Allowed

Kanagaraj Samuvel v. the District Registrar

Madras HC5 Sept 2014WP(MD)/11242/2014

Case brief

AI extract

What is this about?

The Madras High Court allowed two clubbed writ petitions involving complex fraud where a person with no title to property created collusive sale deeds and powers of attorney. The Court quashed the registered documents, directed their removal from encumbrance records, and relied on prior civil court decrees confirming the petitioner's title.

What did the court decide?

The impugned registered documents were quashed and the second respondent was directed to remove them from encumbrance certificate entries.

Kanagaraj Samuvel Vs the District Registrar — Property and Title | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05.09.2014 CORAM

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THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM

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W.P(MD)Nos.11242 of 2014 and 1897 of 2014 and MP(MD).No.2 of 2014 in WP(MD).No.1897/14 and MP(MD).Nos.1 & 2/14 in WP(MD).No.11242/14

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Kanagaraj Samuel ... Petitioner in both petitions

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Vs.

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1.The District Registrar (Admin) Collectorate Campus Kokkirakulam, Palayamkottai Tirunelveli District.

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2.The Sub Registrar, Kovilpatti, Tuticorin District.

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3.P.Marimuthu

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4.P.K.Velladurai ... Respondents (in both petitions)

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Prayer in WP(MD).No.11242/14: - Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the order of the 1^st respondent in Na.Ka.No.1454/A2/2013 dated 05.03.2014 and quash the same and consequently, direct the respondents 1 and 2 to cancel the sale deed in Doc.No.1783 of 1999 on the file of the 2^nd respondent dated 19.05.1999 and the power of attorney in Doc. No.1148 of 2010 on the file of the 2^nd respondent dated 13.08.2010.

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Prayer in W.P.(MD) No.1897: - Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the order of the 2^nd respondent dated 11.06.2013 and quash the same and consequently direct the respondents 1 and 2 to cancel the sale deed in Doc.No.1783 of 1999 on the file of the 2^nd respondent dated 19.05.1999 and the power of attorney in Doc.no.1148 of 2010 on the file of the 2^nd respondent dated 13.08.2010.

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For Petitioner : Mr.C.K.M.Appaji For respondents : Mr.K.Guru for R1 & R2 Addl Government Pleader

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https://hcservices.ecourts.gov.in/hcservices/ Respondents 3 & 4 : No Appearance

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ORDER

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The petitioner in both the writ petitions is one Kanagaraj Samuel and the issue involved is related to the same property and therefore, both the writ petitions were clubbed together, heard and disposed of by this common order.

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Though notices have been served on the private respondents and their names are printed in the cause list, none appears for the private respondents.

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Heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondents 1 and 2.

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The prayer in W.P.(MD) No.11242 of 2014 is for issuance of a writ of Certiorarified Mandamus to call for the records and to quash the order passed by the first respondent dated 05.03.2014 and to cancel the document namely, the sale deed bearing Doc.No.1148 of 2010 on the file of the 2^nd respondent dated 13.08.2010.

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The prayer in W.P.(MD) No.1897 of 2014 is for issuance of a writ of Certiorarified Mandamus to call for the records to quash the order passed by the second respondent dated 11.06.2013.

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By both the impugned orders, the petitioner's request to cancel those registered instruments was not accepted and the petitioner was directed to obtain appropriate orders from the competent Court of law. In the normal circumstances, this Court under Article 226 of the Constitution of India will not adjudicate into the issue pertaining to cancellation of registered instruments and would relegate the matter to the concerned District Registrar to enquire into the case by invoking the power under Circular 67. It is to be pointed out that the Circular No.67 has been upheld as per the order of this Court in Ramasamy Vs. State of Tamil Nadu reported in 2014(4) CTC 627 .

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However, in the instant case, the facts are complex and startling, which requires interference by the Court. From the facts, it is clear that fraud has been perpetuated by the father of the third respondent by creating documents in favour of his son/the third respondent. The third respondent, who in turn, has created another document in favour of the 4^th respondent, who is said to be their relative. This Court would support its conclusion with the following reasons:

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(i) The property in question was subject matter of civil litigation in O.S.No.136 of 1981 on the file of the District Munsif Court, Kovilpatti. The petitioner was the fourth plaintiff in the suit and three other plaintiffs were Tmt. Kamala Rajendran Moses, C.J.Paul, Thiru.C.Asirvatham. There were four defendants in the suit and the father of the third respondent was the third defendant in the suit. Apart from the father of the third respondent, the other defendants are Ranjitham Ammal, Baskaran, John Rajasingh, Gnanabai Jawahar, defendants 1,2, 4 and 5 respectively. The suit was for declaration of title and permanent injunction and the trial Court after full fledged trial decreed the suit by judgment and decree dated 18.11.1982. https://hcservices.ecourts.gov.in/hcservices/

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(ii) As against the said decree, the defendants 1 to 3 alone preferred appeal, i.e., Ranjitham ammal, Baskaran and Piramu Thevar (father of the third respondent) in A.S.No.40 of 1983 on the file of the Sub Court, Tuticorin. During the pendency of the appeal before the lower appellate Court, Ranjitham ammal died. Therefore, the appeal was contested by the father of the third respondent and other appellant Baskaran. The appeal was dismissed by the judgment and decree dated 24.08.1987. Thereafter, no second appeal has been preferred and the judgment attained finality. In the interregnum, transaction was done by the third respondent's father by mutating the registered document No.1783/1999 registered on the file of the second respondent. The petitioner objected to the same and approached the revenue authorities stating that the patta has been illegally mutated and that the civil Court has already held in favour of the petitioner and the father of the third respondent has absolutely no right, title or interest over the said property.

