Allowed

Shahila v. Tahsildar (Lr)

Kerala HC7 Sept 2018WP(C)/4271/2018

Case brief

AI extract

What is this about?

The High Court held that pendency of Debt Recovery Tribunal proceedings regarding an ad interim injunction on alienation does not bar mutation. The Court directed mutation authorities to consider and effectuate the mutation within one month, subject to future Tribunal orders.

What did the court decide?

Petitioner's application for mutation is to be considered and mutation effected within one month from the date of receipt of copy of this judgment, subject to orders of the Debt Recovery Tribunal.

Shahila Vs Tahsildar (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 MRS. JUSTICE ANU SIVARAMAN

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FRIDAY ,THE 07TH DAY OF SEPTEMBER 2018 / 16TH BHADRA, 1940

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WP(C).No. 4271 of 2018

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PETITIONER/S:

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SHAHILA

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AGED 45 YEARS, D/O. MUHAMMED HANEEFA,APSARA, BUNGALOWIL HOUSE,MANTHARA DESOM, EDAVA VILLAGE,THIRUVANANTHAPURAM DISTRICT.

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BY ADV. SRI. P.V. KUNHIKRISHNAN

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RESPONDENT/S:

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1 TAHSILDAR (LR)

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VARKALA, THIRUVANANTHAPURAM, PIN-695 141.

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2 VILLAGE OFFICER EDAVA VILLAGE OFFICE, CHERAYINKEEZHU,VARKALA, THIURVANANTHAPURAM, PIN-695 141.

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3 SUB REGISTRAR SUB REGISTRAR OFFICE, VARKALA,THIRUVANANTHAPURAM, PIN-695 001.

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4 SUB COLLECTOR THIRUVANANTHAPURAM, PIN-695 001.

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5 STATE OF KERALA REPRESENTED BY ITS SECRETARY,DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM,PIN-695 001.

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6 BANK OF INDIA VARKALA BRANCH, THIRUVANANTHAPURAM, PIN-695 141.

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WP(C).4271/18

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7 MR. SAHIR MH PROPRIETOR, M/S. SINDHI AGRO FEEDS,SHED NO.5, MINI INDUSTRIAL ESTATE,PERUMKULAM, VARKALA, THIRUVANANTHAPURAM, PIN-695 102.

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BY ADVS. SRI.J.HARIKUMAR, SC, BANK OF INDIA SRI.J.HARIKUMAR SC BANK OF INDIA

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OTHER PRESENT:

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SR. GP E.S. ASHRAFF

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).4271/18

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ANU SIVARAMAN, J.

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W.P(C).No. 4271 of 2018

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Dated this the 7^th day of September, 2018

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JUDGMENT

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The petitioner has approached this Court seeking the following

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reliefs:

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“i. call for the entire records which lead to Exhibit P4 and Exhibit P8 and issue a writ of certiorari quashing the same.

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ii. to issue a writ of mandamus order or direction, directing 1^st and 2^nd respondents to accept property tax from the petitioner for the property allotted to her as per Exhibit P1 and Exhibit P2.”

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Heard learned counsel for the petitioner, learned Government Pleader appearing for respondents 1 to 5 and the learned Standing Counsel for the 6^th respondent. Though notice was served on the 7^th respondent, there is no appearance for the 7^th respondent.

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It is submitted by learned counsel for the petitioner that the petitioner had obtained a property having an extent of 20.90 Ares in ReSy.No.497/7, Block No.1 of Edava Village, Varkala Taluk, Thiruvananthapuram by virtue of Exhibit P1 final decree proceedings and the property was also duly delivered to the petitioner. However, when the petitioner approached the respondents seeking mutation of the same, it

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WP(C).4271/18

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has been stated by Exhibit P4 that though the petitioner obtained a final decree, there is an order of the Debt Recovery Tribunal interdicting alienation of the property and therefore the property cannot be mutated. Learned counsel for the petitioner submits that Exhibit P5 is the order of the Debt Recovery Tribunal dated 9.1.2017. It is stated that the ad interim injunction is only restraining the respondent from alienating/encumbering the scheduled property until further orders. It is pertinent to note that the order is dated 9.1.2017, after Exhibit P1 final decree proceedings. Learned counsel for the petitioner submits that even though the petitioner had taken up the matter before the respondents, Exhibit P8 order is again passed stating that it is only on conclusion of proceedings before the Debt Recovery Tribunal that the petitioner's application for mutation can be considered.

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The learned counsel appearing for the 6^th respondent would submit that the 7^th respondent has mortgaged the property with the 6^th respondent Bank on the strength of a partition deed. It is stated that the mortgage is long prior to Exhibit P1 decree as also the suit filed for partition. It is stated that the matter is pending before the Debt Recovery Tribunal as against the 7^th respondent and that there is an ad interim injunction against the alienation of the property in question.

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WP(C).4271/18

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The learned Government Pleader also would submit that since the Bank has already approached the Debt Recovery Tribunal and since there is an injunction order, mutation cannot be effected at this stage.

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I have considered the contentions advanced. It appears that Exhibit P1 final decree proceedings was passed in 2015 and the petitioner has been allotted 1/18^th share of the property ignoring the partition deed No.2781/1/05 of the Varkala Sub Registrar Office. It is submitted by learned counsel for the petitioner that the property has already been taken delivery and the petitioner is in possession and enjoyment of the property covered by Exhibit P1 decree. It is evident from Exhibit P5 that what has been interdicted by the ad interim injunction order is only the alienation of the scheduled property. Exhibit P5 is dated 9.1.2017. Since the petitioner had approached the respondents seeking mutation on the strength of Exhibit P1 final decree proceedings, I am of the opinion that pendency of the proceedings before the Debt Recovery Tribunal as against the 7^th respondent as also Exhibit P5 cannot be a reason for interdicting any mutation in respect of the property. Subject to the orders to be passed by the Debt Recovery Tribunal in the proceedings as evident from Exhibit P5, the application for mutation is liable to be considered and mutation can be effected subject to further orders from the Tribunal. It is ordered accordingly. Orders shall

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WP(C).4271/18

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be passed on the application of the petitioner for mutation within one

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month from the date of receipt of a copy of this judgment.

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The writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN

JUDGE

vgs7/9

WP(C).4271/18

WP(C).4271/18

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE FINAL DECREE DATED 30/10/2015 IN OS NO.85/2006 ON THE FILES OF THE MUNSIFF, VARKALA.

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EXHIBIT P2 TRUE COPY OF THE DELIVERY REPORT OF THE AMEEN GIVING POSSESSION OF THE PROPERTY BASED ON EXHIBIT P1 DECREE.

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EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 26/07/2017. EXHIBIT P4 TRUE COPY OF THE LETTER NO.K1/20683/16 DATED 02/11/2017 OF THE 1ST RESPONDENT TO THE PETITIONER.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 09/01/2017 IN IA NO.366/2016 IN OA NO.42/2016 ON THE FILE OF THE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM. EXHIBIT P6 TRUE COPY OF THE ORDER NO.B-2/16715/2016 DATED 11/05/2017 OF THE 4TH RESPONDENT. EXHIBIT P7 TRUE COPY OF THE LAWYER NOTICE DATED 15/11/2016. EXHIBIT P8 TRUE COPY OF THE ORDER NO.K1/20683/16 DATED 29/11/2017.

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/TRUE COPY/

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PS TO JUDGE

Shahila v. Tahsildar (Lr)

Case brief

What is this about?

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Shahila v. Tahsildar (Lr)

Case brief

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