that insisting all the said sale deeds should be cancelled and fresh sale deeds should be executed, etc. The abovesaid stand taken by the 2^nd respondent-Tahsildar in Ext.P-7 can only be termed as arbitrary, capricious and illegal. Hence, the impugned rejection order at Ext.P-7 will stand set aside. The application submitted by the petitioner for grant of mutation in respect of the properties covered by Exts.P-1 to P-3 and P-5 & P-6, etc. will stand remitted to the 1^st respondent-Village Officer, for consideration afresh. The 1^st respondent-Village Officer will consider the said request of the petitioner for grant of mutation of those properties and will grant the same, if it is otherwise in order. It is made

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clear and declared that the respondents cannot refuse to grant mutation and to accept basic land tax from the petitioner in respect of the abovesaid properties on the ground stated in Ext.P-7. Thereafter, the basic land will also be accepted from the petitioner and receipts in that regard should also be issued. The entire process in this regard should be duly completed by the 1^st respondent-Village Officer, without much delay, preferably within a period of 3 weeks from the date of production of a certified copy of this judgment.

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With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

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Sd/ALEXANDER THOMAS, JUDGE

vgd/03.12.18

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE DATED	COPY 26.4	OF THE .2017 O	SALE DEED NO. 912/2017 F SRO, IRIKKUR.
EXHIBIT P2	TRUE DATED	COPY 2.5.	OF TH 2017 OF	E SALE DEED 946/2017 SRO, IRIKKUR.
EXHIBIT P3	TRUE 1081/ IRIKK	COPY 2017 UR.	OF DATED	THE SALE DEED NO. 18.5.2017 OF SRO
EXHIBIT P4	TRUE DATED	COPY 28.1	OF THE 2.2017.	RELEASE DEED NO.5/18
EXHIBIT P5	TRUE 346/1	COPY /2018	OF THE DATED	DEEDS AS DOCUMENT NOS. 14.2.2018.
EXHIBIT P6	TRUE 347/1	COPY /2018	OF THE DATED	DEED AS DOCUMENT NO. 14.2.2018.
EXHIBIT P7	TRUE RESPO	COPY NDENT	OF T DATED	HE ORDER OF THE 2ND 2.6.2018.

Ashique Mamu v. the Village Officer

Case brief

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Ashique Mamu v. the Village Officer

Case brief

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