IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24-4-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI W.P.No.9650 of 2003 ..... 1. Gnanasoundary 2. Sankar Narayanan 3. Shanti 4. M.Dhandapani (deceased) 5. D.Radha 6. D.Mahesh Kumar (Petitioners 5 and 6 are substituted in the place of 4th petitioner by order dated 22.06.2006 in WPMP.No.12707 of 2006 and the cause title amended as per order of Court dt.11.01.1008 in WPMP.No.1251 of 2007. ... Petitioners vs. 1.The Special Commissioner and Commissioner of Land Administration Chepauk, Chennai 5. 2.The District Collector Chennai District Rajaji Salai, Chennai 1. 3.The Tahsildar Mambalam Guindy Taluk Bharathidasan Colony Road Chennai 78. 4.The Commissioner Corporation of Chennai Chennai 3. 5.Assistant Executive Engineer Tamil Nadu Electricity Board (Distribution) Velachery Chennai 42. https://hcservices.ecourts.gov.in/hcservices/ 6.N.Manoharan 7.R.Srikanth 8.T.A.Alagar 9.S.Maria Augustine 10.Mrs.Christy Maria Bessy 11.Samuvel Koshy 12.G.Thirunavukkarasu 13.J.Gopalakrishnan 14.T.A.Venkatachari 15.S.Palani 16.N.Raghupathy 17.R.Gunasekari 18.Mrs.Radhai 19.Gandhimani 20.N.Anbarasu 21.G.Kamala 22.Mrs.S.Latha Swaminathan 23.P.Vasu 24.P.Shanmugam 25.Mrs.Ramayammal 26.N.Manivannan 27.G.Rajkumar 28.Dr.Peter Sundararaj 29.S.Kumar 30.R.Ramakrishnan 31.Mrs.Hema Balu ... Respondents Writ petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari as stated therein. For petitioners : Mrs.Sujatha Rangarajan For respondents : Mr.N.Senthilkumar Government Advocate for R.1 to R.3 Mr.E.R.K.Moorthy for R.4 Mr.R.Thiagarajan,Sr.Counsel for Mr.T.S.Ramarathnam for R.6 to 16 and R.18 to R.31. Mr.D.Jayasingh for R.17 .. ORDER The writ petition is filed challenging the impugned proceedings of the 1st respondent dated 10.02.2003, in which the revision petition filed by the 6th respondent and others has been allowed by the 1st respondent setting aside the order of the District Collector, Chennai dated 11.05.2002, under which the District Collector has directed the https://hcservices.ecourts.gov.in/hcservices/ Tahsildar to effect change in the patta in favour of the appellants, namely M/s.R.Shanmugam and Dhandapani. 2. Petitioners 1 to 3 are the legal heirs of the said R.Shanmugam. M.Dhandapani, the 4th petitioner died during the pendency of the writ petition and in his place, his legal representatives were impleaded as petitioners 5 and 6. The said Dhandapani, 4th petitioner and Shanmugam, the husband of the 1st petitioner and father of petitioners 2 and 3 were the adjoining owners of land in question and due to their joint development, they have common interest. The petitioners are the owners of the property bearing Survey No.257 of Velachery Village, measuring an extent of 4.20 acres consisting of 52 plots in the approved layout called "Bala Murugan Nagar". Out of the total extent of 4.20 acres, R.Shanmugam was the owner of 2.10 acres situated on the southern portion and 4th petitioner Dhandapani was the owner of the other 2.10 acres situated on the northern portion. The 4th petitioner Dhandapani got this 2.10 acres on the northern portion by a registered partition deed dated 26.9.1969. 2(a). The said Shanmugam and Dhandapani, in order to have joint development of the property, granted registered power in favour of one C.Krishnamoorthy. The 4th petitioner Dhandapani has given the registered power to him by a document dated 19.04.1974 while R.Shanmugam has given power under the document dated 20.02.1974. As per the registered power document, Shanmugam has given power to C.Krishnamoorthy in respect of 1.10 acres out of the total extent of 2.10 acres while Dhandapani gave power to C.Krishnamoorthy in respect of 1.00 acre out of 2.10 acres for the purpose of laying out and formation of plots and to sell the same. 2(b). According to them, the power agent C.Krishnamoorthy has started misusing his power and created fraudulent documents of power of attorney indiscriminately and he has appointed one Ramesh as his power agent by an ante-dated deed of unregistered power dated 05.11.1973 and sold the extent of 2.10 acres as well as other extent of 2.10 acres as unapproved plots to various third parties. It is also stated that the said C.Krishnamoorthy has created various registered power of attorney documents forging the signatures of R.Shanmugam and Dhandapani. The said C.Krishnamoorthy in collusion with Ramesh has sold the entire extent of 4.20 acres in the form of unapproved plots to the public, about which criminal complaints were lodged against them and the criminal court has imposed punishment. 2(c). It is also stated that the said C.Krishnamoorthy and Ramesh have also entered various agreements with other third parties and created equitable mortgage by depositing the title deeds. Again, the said C.Krishnamoorthy appointed one Sekar as his power agent under an unregistered power of attorney dated 20.7.1983 for selling the property. The said Ramesh representing as the irrevocable power of attorney agent of Krishnamoorthy and as owner of the said property entered into an agreement of sale with one Marimuthu Chettiar on 06.10.1982 under a registered document. It is also the case of the 4th https://hcservices.ecourts.gov.in/hcservices/ petitioner that during the time when the criminal case was pending against the said Krishnamoorthy, he obtained an undertaking from M/s.Shanmugam and Dhandapani on 16.7.83, relinquishing their rights in respect of the entire extent of 4.20 acres and all the original title deeds were deposited in Syndicate Bank as collateral security to raise loan for his business. As there was default in payment, the bank filed suit in C.S.1419 of 1983. In the meantime, the said Ramesh who has no authority whatsoever, but only claiming as a power agent of C.Krishnamoorthy, with an undertaking of waiver obtained from the said R.Shanmugam and Dhandapani asserting himself as the owner, executed a sale deed on 22.7.83 in favour of Marimuthu Chettiar, conveying the entire extent of 4.20 acres which was registered as a pending document No.P.423/83 dated 22.7.1983 stated to have been subsequently registered as document No.667/89 dated 5.10.1989 on collection of deficit stamp duty in the office of the Registrar, Madras (North). 2(d). During the time when the registration was pending, the said Marimuthu Chettiar, who purchased the property under the sale deed has appointed his son Balasubramaniam as his power agent and started selling various plots to public. Immediately after the said illegal conduct came to light, the 4th petitioner Dhandapani has filed a suit in the City Civil Court, viz., O.S.5673 of 1983 against the said Ramesh and C.Krishnamoorthy for declaration and injunction and an order of interim injunction was granted in I.A.14788/83 in O.S.No.5673 of 1983 and subsequently the said suit was decreed on 29.2.84. R.Shanmugam has also filed the suit in O.S.5672 of 1983 against the said Ramesh and Krishnamoorthy, wherein also ad-interim injunction was granted and the suit was decreed subsequently on 29.2.84. Therefore, according to the 4th petitioner and Shanmugam, filing of the said suits amount to revocation of the authority given to the said C.Krishnamoorthy and the transactions made by the said C.Krishnamoorthy are illegal and contrary to the provisions of Transfer of Property Act,1882 as well as Section 17 of the Indian Registration Act,1908. 2(e). The purchaser from Ramesh, namely, Marmimuthu Chettiar has not paid the entire sale consideration, but retained a portion of consideration to discharge the debts due to the Syndicate Bank, Kodambakkam branch. The said Marimuthu Chettiar represented by his son Balasubramaniam as his power agent filed O.S.9641 of 1988 in the City Civil Court against the said Krishnamoorthy in which the said Krishnamoorthy has submitted to the decree for declaration that the sale deed dated 22.7.83 obtained by the said Marimuthu Chettiar from C.Ramesh is true, valid and binding on the defendant C.Krishnamoorthy and also supported by valid consideration and the said suit was decreed collusively and the decree was registered in the office of Sub-Registrar in Document No.341/89 dated 15.3.1989. 2(f). According to the petitioners, the said decree was obtained fraudulently against C.Krishnamoorthy, who has never been the owner of the property especially in the circumstances that the power was only in respect of a portion of the property and the said Ramesh has https://hcservices.ecourts.gov.in/hcservices/ obtained power from C.Krishnamoorthy, who himself was having a restricted power from the petitioners and therefore, the entire transaction is void ab initio and such decree is not binding upon the petitioners, who are the real owners of the property. On the date when such transfers were effected, the Civil Court has granted decree in favour of the petitioners' predecessors in O.S.5672 and 5673 of 1983 dated 29.2.84 declaring R.Shanmugam and Dhandapani as real owners and therefore, any subsequent purchasers cannot have any valid title. Further, long before the decree obtained by the said Marimuthu Chettiar in O.S.9641/88, the petitioners have obtained temporary injunction on 23.8.83 itself and therefore, any alienation made during that time becomes invalid, especially when the said interim injunction order has been made absolute on 29.2.84 and when the said Marimuthu Chettiar has started selling the plots to third parties, the 4th petitioner filed O.S.4065 of 1987 for permanent injunction and the civil court has granted decree on 27.9.91. R.Shanmugam has filed O.S.4066 of 1989 for the same relief and decree has been granted on 26.2.91. 