IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 11TH FEBRUARY 2009 / 22ND MAGHA 1930 WP(C).No. 1523 of 2005(F) ------------------------------------- PETITIONER(S): ------------------------ P.K.KARUNAKARAN NAIR, S/O.ANANDAN NAIR, AGED 83 YEARS, NO OCCUPATION, RESIDING AT PRASANTHI SADAN, KODIYERI AMSOM, MOOZHIKKARA DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADVS. MR.R.SURENDRAN SMT.P.GOPIKA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, KANNUR DISTRICT, COLLECTORATE, KANNUR. 3. THE ASSISTANT COLLECTOR, OFFICE OF THE SUB COLLECTOR, THALASSERY, KANNUR DISTRICT. 4. THE TAHSILDAR, TALUK OFFICE, THALASSERYF, KANNUR DISTRICT. 5. THE VILLAGE OFFICER, THIRUVANGAD VILLAGE, THALASSERY, KANNUR DISTRICT. 6. D.PRADEEP KUMAR, S/O.LATE DEVADAS PAI, AGED 40 YEARS, GANESH ENGINEERING INDUSTRIES, CHIRRAKKARA, RESIDING AT `MANGAL DEEP', P.O.CHIRAKKARA, THALASSERY-4, THALASSERY TALUK, KANNUR DISTRICT. ADV. MR.K.V.SOHAN FOR R6 & R7 GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARDON 11/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1523/2005 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE PURCHASE CERTIFICATE BEARING NO.2646/79 DT. 15.3.79. P2:- COPY OF THE DELIVERY ACCOUNT DT. 15.12.93 IN EP. NO.431/1993 ON THE FILE OF SUB COURT, THALASSERY. P3:- COPY OF THE ORDER IN IA. NO.1438/93 DT. 9.4.99. P4:- COPY OF THE CERTIFICATE DT. 2.5.98 ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD. P5:- COPY OF THE DOCUMENT NO.2707/93 OF S.R.O. THALASSERY DT. 6.12.93. P6:- COPY OF THE JUDGMENT IN CRP. NO.579/97 BEFORE THE HONOURABLE HIGH COURT OF KERALA REPORTED IN 1998 (2) KLT 927. P7:- COPY OF THE PETITION DT. 6.3.2000 FILED BY THE SEVENTH RESPONDENT BEFORE THE 4TH RESPONDENT. P8:- COPY OF THE ORDER IN REF. E1-24313/98 DT. 26.8.2000 PASSED BY THE 4TH RESPONDENT. P9:- COPY OF THE JUDGMENT IN OP. NO.270-67/2000, DT. 30.10.01 ON THE FILE OF THE HONOURABLE HIGH COURT OF KERALA. P10:- COPY OF THE MEMORANDUM OF APPEAL DT. 27.11.01 FILED BEFORE THE 3RD RESPONDENT. P11:- COPY OF THE ORDER PASSED BY THE 3RD RESPONDENT IN REF. D.9894/01 DT. 23.4.02. P12:- COPY OF THE MEMORANDUM OF REVISION PETITION DT. 13.5.02 FILED BEFORE THE 2ND RESPONDENT. P13:- COPY OF THE ORDER IN K.D. 16107/02/L4 DT. 18.11.04 PASSED BY THE 2ND RESPONDENT. P14:- COPY OF THE SURVVEY PLAN WITH RESPECT TO THE PROPERTY SITUATED IN R.S. NO.6/1 OF THIRUVANGAD AMSOM VAYALALAM DESOM DT. 17.12.98. P15:- COPY OF THE SURVEY PLAN WITH RESPECT TO THE PROPERTY SITUATED IN R.S. NO.6/4 OF THIRUVANGAD AMSOM VAYALALAM DESOM DT. 17.12.98. P16(a):- COPY OF THE BASIC TAX RECEIPT DT. 14.3.89 ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 88-89. P16(b):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 88-89.. W.P.(C) NO.1523/2005 P16(b):- COPY OF THE BASIC TAX RECEIPTS ISUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 89-90. P16(c):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 90-91. P16(d):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 1991-92. P16(e):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 92-93. P16(f):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 93-94. P16(g):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 95-96. P16(h):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 96-97. P16(i):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 1997-98. P16(j):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 98-99. P16(k):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 99-2000. P16(l):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 04-05. P16(m):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 05-06. P16(n):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 06-07. P16(o):- COPY OF THE BASIC TAX RECEIPTS ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD VILLAGE FOR THE PERIOD 07-08. P17:- COPY OF THE EXTRACT OF THE A-REGISTER OF R.S. NO.6/4 OF THIRUVANGAD VILLAGE. W.P.