IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11.08.2011 CORAM THE HON'BLE MR.JUSTICE ELIPE DHARMA RAO & THE HON'BLE MR.JUSTICE M.VENUGOPAL W.A.No.553 of 2009 and M.P.No.1 of 2009 1.C.Sabesan Chettiar (Deceased) 2.C.T.Saraswathi Achi 3.Rathna Sabesan 4.Dr.S.Parameswaran 5.Dr.S.Priyadharsani .. Appellants/ LRs of the 4th Respondent (Appellants 2 to 5 substituted as LRs of the deceased sole appellant vide order of court dated 21.10.2010 made in M.P.No. 1/2010 in W.A.No.553/2009) Vs. 1.The District Revenue Officer Coimbatore District Coimbatore 2.The Revenue Divisional Officer Coimbatore 3.The Tahsildar North Taluk, Coimbatore 4.R.Padmanabhan .. Respondents / Respondents 1 to 3 and Petitioner Prayer: Writ Appeal filed against the order dated 20.04.2009 in W.P.No.17340 of 2008 passed by the Learned Single Judge. presented under Article 226 of the Constitution of India to issue a writ of certiorari calling for the records relating to the order passed by the first respondent in Na.Ka.No.39268/2007/E2 dated 14.07.2008 quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Appellant : Mr.B.Harikrishnan For R1 to R3 : Mrs.V.Raniselvam, A.G.P. For Respondent 4 : Mr.S.Thangasivam JUDGMENT (Judgment of the Court was delivered by Justice M.Venugopal) This instant Writ Appeal has been projected by the First Appellant/4th Respondent (Deceased) as against the order dated 20.04.2009 passed by the Learned Single Judge in W.P.No.17340 of 2008. Subsequent to the death of the First Appellant on 03.08.2010 (during the pendency of the Appeal), his Legal Representatives have been brought on record as Appellants 2 to 5 in the Writ Appeal. 2. The Learned Single Judge, while passing the order dated 20.04.2009 in W.P.No.17340/2008 filed by the Fourth Respondent, has, among other things, observed that, "In this writ petition, this court is not deciding the question of title of the above said property. But it was called upon to examine the legality of the impugned order passed by the first respondent. Therefore, the said decisions are not applicable to the facts of this case. It is trite law the special machinery provided under the relevant Act is only to decide the nature and character of the land for the purpose of assigning patta and if it is a matter relating to adjudication of title, it has no jurisdiction to decide the same and can direct the parties to approach the competent civil forum." Also, the Learned Single Judge while coming to the conclusion has opined that there is a dispute with regard to the title of the lands measuring 7.18 acres in S.F.Nos.547 and 548 at Kalapatti Village, Coimbatore District and held that it can be adjudicated only by a competent Civil Forum and it is open to the Petitioner and the Fourth Respondent to workout their remedies before the competent Civil Forum in accordance with law. 3.It is the contention of the Learned Counsel for the Appellants that the Learned Single Judge failed to appreciate the purpose and import of G.O.Ms.No.385, Revenue Department, dated 17.08.2004 in regard to UDR changes conferring powers only upon the District Revenue Officer to correct any wrong entry in the Revenue Up-Dating Register and the First Respondent, having found that the Fourth Respondent's name has been wrongly entered in the Revenue Records, rightly ordered removal of the Fourth Respondent's name from the Revenue Records in respect of the lands situated in S.F.Nos.547 and 548, measuring an extent of 7 acres and https://hcservices.ecourts.gov.in/hcservices/ 18 cents. Therefore, the Learned Counsel for the Appellants submits that the First Respondent's order is in conformity with G.O.Ms.No.385, Revenue dated 17.08.2004, besides the same being a well-reasoned one. 4.The Learned Counsel for the Appellant urges before this Court that the Learned Single Judge had erred in holding that the First Respondent / District Revenue Officer had decided the title and also committed an error in coming to the conclusion that the First Respondent ought to have directed the parties to seek appropriate relief from the Civil Court in view of the rival claims made by the parties. 5.It is the specific contention of the Learned Counsel for the Appellants that the Learned Single Judge had failed to appreciate that the First Respondent /District Revenue Officer, found that the Fourth Respondent's name was wrongly entered in the Revenue Records and without any basis, had ordered the removal of his name from the records and further directed the Tahsildar to conduct a detailed enquiry for effecting transfer of patta. 6.According to the Learned Counsel for the Appellants, the Learned Single Judge had not chosen to fully deal with G.O.Ms.No.385, Revenue Department, dated 17.08.2004, which relates to UDR changes. 7.The Learned Counsel for the Appellants submits that G.O.Ms.No.385, Revenue dated 17.08.2004, inter alia, provides that if the land owners' names have been wrongly included in the Land Development Scheme, the District Revenue Officer has the power to conduct an enquiry and to issue orders and that the Learned Single Judge had ignored the tenor and spirit of G.O.Ms.No.385, Revenue Department, dated 17.08.2004. 