2(g). The said Balasubramaniam, son of Marimuthu Chettiar has never cared about such decree or publication of notices and newspaper reports, and the purchasers from the said Balasubramaniam in respect of 52 plots have started an association in the name of Bala Murugan Nagar Welfare Association and filed a suit in O.S.6180 of 1991 against the 4th petitioner and R.Shanmugam as well as C.Krishnamoorthy through its President D.Rajagopalan and that was a suit for permanent injunction and they also filed an interlocutory application for interim injunction and the same was dismissed on 5.2.92 holding that the civil court has already granted a decree in favour of Shanmugam and Dhandapani in O.S.5672/83 and 5673/83 and the petitioners' predecessors are the real owners of the property. The appeal filed by the said Association against the refusal of interim order was also dismissed. Some of the members of the Association are the powerful persons including Government servants, Corporation officials and police officers as well as politically influenced persons and by using their influence they have obtained patta by subdividing the lands. 2(h). When the said M/s.Shanmugam and Dhandapani came to know about such illegal order of granting patta, they have immediately presented petition before the District Collector, who took action and obtained report from the Town Survey Staff and passed orders cancelling the unauthorised sub-division made by his proceedings dated 26.3.99 and directed the Inspector of Town Survey to make necessary entries in the relevant register and such entry has been made by the Inspector of Town Survey, Velachery on 12.4.99. In the meantime, the suit filed by the Association in O.S.6180/91, in which the interim application for injunction was dismissed by the trial Court as well as the appellate Court, was taken up for trial and the Association represented by its President was dragging on the matter by filing various applications which were dismissed and the transfer CMP 14393 of 1998 filed in the High Court was also dismissed. The Association later on filed an application under Order XXIII Rule 3 CPC for https://hcservices.ecourts.gov.in/hcservices/ withdrawal of the suit with liberty to file a fresh suit on the same cause of action. After enquiring the said application in I.A.3285/99 in O.S.6180/91, the 7th Assistant Judge, City Civil Court by order dated 11.3.99 while granting permission to the Association to withdraw the suit, has refused to grant permission to file a fresh suit on the same cause of action. The said order has become final. Therefore, the Association and its members, who claimed to be the subsequent purchasers by illegal documents having legally failed in their efforts to usurp the properties of the petitioners by illegal process, have again approached the Revenue Department for grant of pattas in respect of their plots on the basis of invalid sale deed of Marimuthu Chettiar. 2(i). Even though earlier the Collector has cancelled all those pattas, at the influence of the members of the Association, the subsequent Collector, by misinterpreting the civil court decree has directed the Tahsildar, without giving proper opportunity to the petitioners and their predecessors in title and the Tahsildar has granted patta in favour of 26 respondents, namely respondents 6 to 31 by cancelling the earlier order of the Collector. On the petitioners' predecessors filing an application before the Collector on 22.11.1999, after conducting enquiry, the Collector has passed an order on 11.05.2002 cancelling the illegal sub-divisions effected in the land and the pattas granted by the Tahsildar, Mambalam-Guindy Taluk in his order dated 29.12.2000. 