R.U.Krishnaraj Vs The District Revenue Officer cum

PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records relating to the impugned order of the first respondent in Na.Ka.No.36617/2024/D4 dated 02.07.2024 quash the same and consequently, direct the first respondent herein and restore the patta in the name of grandfather of petitioner P.N.V.Ramasamy Gowder, in respect of Survey Nos.197/1, 199, 200/1, K.Pudupatti village, Uthamapalayam Taluk, Theni District.

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For Petitioner : Mr.K.K.Senthilvelan Senior Counsel for Mr. V.S. Kumara Guru

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For Respondents : Mr.K.Balasubramani

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Special Government Pleader for R1 to R3 Mr.G.Prabhurajadurai for M/s.Ajmal Associates for R4 to R15

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O R D E R

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The petitioner traces title over lands in survey Nos.197/1, 199 and 200/1 ad measuring about 3.22 acres from his late grandfather, P.N.V. Ramaswamy Gounder. The private respondents herein, or their predecessors, had filed O.S.No.240 of 2011 before the District Munsif Court seeking a permanent injunction to restrain the defendants therein from interfering with their peaceful possession and enjoyment of the suit schedule property. Such suit was dismissed by judgment and decree dated 08.03.2018, which was subsequently affirmed by judgment and decree dated 15.12.2023 in A.S.No.21 of 2018. The petitioner's father and brother had filed W.P.(MD) No.17900 of 2018 seeking a grant of separate patta. The said Writ Petition was disposed of by an order dated 15.07.2019 directing the petitioners therein to approach the competent civil court. The petitioner's father and brother thereafter filed O.S.No.104 of 2021 seeking a declaration of title. The said suit was dismissed for non-prosecution and has not been restored as on date.

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Meanwhile, the petitioner requested for mutation of the patta in

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his name. The revision petition relating thereto was considered and rejected by the District Revenue Officer by order dated 02.07.2024, which is impugned herein.

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The contentions of learned Senior Counsel for the petitioner

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may be summarised as follows:

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(i) The conclusion of the District Revenue Officer that the petitioner should approach the jurisdictional civil court is unsustainable because the petitioner's title through his grandfather was decided in favour of the petitioner by judgment and decree dated 08.03.2018 in O.S.No.240 of 2011. The title of the petitioner's grandfather was further affirmed by judgment and decree in A.S.No.21 of 2018.

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(ii)Because the title of the petitioner had been previously decided, any subsequent suit relating to title would be barred by res judicata. In support of the proposition that title may be decided even in a suit for injunction, the judgments of the Hon'ble Supreme Court in Sulochanamma vs. Narayan Nair reported in (1994) 2 SCC 14 , particularly paragraph 9 thereof, and the judgment in Annaimuthu

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Thevar (dead) by legal representatives vs. Alagammal and others reported in (2005) 6 SCC 202 , particularly paragraphs Nos.30 to 34 were relied upon.

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(iii)As regards the order dated 15.07.2019 in W.P.(MD) No. 17990 of 2018, the said order was issued without noticing that title had been decided in the above mentioned original suit. In fact, the judgment and decree of the first appeal was subsequent to the order in the Writ Petition.

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(iv)The private respondents rely on an unregistered partnership deed and have not cited any other documents to establish their title.

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Learned Special Government Pleader submitted as follows in

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reply:

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(i) The petitioner's father had filed W.P.(MD) No.21110 of 2017 seeking a survey of the lands forming subject of this Writ Petition and withdrew the said Writ Petition.

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(ii)The petitioner has repeatedly requested for mutation of patta without obtaining a declaration of title from the civil court. Therefore, no interference is warranted with the impugned order.

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The contentions of learned counsel for respondents 4 to 15 may

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be summarised as under:

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(i) The petitioner's grandfather acknowledged and recognised that the property belongs to the partnership firm. This is clear from the sale deed dated 14.05.1979 in favour of Kalathiinathan, which was attested by the petitioner's grandfather.

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(ii) In the family partition deed, the petitioner's grandfather referred to the 1/7 share in the property, thereby, acknowledging that it was the property of the partnership firm.

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(iii)The petitioner cannot resile from the position that title had not been declared by a competent civil court after having filed a civil suit for declaration, which was dismissed for non-prosecution. The only recourse available to the petitioner in this situation is to take necessary steps to restore the said suit.

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On the basis of the rival contentions, the question that arises for

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consideration is whether interference is warranted with the conclusion of the District Revenue Officer that the petitioner should approach the

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competent civil court. On perusal of the judgment and decree in O.S.No. 240 of 2011, it is evident that the said suit was filed for the relief of permanent injunction. It is also evident that the suit was dismissed on the ground that the partnership was unregistered. As contended by learned Senior Counsel for the petitioner, upon considering the evidence recorded in the said suit, there are observations with regard to title. Subsequent to the judgment and decree in the suit, the petitioner had filed W.P.(MD) No.17990 of 2018 before this Court. The said Writ Petition was disposed of by refusing to issue any directions for the grant of separate patta after observing that title to the relevant property had not been decided and that it is open to the petitioners therein to approach the jurisdictional civil court to establish title. The admitted position is that this order was not challenged by the petitioner herein or by the father and brother of the petitioner.

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As noticed earlier, learned Senior Counsel had relied on the judgments of the Hon'ble Supreme Court in Sulochana Amma (cited supra) and Annaimuthu Thevar (cited supra) to contend that title may be decided in a suit for injunction. On perusal of paragraph 9 of the

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judgment in Sulochana Amma (cited supra), it follows that if title was directly and substantially in issue, even if decided in a suit for injunction, it would operate as res judicata . Whether the observations in the judgment and decree in O.S.No.240 of 2011 were made in a suit where title was directly and substantially in issue is contentious. In this case, by an order subsequent to the judgment and decree, this Court concluded that title is required to be decided in a suit for declaration and the said order has not been challenged till date. Learned counsel for the private respondents has also placed on record documents indicating that the property was recognised by the petitioner's grandfather as the property of the partnership firm. In these proceedings, it is neither necessary nor appropriate to record any findings in relation to title. Nonetheless, sufficient doubt has been raised justifying reference to a competent civil court.

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For the reasons aforesaid, I find no infirmity in the impugned

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order directing the petitioner to approach the jurisdictional civil court. It is needless to say that it will be open to the petitioner to contend in such civil suit that res judicata or issue estoppel operates in favour of the

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petitioner by virtue of the judgment and decree in O.S.No.240 of 2011 and judgment and decree in A.S.No.21 of 2018. It will equally be open to the private respondents to refute such contention.

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