Dismissed

District Collector, v. Vincent

Kerala HC23 Oct 2019RP/44/2019

Case brief

AI extract

What is this about?

In this review petition, revenue authorities sought to review an order issued possession certificate to the respondent citing a boundary dispute. The Court held that a boundary dispute cannot obstruct issuance of a certificate for the extent where the respondent has undisputed title. The Review Petition was dismissed.

What did the court decide?

Review petition dismissed; urged issuance of possession certificate to respondent within 2 months.

District Collector, Vs Vincent — Property and Title | Kerala HC (2019)

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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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WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941

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RP.No.44 OF 2019 IN WP(C). 25953/2018

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AGAINST THE ORDER/JUDGMENT IN WP(C) 25953/2018(T) OF HIGH COURT OF KERALA

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REVIEW PETITIONERS:

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1 DISTRICT COLLECTOR, ERNAKULAM 682 030.

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2 THE TAHASILDAR KUNNATHUNADU, TALUK OFFICE, PERUMBAVOOR, ERNAKULAM 683 542.

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3 THE VILLAGE OFFICER KODANADU VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM 683 544.

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BY GOVERNMENT PLEADER

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RESPONDENT:

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VINCENT,

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S/O KOCHU THOMMAN, PARAPPILLI HOUSE, KODANAD.P.O, ERNAKULAM.

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R1 BY ADV. SRI.MAITHEEN M.PAREETH

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OTHER PRESENT:

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SRI.N.B.SUNILNATH, GP

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 23.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RP.No.44 OF 2019 IN WP(C).25953/2018 2

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ORDER

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This review petition is filed seeking a review

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of the judgment on the ground that the issuance of the possession certificate to the petitioner in the writ petition was not possible since there was a boundary dispute with regard to the property and a suit had been filed. It is stated that the writ petitioner had conceded for payment of tax for the extent of property mentioned in Exhibit P6, though he had raised claims with regard to a larger extent of the land as per Exhibit P1. The direction in the judgment was to accept land tax from the petitioner in respect of the property covered by Ext.P6, that is an extent of 82.20/ares of property, out of which, 37 ares is comprised in survey No.17/7 and 45.20 ares in survey No. 17/8 of Block No.5 of Kodanad village in Kunnathunad Thaluk, Perumbavoor. Extensive material has been produced by the review petitioners in support of the contention that there is a civil dispute

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RP.No.44 OF 2019 IN WP(C).25953/2018 3

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between the writ petitioner and one Mr.James and

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Jose who are the brother and nephew of the petitioner. It is submitted that the petitioner, along with his wife had filed O.S.No.278 of 2010 before the Munsiff Court, Perumbavoor for permanent prohibitory injunction against the defendants so as to restrain them from trespassing into the plaint scheduled property or from destroying the trees or boundaries of the property or causing any obstruction to the petitioner's residence in the property. It is stated that a counter claim had

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also been filed by the first defendants in the suit. It is stated that in view of the fact that

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the plaintiffs did not adduce any evidence in the suit, the suit was dismissed and the counter claim was allowed. The plaintiffs were restrained from obstructing the first defendant from constructing a

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boundary fence or boundary wall through the northern boundary of the counter claim property

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which is the red line drawn on the southern side of

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the plots 1 and 2 shown in Ext.C1(a) plan.

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RP.No.44 OF 2019 IN WP(C).25953/2018 4

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Ext.C1(a) plan was appended to the decree and formed part of the decree.

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made to measure the property by the Taluk surveyor, it was obstructed by the petitioner's brother who

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was the defendant in the suit on the ground that

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the decree in the civil suit covered the issue and the petitioner cannot stake any claim in excess of what is stated in the said decree.

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A counter affidavit has been placed on

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record by the respondent writ petitioner and it is stated that the right of the land stands settled by the decrees of the Munsiff Court in O.S. 445/99

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and in O.S.278/2010. It is stated that the boundary to the property is to be constructed in accordance with Annexure R1 (a)decree which has become final. It is stated that the petitioner had

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acceded to payment of tax and possession

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certificate in respect of an even lesser extent of land for which he was paying tax as per Ext.P6 and that the existence of the boundary dispute cannot

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RP.No.44 OF 2019 IN WP(C).25953/2018 5

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stand in the way of acceptance of tax and issuance of possession certificate taking note of Ext.P6.

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I have considered the contentions advanced. A

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plain reading of Annexure R1(a) and the decree in

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O.S. 278/2010 of the Munsiff Court, Perumbavoor would make it clear that the petitioner does own and possess properties in survey Nos. 17/7 and 17/8 of the Kodanad Village. The issue apparently is with respect to the extent of the properties and the present situation of the boundary. Ext.P6 would show that the petitioner was in possession and was paying tax in respect of the 80.2 ares of the property, though the petitioner has a consistent case that he has in his possession 90.2 ares of property, the claim was confined to payment of basic tax and issuance of possession certificate in respect of 80.2 ares. I am of the opinion that a dispute with regard to the boundary to the property cannot stand in the way of issuance of the possession certificate in respect of the property to which the petitioner has undisputed title. The

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RP.No.44 OF 2019 IN WP(C).25953/2018 6

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review petitioners, therefore, cannot refuse to

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issue a possession certificate in respect of the

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properties which are in the possession of the writ petitioner. In the above view of the matter, I am of the opinion that the grounds raised in the review petition do not justify the review of the judgment. The review petition is dismissed. It is made clear that appropriate steps shall be taken to issue possession certificate to the writ petitioner for the property covered by Ext.P6 after hearing the petitioner as well as any other claimant in respect of the property. Orders shall be passed within a period of 2 months from the date of receipt of a copy of this order.

Sd/-

ANU SIVARAMAN

JUDGE

RP.No.44 OF 2019 IN WP(C).25953/2018 7

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APPENDIX

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RESPONDENT'S/S EXHIBITS:

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ANNEXURE R3(A) TRUE COPY OF THE TAX RECEIPT DATED 20/12/2018. ANNEXURE R3(B) TRUE COPY OF THE ABOVE COMMUNICATION DATED 03/12/2018. ANNEXURE R3(C) TRUE COPY OF THE LETTER NO.205/2010 DATED 10/12/2018. ANNEXURE R3(D) TRUE COPY OF THE LETTER DATED 10/01/2019. ANNEXURE R3(E) TRUE COPY OF THE RECEIPT. ANNEXURE R3(F) THE LETTER DATED 11/01/2019. ANNEXURE R3(G) THE LETTER DATED 16/01/2019. ANNEXURE R1 A TRUE COPY OF THE COMMISSION REPORT IN OS NO.278/2010 DATED 28/01/2013. ANNEXURE R1 A TRUE COPY OF THE DECREE IN OS NO. 445/1999 DATED 30/08/2005.

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// TRUE COPY // CA TO JUDGE

District Collector, v. Vincent

Case brief

What is this about?

What did the court decide?

District Collector, v. Vincent

Case brief

What is this about?

What did the court decide?

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