2(j). As against the order of the District Collector dated 11.05.2002, cancelling the sub-division pattas granted by the Tahsildar, respondents 6 to 31 have filed W.P.No.20065 of 2002, which was disposed of at the admission stage, directing them to avail the statutory remedy. It was thereafter, respondents 6 to 31 have filed a revision petition before the first respondent, viz., the Special Commissioner and Commissioner of Land Administration, who, by the impugned order dated 10.02.2003, has set aside the order of the District Collector dated 11.05.2002, upholding the order of Tahsildar dated 29.02.2000, effecting sub-division in the land in Survey No.257, Vellachery and granting pattas to respondents 6 to 31. It is against the said order of the first respondent passed in the revision, the present writ petition is filed by the petitioners. 3. The impugned order is challenged by the petitioners on various grounds, including that the said Marimuthu Chettiar, who is stated to have purchased from Ramesh has no right over the property at all due to various reasons, viz., that C.Krishnamoorthy himself was given power only in respect of a portion of the property to develop the same by M/s.R.Shanmugam and N.Dhandapani and the said power agent C.Krishnamoorthy cannot have any right to give further power to Ramesh and even assuming that such power is given to Ramesh, he cannot be given authorisation in respect of entire extent of property and therefore, the sale of entire extent of property to Balasubramaniam, S/o.Marimuthu Chettiar is not valid in the eye of law and it has to be declared as obtained illegally and therefore, the members of the https://hcservices.ecourts.gov.in/hcservices/ Association, who have stated to have purchased from the Balasubramaniam, S/o.Marimuthu Chettiar cannot have valid right or title over the property at all and on the face of the decree passed by the civil Court, the first respondent should have rejected the revision by confirming the order of the Collector. 3(a). It is stated that the finding of the first respondent in the revision that the power of attorney given by M/s.R.Shanmugam and N.Dhandapani in favour of C.Krishnamoorthy and his credibility have not been questioned in the suit in O.S.No.6180 of 1991, which is totally a misconception of the entire legal proceedings by the first respondent; that the decree in O.S.No.9641 of 1998 has become final and the same has not been set aside in the manner known to law and in such circumstance, the first respondent being the revisional authority, while granting patta, is bound by such decree passed by the competent civil Court; that the first respondent has failed to appreciate that against the criminal conduct of C.Krishnamoorthy and Ramesh many criminal cases have been filed in which punishment has been imposed and that in any event, the first respondent while disposing of the revision ought to have directed the respondents 6 to 31 to approach the Civil Court and obtain necessary orders. 4. In the counter affidavit filed by respondents 6 to 31, it is stated that in the year 1989, the said respondents have decided to purchase the plots and one Marimuthu Chettiar has offered to sell the plots as per the lay-out approved in DTP.221/75 of an extent of 4.20 acres in S.F.No.257 of Velachery Village, Chennai-42. While it is admitted that R.Shanmugam has purchased and became owner of 2.10 acres on the southern side and N.Dhandapani was the owner of other 2.10 acres on the northern side, they have executed four irrevocable power of attorney deeds in respect of 4.20 acres and entrusted physical possession of the entire extent of the property to one C.Krishnamoorthy. It is their further case that the said R.Shanmugam and N.Dhandapani claimed an amount of Rs.42,000/- as price for the entire extent of 4.20 acres. In those circumstance, C.Krishnamoorthy identified one V.Ramesh, Proprietor of Meena Traders as purchaser, through him and a sum of Rs.42,000/- has been paid to M/s.R.Shanmugam and N.Dhandapani in full quit of their entire claim and they have passed a stamped receipt acknowledging the full settlement of the entire sale consideration. 4(a). It is to save the stamp duty, as it is prevalent in the real estate business, the said N.Dhandapani and R.Shanmugam did not execute sale deed in the name of Ramesh. Letters of authorisation enabling Ramesh to deal with the property in his own right as agent coupled with interest was given even without any reference to their power agent C.Krishnamoorthy. They also passed physical possession of the entire extent of 4.20 acres to Ramesh in 1975 itself. The said C.Krishnamoorthy has completed his job of selling the entire property of 4.20 acres in one lot to Ramesh and handed over vacant possession of the entire lands to Ramesh in 1974 itself. Krishnamoorthy in turn requested Ramesh to pay to him Rs.1,36,500/- so