Disposed

K. Radha v. Tahasildar (Lr)

Kerala HC10 Dec 2018WP(C)/39412/2018

Case brief

AI extract

What is this about?

The petitioner, a retired Headmistress, sought fixation and mutation of 0.29 ares of land in Survey No.194/3 via a writ petition. The court found the land was not covered by the existing purchase certificate. The petitioner was directed to file an application for assignment of tenure under the relevant Act to initiate appropriate proceedings.

What did the court decide?

Petitioner directed to file application for assignment of tenure under Section 72K Kerala Land Reforms Act to initiate assignment procedure.

K. Radha Vs Tahasildar (Lr) — 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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MONDAY ,THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940

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WP(C).No. 39412 of 2018

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PETITIONER/S:

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K. RADHA AGED 73 YEARS 49/199, PUTHUKKALAVATTOM ROAD, ELAMAKKARA P.O., ERNAKULAM-682 026.

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BY ADV. SRI.A.RAJASIMHAN

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RESPONDENT/S:

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1 TAHASILDAR (LR)

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KANAYANNUR TALUK OFFICE, ERNAKULAM-682 011.

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2 VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE, ERNAKULAM-683 565.

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3 SUB REGISTRAR OFFICER, SUB REGISTRAR OFFICE, EDAPPALLY, ERNAKULAM-683 565.

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4 ADDL.R4. THE DEPUTY COLLECTOR (LAND REFORMS) COLLECTORATE, ERNAKULAM, KOCHI - 682030. (ADDL.R4 IS SUO MOTU IMPLEADED AS PER ORDER DATED 10.12.2018.)

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OTHER PRESENT:

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SMT.A.C.VIDHYA,GOVT.PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C)No.39412/2018

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ALEXANDER THOMAS, J.

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W.P.(C)No.39412 of 2018

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Dated this the 10^th day of December, 2018

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JUDGMENT

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The main prayer in the above Writ Petition

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(Civil) is as follows:

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“1. Issue a writ of mandamus or order directing the 1^st and 2^nd respondents to effect mutation of 0.29 ares of land in 194/3 of Edappally South Village in favour of the petitioner and permit her to pay land tax.

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2. Heard Sri. A. Rajasimhan, the learned

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counsel appearing for the petitioner and Smt.

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A.c. Vidhya, the learned Government Pleader appearing for the respondents.

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3. The petitioner is a retired Headmistress and an elderly citizen, aged more than 73 years. According to the petitioner, she had purchased a total extent 2.02 Ares comprised in Survey No.194/4 of Edappally South Village, Kanayannur Taluk, Ernakulam Revenue District as per Ext.P1 registered sale deed No.748/1979 of SRO Edappally. The petitioner had claimed fixity of

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W.P.(C)No.39412/2018

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tenure in respect of the above said land and had sought for assignment of the above said land in terms of the provisions contained in Section 72K of the Kerala Land Reforms Act, 1963. The due enquiry was conducted and suo motu proceedings was registered as S.M.No.113/2006 on the file of the 4^th respondent Land Tribunal presided over by the Deputy Collector(Land Reforms), Collectorate, Ernakulam. The 4^th respondent-Land Tribunal had issued Ext.P3 purchase certificate dated 8.6.2008 in the said suo motu proceedings, S.M.No.113/2006 to the petitioner for an extent of land only 1.85 Ares. Ext.P3 purchase certificate was preceded by Ext.P2 report, wherein it was found that the petitioner is in possession of 1.65 Ares of property in Survey No.194/4 and additional extent of 0.29 Ares in Survey No.194/3. Earlier, the petitioner had purchased 0.20 Ares in Survey No.194/4 on the basis of registered sale deed No.2581/2002. It is now submitted by the learned Government

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W.P.(C)No.39412/2018

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Pleader on the basis of the instructions that

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the 1.85 Ares of property mentioned in Ext.P3 purchase certificate comprises of the above said 1.65 Ares of property in Survey No.194/4 and 0.20 Ares in Survey No.194/4, which the petitioner had obtained on the basis of Sale Deed No.2581/2002. That it is pointed out by the learned Government Pleader that the above said 0.29 Ares of property in Survey No.194/3 does not form part of the grant of the purchase certificate as per Ext.P3 in respect of the 1.85 Ares of property covered by Ext.P3. It is pointed out by the petitioner that the enquiries which preceded by Ext.P3 purchase certificate more particularly Ext.P2 as well as the boundary description of 1.85 Ares of property covered by Ext.P3 purchase certificate would show that the said 0.29 Ares of property in Survey No.194/3 is in the possession of the petitioner. Further, it is pointed out that the western boundary of

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the 1.85 Ares of property shown in Ext.P3