(C) NO.1523/2005 P18:- COPY OF THE CERTIFIED COPY OF THE DOCUMENT NO.2452/07 OF SRO, THALASSERY DT. 22.12.07. P19:- COPY OF THE DOCUMENT NO.1/07 OF SRO THALASSERY , DT. 1.1.67 EXECUTED BY MADHAVI AND HER CHILDREN IN FAVOUR OF THE PETITIONER. P20:- COPY OF THE ADANGAL REGISTER DT. 5.11.08 ISSUED FROM THE VILLAGE OFFICE IN RESPECT OF THE PROPERTY SOLD IN AUCTION. RESPONDENT'S EXHIBITS R6(a):- COPY OF THE AFFIDAVIT FILED BY THE PETITIONER KARUNAKARAN NAIR BEFORE THE SPECIAL TAHSILDAR, LAND TRIBUNAL NI.III IN O.A. 10875/1976, DT. NIL. R6(b):- COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER BEFORE THE LAND TRIBUNAL IN O.A. 10875/1976, DT. 15.2.79. R6(c):- COPY OF THE ORDER PASSED IN OA. 10875/1976 DT. 15.3.79. R6(d):- COPY OF THE COMBINED FIELD MAP WITH RESPECT TO THE SURVEY NOS. 6/1, 6/2, 6/3 AND 6/4. R6(e):- COPY OF THE ADANGAL EXTRACT SOWING THE SUBDIVISION PROPERTY. R6(f):- COPY OF THE LETTER ISSUED BY THE DISTRICT COLLECTOR, KANNUR, DT. 15.11.08. R7(a):- COPY OF THE COMBINED SUB DIVISION PLAN OF THE ORIGINAL R.S. 6/1. R7(b):- COPY OF THE RE-SETTLEMENT REGISTER ISSUED BY THE VILLAGE OFFICER, THIRUVANGAD. /TRUE COPY/ P.A. TO JUDGE tss P.N.RAVINDRAN, J. ====================================== W.P.(C)No.1523 of 2005 ====================================== Dated this the 11th day of February 2009 JUDGMENT In this Writ Petition the petitioner challenges Ext.P8 order dated 26.8.2000 passed by the Tahsildar, Thalassery Taluk under the Transfer of Registry Rules, 1966, Ext.P11 appellate order passed by the Assistant Collector, Thalassery on appeal and Ext.P12 order passed by the District Collector, Kannur on revision. The brief facts of the case are as follows: 2. The petitioner was surety to a loan availed by his son from the State Bank of Travancore. He had mortgaged a parcel of land, 2.65 acres in extent situated in R.Sy.No.8/1 (old Sy.No.4/4A3) of Thiruvangad Village, Thalassery Taluk as security for the loan by deposit of title deeds. When the petitioner's son defaulted repayment of the loan, the bank instituted O.S.No.91 of 1981 in the Court of the Subordinate Judge, Thalassery. The suit was decreed and in execution of the decree, the mortgaged property was brought to sale, sold in public auction and purchased by the sixth respondent to whom it was delivered over on 15.12.1993. Ext.P2, delivery account discloses that 2.65 acres of land situated in R.Sy.No.8/1 (Old Sy.No.4/4A3) was delivered over to the sixth respondent on 15.12.1993. 3. It appears that a dispute arose between the petitioner and the sixth respondent regarding title to and possession over the W.P.(C)No.1523 of 2005 2 lands described in Ext.P2. The sixth respondent thereupon instituted O.S.No.499 of 1993 in the Court of the Subordinate Judge of Thalassery for declaration of his title and possession over 2.65 acres of land situated in R.Sy.No.6/4 of Thiruvangad Village in Thalassery Taluk. Later he filed I.A.No.1438 of 1993 for permission to withdraw the suit reserving liberty with him to file a fresh suit incorporating further and better particulars. By Ext.P3 order passed on 9.4.1999, the Court of the Subordinate Judge permitted the sixth respondent to withdraw the suit, but did not grant him permission to file a fresh suit. The sixth respondent thereupon filed C.R.P.No.1415 of 1999 in this Court challenging Ext.P3. It is now brought to my notice that by order passed on 12.1.2009 this Court has set aside Ext.P3 order to the extent it declined to grant leave to the sixth respondent to institute a fresh suit in respect of the same subject matter. In view of the order passed by this Court in C.R.P.No.1415 of 1999, the sixth respondent can institute a fresh suit, if he so chooses to establish his rights over the disputed lands. 