8.The Learned Counsel for the Appellants projects a plea that the Learned Single Judge was carried away by Rule 4(4) of the Tamil Nadu Patta Pass Book Rules and according to the Learned Single Judge, the First Respondent / District Revenue Officer had wrongly decided the title to the property and he ought to have directed the parties to approach the Civil Court in terms of Rule 4 of the Tamil Nadu Patta Pass Book Rules. 9.The Learned Counsel for the Appellants strenuously contends that the said Rule is applicable only to the proceedings for patta transfer before the Third Respondent / Tahsildar and the Learned Single Judge was not correct in directing the Third Respondent / Tahsildar to initiate a detailed enquiry in connection with patta transfer. https://hcservices.ecourts.gov.in/hcservices/ 10.According to the Learned Counsel for the Appellants, when the Fourth Respondent was exposed before the First Respondent as regards the title to the property, he had desperately raised the plea of Adverse possession. 11.The stand of the Appellants is that the judgment in O.S.No.287/1966 passed by the Learned Sub-Judge, Coimbatore, clearly refers to the fact that the Fourth Respondent's predecessors do not have any title in respect of the land in question and only the Deceased / First Appellant's predecessors have title in respect of the land in question. But this aspect of the matter was not adverted to by the Learned Single Judge in a proper and real perspective, which has resulted in miscarriage of justice. 12.The Learned Counsel for the Appellants drew the attention of this court to the fact that the Fourth Respondent received compensation from the Government when a portion of his land was acquired by the Airport Authority of India and in view of the rival claims made by the parties, the compensation amount was deposited before the Sub-Court, Coimbatore and though these facts were projected in the counter affidavit filed in W.P.No.17340/2008, they were totally not considered by the Learned Single Judge. 13.The pith and substance of the plea projected on the side of the Appellants is that, the Learned Single Judge had committed an error in holding that the First Respondent / District Revenue Officer had decided with regard to the title but merely ordered removal of the Fourth Respondent's name from the Revenue Records and ordered status-quo ante. 14.Lastly, it is the submission of the Learned Counsel for the Appellants that the Learned Single Judge ought not to have interfered with the First Respondent's order especially when the Fourth Respondent / Writ Petitioner had not challenged the same as per law. 15.According to the Fourth Respondent/Writ Petitioner, he is the owner of 7.18 acres of lands in S.F.Nos.547 and 548 situated at Kalapatti Village, Coimbatore District. The said lands were purchased by him from Ganesa Gounder and K.R.Palaniswamy by means of a registered Sale Deed dated 07.02.1975 (Document No.317/1975 on the file of the Sub-Registrar, Coimbatore). The lands situated in S.F.Nos.547 and 548 originally comprised of a total extent of 27.36 acres, out of which, an extent of 3.59 acres of lands were sold by one Periakkal W/o.Ramanna Gounder in favour of Arunachala Chettiar and Kumarasamy Chettiar by means of a registered Sale Deed bearing Document No.945/1933. The remaining extent of lands measuring https://hcservices.ecourts.gov.in/hcservices/ 3.59 acres were sold by Karuppa Gounder, Peria Gounder and Chinna Karuppa Gounder in favour of Rayappa Gounder by way of registered Sale Deeds bearing Document Nos.3090 and 3091/1935. 16.In the Writ Petition, the Fourth Respondent/Writ Petitioner had averred that Arunachala Chettiar and Kumarasamy Chettiar sold the said lands in favour of Rayappa Gounder as per Sale Deed bearing Document No.2902/1935 and consequently the said Rayappa Gounder became the owner of the entire extent of 7.18 acres in S.F.Nos.547 and 548, Kalapatti Village and he was in possession and enjoyment of the same. After the death of Rayappa Gounder, his Widow executed a Deed of Release releasing her right over the property in favour of their sons viz., Ganesa Gounder and Palanisamy Gounder. The Fourth Respondent/Writ Petitioner purchased the said extent of land as per the Sale Deed dated 07.02.1975. The Fourth Respondent/Writ petitioner had stated that, he got his name included in the Revenue Records and was paying the Statutory levies. He also developed the said lands as house sites and also got lay-out approval from the Town Planning Authority vide DTCP No.LP/R(CN) No.463181 dated 30.12.1981. As pet the planning permission, he gifted the common utility areas and road portion to Kalapatti Town Panchayat vide Gift Deed Nos.4583/82, 4595/82 and 4613/82 and the same were accepted by the Local Body by way of Letter of Acceptance dated 19.10.1983. After developing the lands as house sites, the Fourth Respondent/Writ Petitioner sold some portion of the lands to various third parties. The Deceased Appellant/Fourth Respondent submitted a petition dated 28.03.2007 to the Revenue Divisional Officer praying to include his name in the Revenue Records in regard to the lands comprised in S.F.Nos.547 and 548 measuring 7.18 acres and owned by the Writ Petitioner. In the said petition, the Deceased Appellant/Fourth Respondent in the Writ Petition had made a mention that one Venkita Subba Iyer purchased the said property in the Court Auction Sale, which took place on 11.07.1938 and that, he in turn, executed a Deed of Release dated 27.04.1940 in favour of Kumarappa Chettiar viz., the Grandfather of the Deceased Appellant/Fourth Respondent and that he was the descendant of the said Kumarappa Chettiar. 17.The Fourth Respondent/Writ Petitioner received a notice of hearing relating to the enquiry from the District Revenue Officer based on the petition submitted by the Deceased Appellant/Fourth Respondent. He submitted his objections, inter alia, mentioning that the First Respondent/District Revenue Officer had no jurisdiction to decide the issue with regard to title. Touching upon the merits of the matter, he submitted that an extent of 74 cents of land out of 7.18 acres was acquired by the Government of Tamil Nadu under the Land Acquisition Act (Central Act) for the https://hcservices.ecourts.gov.in/hcservices/ purpose of construction of Runway for Coimbatore Airport. An Award was also passed in the said Land Acquisition Proceedings and the Fourth Respondent/Writ Petitioner received compensation in regard to the land acquired. 18.The Fourth Respondent/Writ Petitioner had alleged in the Writ Petition that he was in possession and enjoyment of the lands right from 1975 and he also developed the same as house sites and thereafter sold the same to third parties, after giving some portion of lands in favour of the Local Body for public purposes. Since he had received compensation from the Government for the lands acquired from him, it is not open to the Deceased Appellant/Fourth Respondent to contend that he was possessing title to the property and therefore his name should be included in the UDR Records. 19.It is the case of the Fourth Respondent /Writ Petitioner that since the issues raised by the Deceased Appellant/Fourth Respondent involved adjudication of disputed questions of fact, the District Revenue Officer ought to have directed him to work out his remedy before a competent Civil Forum. 20.The Deceased Appellant/Fourth Respondent had taken a stand in his counter affidavit that the lands in question originally belonged to Ramanna Gounder, he having got the same as per the Partition Deed dated 07.09.1916. The said Ramanna Gounder executed a Mortgage Deed in respect of the said agricultural lands in favour of Muthalagan Chettiar and he filed a suit in O.S.No.1655/1926 for recovery of the mortgage debt. The suit was decreed and the said lands were brought to sale by way of Public Auction. In the Court Auction Sale, one Venkita Subba Iyer purchased the lands on 11.07.1938, which was confirmed on 12.08.1938 and the Sale Certificate was also registered. 21.The said Venkita Subba Iyer executed a Release Deed dated 27.04.1940 pertaining to the said lands in favour of Kumarappa Chettiar. Thereafter, Muthalagan Chettiar and his sons viz., Kumarappa Chettiar, Annamalai Chettiar and Chidambaram Chettiar effected partition among themselves by means of a registered partition, in which, the said agricultural lands were allotted commonly to them. In respect of the agricultural lands comprised in S.F.Nos.547 and 548, which are the subject matter of dispute, the Writ Petitioner played mischief and by suppressing the facts, filed representation and managed to include his name in the UDR Records. Therefore, the Deceased Appellant/Fourth Respondent in the Writ Petition submitted a representation dated 28.03.2007 to the Tahsildar, Coimbatore, to remove the Writ Petitioner's name and to include his name in the UDR Records. https://hcservices.ecourts.gov.in/hcservices/ 22.According to the Deceased Appellant/Fourth Respondent, as per G.O.Ms.No.385, Revenue Department dated 17.08.2004, the District Revenue Officer is the Competent Authority to conduct an enquiry relating to rectification of defects in the UDR Records and his representation was forwarded to the District Revenue Officer, who, after calling for reports from the Second Respondent / Revenue Divisional Officer and the Third Respondent / Tahsildar and after conducting a full-fledged enquiry, passed the impugned order. Moreover, in O.S.No.287/1966 filed by Subbaiya Naidu against the Writ Pettiioner's predecessors in title viz., Ganesa Gounder and K.R.Palanisamy, findings were recorded that the Writ Petitioner's predecessors had not acquired title over the lands in S.F.Nos.547 and 548. As such, according to the Deceased Appellant/Fourth Respondent, the impugned order passed by the District Revenue Officer is in order and no interference is called for at the hands of this Court exercising jurisdiction under Article 226 of the Constitution of India. 