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(iii).Though an application was given by the petitioner before the revenue officials, namely, Tahsildar, Kovilpatti, no action was taken. Therefore, the petitioner filed a writ petition before this Court in W.P. (MD) No.3520 of 2009 to direct the Tahsildar, Kovilpatti, to consider the representations dated 23.09.2005, 05.12.2008 and 05.01.2009. This Court by order dated 14.08.2009 disposed the said writ petition, with a direction to the Tahsildar to consider the representation. Thereupon, an order was passed cancelling the patta granted in favour of the third respondent's father. An appeal filed by him also dismissed confirmed in revision. Challenging the order passed by the Special Commissioner and Commissioner of Land Administration, Chennai, the father of the third respondent filed a writ petition before this Court in W.P.(MD) No.9516 of 2006. This Court, after hearing the parties including the petitioner herein, who was the 5^th respondent in the writ petition, by order dated 16.09.2009 dismissed the writ petition. The order reads as follows:

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“The petitioner has filed this writ petition challenging the order passed by the first respondent dated 07.07.2005. By the said order, the first respondent has rejected the revision petition filed by the petitioner by stating the following reasons:-

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“The written arguments of both sides and connected records have been verified. Prior to inclusion the name of Baskaran in the patta bythe Zonal Deputy Tahsildar, Koilpatti, there was serious civil litigation between the revision petitioner Thiru Piramuthu Theevar and the respondent Thiru Kanagaraj Samuel over the land under dispute. Thiru Kanagaraj Samuel (Respondent) filed a suit in O.S.No.136/81 on the file of District Munsif Court, Koilpatti for title declaration and permanent injunction against Thiru Piramuthu Thevar (Revision petitioner) and others. The documents furnished by both sides before the Civil Court are one and the same. After examining documents and witnesses, the Civil Court in a detailed judgment dated 18.11.1982 in O.S.No.136/81 https://hcservices.ecourts.gov.in/hcservices/ decided title in favour of Thiru Kanagaraj Samuel and granted permanent injunction against

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the Revision petitioner and his Principal Thiru Baskaran. In the decree of the suit O.S.No.136/81, the description of the property has been clearly given. When it was taken in appeal by Thiru Piramuthu Thevar to Sub-Court, Thoothukudi in A.S.No.40/83, the Appellate Court

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by its Judgment dated 24.08.87 confirmed the order of the Trial Court and dismissed the appeal. It is evident from the Taluk file that the Zonal Deputy Tahsildar withoug enquiring the other pattadars included the name of Baskaran in the patta and T.S.L.R., by his DTR 1018/93-94, dated 27.09.94. Since the matter was decided by this Civil Courts in the year 1987 itself, this sort of orders passed by the Zonal Deputy Tahsildar has only paved way for such vexatious petitions. The Revenue Divisional Officer and District Revenue Officer have set aside the Zonal Deputy Tahsildar's order in conformity with the decisions of the Civil Courts.”

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A counter affidavit has been filed by the fifth respondent stataing that the Survey No.514/2B-1A2 is also included in the second schedule property and the suit came to be decreed including the said property and the appeal filed by the petitioner in A.S.No.40 of 1983 on the file of the Sub Court, Tuticorin was also dismissed on 24.08.1987.

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The Hon'ble Division Bench of this Court in Kuppuswami Nainar v. The District Revenue Officer and others reported in 1995 (1) MLJ 426, has held that the finding on title rendered by a civil court is binding upon the revenue authorities. In view of the same, I find that the reasons assigned in the impugned order is correct and it does not call for any interference.

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The Writ petition is dismissed. Consequently connected Miscellaneous Petition is closed. No costs.”

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Thus, the third respondent's father had absolutely no right over the property. The revenue records, which were mutated by him during the pendency of the civil proceedings, were also set aside and his challenge to those proceedings, attained finality. Therefore, the father of the third respondent had no legal right, title or interest over the property in question. After the conclusion of all these proceedings, the third respondent's father had executed power of attorney in favour of the third respondent. The third respondent, who has now executed a power of attorney in favour of the 4^th respondent, who is said to be the close relative of the third respondent. When the third respondent's father himself do not have any right over the property, the sale deed executed in favour of his son, i.e. the third respondent was a collusive transaction and an illegal transaction and conveyed right, title or interest to the third respondent.

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In such circumstances, the third respondent could not have https://hcservices.ecourts.gov.in/hcservices/ executed a power of attorney in favour of the 4^th respondent. Therefore, the entire transaction done by the third respondent's father, the third

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respondent as well as the fourth respondent deserves to be set aside, as being illegal and without sanction of law. Accordingly, the writ petitions are allowed and the impugned registered documents are quashed and the second respondent is directed to remove those documents from the entries in the encumbrance certificate and other records maintained by the Sub Registrar. No costs. Consequently connected Miscellaneous Petitions are closed.

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Sd/Assistant Registrar(Per.Admn)

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\True copy\

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Sub Assistant Registrar

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