4. The sixth respondent had after Ext.P3 order was passed, moved the Tahsildar, Thalassery Taluk under the Transfer of Registry Rules, 1966 to receive the land tax in respect of 2.65 acres of land situated in R.Sy.No.6/4 of Thiruvangad Village. By Ext.P8 order passed on 26.8.2000, after notice to and affording W.P.(C)No.1523 of 2005 3 the petitioner an opportunity of being heard, the Tahsildar granted the said request. That order was confirmed by the appellate and revisional authorities in Exts.P11 and P12. In this Writ Petition the petitioner challenges Exts.P8, P11 and P12 orders and prays for a direction to the fifth respondent to continue to receive tax from him in relation to 2.75 acres of land situated in R.Sy.No.6/4 of Thiruvangad Village. 4. The sixth respondent has entered appearance and filed a counter affidavit resisting the Writ Petition. I have heard Sri.R.Surendran, the learned counsel appearing for the petitioner, Sri.K.V.Sohan, the learned counsel appearing for the sixth respondent and Sri.P.K.Ravikrishnan, the learned Government Pleader appearing for the official respondents. From the pleadings and the materials on record, it is evident that what the petitioner claims is title to and possession over the very same parcel of land which the sixth respondent claims was purchased by him in court auction and delivered over to him under Ext.P2 delivery account on 15.12.1993. The question that really arises is whether the land over which the petitioner claims title and possession is the very same parcel of land which the sixth respondent claims, was delivered over to him by the Amin as per Ext.P2 delivery account. In other words, the dispute is regarding the identity of the lands which the sixth respondent obtained in court auction. Though the W.P.(C)No.1523 of 2005 4 revenue authorities, namely, the Tahsildar, the Assistant Collector and the District Collector have accepted the sixth respondent's contention that the lands purchased by him in the court auction are really situated in R.Sy.No.6/4 of Thiruvangad Village, the petitioner disputes the said fact. Rule-16 of the Transfer of Registry Rules states that the enquiry and decision under the said rules is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decision in the transfer of registry cases. Rule-16 further stipulates that the question of legal rights is always subject to adjudication by the civil courts and that pattas will be revised from time to time in accordance with judicial decisions. 5. In the light of Rule 16, it is evident that the orders impugned in this Writ Petition can operate only subject to the decision of the competent civil court. Rule 16, in my opinion, confers on the petitioner the right to file a suit and seek a declaration of his rights over the parcel of land over which he claims title and possession. If the petitioner succeeds in the suit, the orders impugned in the Writ Petition will cease to have any force and will have to be modified accordingly. Therefore, in my opinion, the remedy of the petitioner lies in instituting a civil suit, to establish his right, title and interest over the lands described in this Writ Petition. W.P.(C)No.1523 of 2005 5 In the result, leaving open the contentions of the petitioner and the sixth respondent, I dismiss the Writ Petition reserving liberty with them to move the competent civil court seeking appropriate reliefs. I make it clear that I have not expressed any opinion on the merits of the rival contentions and that the civil court, if moved by either of the parties, will be free to arrive at its own conclusion based on the materials on record. I also clarify that payment of land tax either by the petitioner or by the sixth respondent in respect of the lands situated in R.Sy.No.6/4 of Thiruvangad Village in Thalassery Taluk, Kannur District, will be subject to the decision to be taken by the competent civil court. P.N.RAVINDRAN, JUDGE css/