23.The Learned Counsel for the Appellants submitted that Section 10 of the Tamil Nadu Patta Pass Book Act, 1983 speaks about modification of entries in the patta pass book and Rule 4 of the Tamil Nadu Patta Pass Book Rules, 1987, deals with the procedure on receipt of application or information and as per Rule 4(4) of the said Rule, "in the event of Tahsildar being satisfied that a dispute concerning ownership of patta is already pending in a Court or issues are raised before him which impinge on personal laws or laws of succession and all the parties interested do not agree on the ownership in writing, he shall direct the concerned parties to obtain a ruling on ownership from a competent Civil Court having jurisdiction before changing the entries already recorded and existing in the various revenue records". Hence, if the District Revenue Officer wants to exercise his jurisdiction either under Section 13 or in terms of G.O.Ms.No.385, Revenue Department, dated 17.08.2004, he should follow the above said procedure as he was exercising the jurisdiction of Original Authority. 24.At this stage, it is not out of place for this Court to make a mention that as per G.O.Ms.No.409, Revenue SSI (2) Department, dated 02.07.2008, the power of second revision vested with the Special Commissioner and Commissioner of Land Administration regarding transfer of registry cases in terms of R.s.O.31.8(A) was withdrawn and he was directed to return the papers with a direction to the parties to approach the competent Court of Law, except in respect of on going enquiries. The Officer of the Principal Secretary and Commissioner of Land Administration Reforms, Chennai, in turn, issued a Circular dated 14.07.2008 to https://hcservices.ecourts.gov.in/hcservices/ the Collectors and District Revenue Officers, clarifying that only in respect of Appeal / Revision filed under transfer of registry under Revenue Standing Order 31 can be returned to the parties to approach the competent Court of Law in terms of G.O.Ms.No.409, Revenue SSI (2) Department, dated 02.07.2008 and in respect of other cases, the second revision lies with the Special Commissioner and Commissioner of Land Administration as existing now. The said Government Order as well as the Circular point out that in respect of transfer of registry cases, the second Revision shall not lie with the Special Commissioner and Commissioner of Land Administration and except on going enquiries, other papers may be returned back to the parties with a direction to approach the competent Court of Law. 25.The main thrust of the argument projected by the Learned Counsel for the Appellants is that, in O.S.No.287/1966 filed by K.Subbaiya Naidu against Ganasa Gounder and K.R.Palaniswami for recovery of a sum of Rs.7,633.12, the Plaintiff contended that the Defendants, by means of an Agreement of Sale dated 04.07.1965, agreed to convey an extent of 20.44 acres of dry .lands in Kalapatti Village for a consideration of Rs.6,000/- per acre, free from all encumbrances and on a perusal of the Encumbrance Certificate, the Plaintiff found that the lands in S.F.Nos.547 and 548 were treated by Kumarappa Chettiar and two others as their own and they also effected partition by means of a registered Partition Deed dated 10.07.1959 and the above said extent of land measuring 7.18 acres, form a major portion of the properties agreed to be purchased. Since the Defendants had not acquired title, the Plaintiff in that suit wanted the advance amount to be paid to him. In the said suit, the First Defendant projected a Written Statement taking a plea that the Defendants were in continuous possession and enjoyment of the lands in S.F.Nos.547 and 548 and they were ready and willing to perform their part of the obligation. 26.The Learned Sub Judge, Coimbatore, after contest, found that the Defendants therein had dealt with the property and since the lands were included in the said Partition Deed, it cannot be said that the Defendants therein had acquired title. In regard to the offer of the Defendants to execute the Sale Deed in respect of the remaining extent, the Court found that the Plaintiff cannot be compelled to take the Sale Deed for a lesser extent. Ultimately, the Learned Sub Judge found that the Defendants were not in a position to execute the Sale Deed free of encumbrance and therefore, ordered refund of the advance amount. Notwithstanding the fact that the findings in O.S.No.287/1966 would reveal that the predecessors in title of the Fourth Respondent/Writ Petitioner having acquired title, the fact is that the Deceased Appellant/Fourth Respondent in the Writ Petition was claiming to be https://hcservices.ecourts.gov.in/hcservices/ one of the Legal Representatives of one of the original owners of the lands, who was one of the parties to the Deed of Partition dated 10.07.1959. The petition dated 28.03.2007 submitted by the Deceased Appellant/Fourth Respondent in the Writ Petition to the Revenue Divisional Officer, Coimbatore, is devoid of any material particulars. 