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W.P.(C)No.39412/2018

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purchase certificate as per the Schedule is clearly shown by the respondents as belonging to the petitioner and lying in Survey No.194/3 and that the said western boundary property is actually the 0.29 Ares of property. So, it is clear that, so far the petitioner has not secured purchase certificate in respect of 0.29 Ares of property in Survey No.194/3. The case of the petitioner is that the above said 0.29 Ares of property is also inclusive of the larger extent of 2.02 Ares of property in Ext.P1 sale deed and that presumably Survey No.194/4 shown in Ext.P1 sale deed for the entire 2.02 Ares of property is a mistake as major part of the said property is in Survey No.194/4 and minor part of the said property is actually in Survey No.194/3. The petitioner had applied before respondents 1 and 2 for grant of mutation in his favour in respect of the above said 0.29 Ares of property comprised in Survey No.194/3. Respondents 1 and 2 have now taken the stand

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that if the said 0.29 Ares of property is part of the 2.02 Ares of property covered by Ext.P1, then the survey number shown for the total extent of 2.02 Ares is in Survey No.194/4 and that therefore, it is for the petitioner to seek for correction of the said survey number to the extent it relates to the said 0.29 Ares of property in relation to Ext.P1 sale deed and otherwise respondents 1 and 2 are not in a position to mutate the said property in favour of the petitioner as the said extent of 0.29 Ares of property is not inclusive of the 1.85 Ares of property covered by Ext.P3 purchase certificate etc. The petitioner would point out

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that Ext.P1 registered sale deed has been executed as early as on 15.2.1979 and it is not even known whether the petitioner's vendor in respect of Ext.P1 sale deed is still alive or traceable etc. and that the petitioner at this elderly age of 73 years cannot be asked to do the impossible of getting a rectification deed

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W.P.(C)No.39412/2018

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executed and registered with the participation

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of the vendor of Ext.P1 etc.

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4. From the above said versions of both sides, one thing is clear and it is that the total extent of 1.85 Ares covered by Ext.P3 purchase certificate is comprised of 1.65 Ares in Survey No.194/4 and 0.2 Ares (in relation to Sale Deed No.2581/2002) in Survey No.194/4. Therefore, the said total extent of property coming to an extent of 1.85 Ares (1.65 Ares + 0.20 Ares= 1.85 Ares) is lying in Survey No.194/4 and that therefore there is no mistakes in Ext.P3 purchase certificate as regards the survey number shown therein. There does not

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appear to be any serious doubt that the additional land coming to 0.29 Ares is actually lying in Survey No.194/3 and not in Survey No.194/4 as shown in Ext.P1 Sale Deed. If the petitioner finds it difficult to execute and register a rectification deed in respect of Ext.P1 Sale Deed to the extent it relates to

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the description of the survey number in respect of the 0.29 Ares of property, then it is for the petitioner to ensure that her grievances are got redressed in the manner known to law.

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5. It is now submitted by Sri.A.

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Rajasimhan, the learned counsel appearing for the petitioner that the enquiry report that preceded Ext.P3 purchase certificate will show that the above said 0.29 Ares of property in Survey No.194/3 is also in the possession of the petitioner and that the said property forms the western boundary of the property of 1.85 Ares covered by Ext.P3 purchase certificate and that the petitioner has fixity of tenure in respect

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of the 0.29 Ares of property as well and that she would seek assignment of the said 0.29 Ares of property in Survey No.194/3 as per the provisions contained in the Kerala Land Reforms Act and that this Court may direct the respondents more particularly, the 4^th respondent to ensure necessary completion of procedural

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formalities in that regard.

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5. Having regard to the above said facts and circumstances of this case, it is ordered that in case the petitioner has a case that she is entitled for assignment of said 0.29 Ares of property lying in Survey No.194/3 as per the provisions contained in the Kerala Land Reforms Act, she may file application for assignment of the said land in terms of that provision, upon which the competent respondent authority may conduct an enquiry and if it is found fit, may register suo motu proceedings in that regard. Thereafter, if the said suo motu proceedings are so registered, the 4^th respondent Land Tribunal

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will take steps to expedite the disposal of such suo motu proceedings with notice to the petitioner, the landlord and any other affected parties without much delay. It is for the petitioner to set in motion appropriate proceedings in that regard, in case she has a contention that she is entitled for assignment

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W.P.(C)No.39412/2018

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of the land coming to an extent of 0.29 Ares of property in Survey No.194/3 as per the provisions contained in the Kerala Land Reforms Act etc., as aforestated.

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

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Sd/-

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ALEXANDER THOMAS, JUDGE.

acd

W.P.(C)No.39412/2018

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.748/1979 OF EDAPPALLY SUB REGISTRAR OFFICE. EXHIBIT P2 TRUE COPY OF THE REPORT OF THE TALUK SURVEYOR, KANAYANNUR DATED 28.02.2006. EXHIBIT P3 TRUE COPY OF THE PURCHASE CERTIFICATE DATED 08.06.2008. EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED 23.06.2016. EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED17.01.2017. EXHIBIT P6 TRUE COPY OF THE LETTER DATED 27.07.2017. EXHIBIT P7 TRUE COPY OF THE LETTER DATED 17.01.2017. TRUE COPY P.S. TO JUDGE.

K. Radha v. Tahasildar (Lr)

Case brief

What is this about?

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K. Radha v. Tahasildar (Lr)

Case brief

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