27.The Fourth Respondent/Writ Petitioner projected his objections and also took a plea that the issue before the First Respondent / District Revenue Officer related to title and therefore he had no jurisdiction to decide the same. After the purchase made by the Fourth Respondent/Writ Petitioner on 07.02.1975, he had dealt with the lands as his own and a portion of the land was also acquired for the purpose of run-way for Coimbatore Airport and he had also received the compensation amount. He also formed a lay-out in respect of the remaining extent of land after acquisition and secured approval from the Directorate of Town and Country Planning. It is not in dispute that he gifted some portion of the lands towards Open Area Reservation and the Local Body viz., Kalapatti Town Panchayat also accepted the same. A perusal of the judgment in O.S.No.287/1966 reveals that the Fourth Respondent/Writ Petitioner's predecessors in title were in possession and enjoyment of the property and thereafter, he was in possession and enjoyment of the same, right from the date of purchase viz., 07.02.1975. 28.In view of the foregoing narrations, it is clear that there is a dispute regarding the title of the Fourth Respondent/Writ Petitioner as well as the Deceased Appellant/Fourth Respondent pertaining to 7.18 acres of land in S.F.Nos.547 and 548, Kalapatti Village, Coimbatore District. The District Revenue Officer / First Respondent, relying upon the reports of the Second Respondent / Revenue Divisional Officer and Third Respondent / Tahsildar, who are his Officers, ordered deletion of the Fourth Respondent/Writ Petitioner's name from the UDR Records and to include the name of the Deceased Appellant / Fourth Respondent's predecessors in title viz., R.Karuppa Gounder and N.Karuppa Gounder. 29.As per Section 4 of the Tamil Nadu Patta Pass-Book Act, 1986 (4 of (1986), the entries in the Patta Pass-book and the certified copies of entries in the Patta Pass-book shall be presumed to be true and correct, until the contrary is proved or a new entry is lawfully substituted therefor. As a matter of fact, Section 6 of the Act envisages that the entries in the Patta Pass- book issued by the Tahsildar as per Section 3 shall be prima facie evidence of title of the person, in whose name the Patta Pass-book has been issued to the parcels of land entered in the Patta Pass- book, free of any prior encumbrance, unless otherwise specified https://hcservices.ecourts.gov.in/hcservices/ therein. However, the Patta Pass-book being a prima facie evidence is a rebuttable presumption in law, as opined by this Court. 30.From a reading of Rule 4(4) of the Tamil Nadu Patta Pass Book Rules, it is clear that if the Tahsildar is satisfied that a dispute concerning ownership of patta is already pending in a Court or issues are raised before him which impinge on personal laws or laws of succession and all the parties interested do not agree on the ownership in writing, he shall direct the concerned parties to obtain a ruling on ownership from a competent Civil Court having jurisdiction before changing the entries already recorded and existing in the various Revenue Records. The Learned Single Judge, in paragraph No.19 of the order, had specifically held that in terms of Sub-Rule (4) of Rule 4, the First Respondent / District Revenue Officer ought to have directed the parties to go before the competent Civil Forum for adjudication of dispute with regard to the ownership, as the Fourth Respondent/Writ Petitioner and the Deceased Appellant / Fourth Respondent disputes the version projected by each one of them. 31.At this juncture, we deem it appropriate to quote the decision of this Court in Samsuddin Rowther and another V. Avvammal and others [(1992) 2 M.L.J. 252 at page 260], wherein, in paragraph 33, it is observed as follows: "33.Thus it is seen that the patta passbook is only providing prima facie evidence and it is rebuttable. The Proviso to Sec. 14 of this Act enables an aggrieved person to file a suit. In the present case, these proceedings are already pending in which the question of title is canvassed. The patta-passbook issued during the pendency of these proceedings will not conclude the question. Whoever wins in these proceedings ultimately, is entitled to get the entry in the patta passbook rectified in accordance with the decision. There is no substance in the argument that the only remedy of the defendants is only to file a fresh suit against the plaintiffs for declaration of their title under the Specific Relief Act. Learned counsel submits that the burden is placed squarely on the defendants by this Act and it is for them to establish their title by so independent proceeding. I do not agree. Evidence has been let in by both the parties in the present proceedings and the question of title was already in issue. Hence, there is no necessity for the defendants to https://hcservices.ecourts.gov.in/hcservices/ file a