that he may return to https://hcservices.ecourts.gov.in/hcservices/ his original business in film line. Ramesh paid that amount to Krishnamoorthy, borrowing the same from Syndicate Bank and since the Syndicate Bank has demanded certain security, three parent documents of Shanmugam and Dhandapani viz., D.No.2367/65, 2366/65, 776/69 were mortgaged with the Syndicate Bank, Saidapet by the said Ramesh. Thereafter, the said Ramesh along with Krishnamoorthy went to Syndicate Bank and paid Rs.8,500/- in full discharge of the above mortgage debt and redeemed all the three parent documents and Krishnamoorthy has surrendered all original documents in respect of the property to Ramesh, including irrevocable power of attorney document granted by Shanmugam and Dhandapani to Krishnamoorthy. 4(b). In addition to that, Krishnamoorthy has also executed power of attorney in favour of Ramesh enabling him to sell independently the property in his own rights as agent coupled with interest and thereafter the said Ramesh has obtained approval for the layout from the Director of Town and Country Planning, Chengleput dated 20.09.1975. Therefore, according to the said respondents, Ramesh has become owner of the entire property in 1975, having redeemed the original documents from Syndicate Bank and the said Shanmugam and Dhandapani have no right over the property. Thereafter, the said Ramesh has agreed to sell 4.20 acres to Marimuthu Chettiar and entered a registered sale agreement under Document No.3355 dated 06.10.1982. 4(c). On 22.07.1983, Ramesh has executed pucca sale deed in favour of Marimuthu Chettiar. In fact the said Krishnamoorthy, who has represented Dhandapani and Shanmugam as power agent has also granted indenture ratifying the sale executed in favour of Marimuthu Chettiar putting Marimuthu Chettiar in physical possession of the property. Ramesh has also handed over the layout plan to the Marimuthu Chettiar and the Marimuthu Chettiar has become owner from 06.10.1982. It is the further case of the respondents that the said Shanmugam and Dhandapani have filed O.S.Nos.5672 and 5673 of 1983 on 25.08.1983, much after the execution of sale deed by Ramesh in favour of Marimuthu Chettiar, which was on 22.07.1983 and Marimuthu Chettiar having been put in possession of the entire property, any order passed and obtained by Shanmugam and Dhandapani after the said date is not binding since by that time the Marimuthu Chettiar has taken possession of the property. It is also their case that the suits filed by Dhandapani and Shanmugam are only against Krishnamoorthy and Ramesh, that too, after Marimuthu Chettiar has become owner under a registered document dated 22.03.1983. 4(d). The said Shanmugam and Dhandapani have no documents with them at all. Even in the suits filed by them they have filed only paper publication, lawyer's notice issued by Ramesh and acknowledgement card. Therefore, according to the respondents, the suits filed by the said Shanmugam and Dhandapani are not binding. Further, the suits filed by Shanmugam and Dhandapani in O.S.Nos.4065 and 4066 of 1989 were against Balasubramaniam, S/o.Marimuthu Chettiar for bare injunction and according to the respondents, the said Balasubramaniam is a stranger and he had nothing to do with the https://hcservices.ecourts.gov.in/hcservices/ properties at S.F.No.257. It is also their case that Shanmugam and Dhandapani are antisocial elements. It is the further case of the respondents that the said Shanmugam and Dhandapani used to create bogus power of attorney in the names of imaginary persons, viz., Appavoo, Mani, Subramani, Ranganayaki, Gopalakrishnan, Moorthy, Janarthanam and so many other persons and thereby made gullible and innocent purchasers to believe the power and purchase the properties. It is their further case that the said Dhandapani and Shanmugam have not filed any substantive suit for declaration from 1979 to 2008. It is also the case of the said respondents that the suit filed by Marimuthu Chettiar viz., O.S.No.9641 of 1988 before the XII Assistant City Civil Judge, Madras was decreed on 30.11.1988 to the effect that the sale deed of Ramesh dated 22.07.1983 in favour of Marimuthu Chettiar and the indenture granted by Krishnamoorthy are perfectly true, valid in law and binding on all concerned in the eye of law. The said decree obtained by the Marimuthu Chettiar has been registered as document No.341 of 1989 on 15.03.1989. 4(e). Marimuthu Chettiar sold the land to the extent of 4.20 acres as 54 plots as approved by DTP between 1989 and 1990. The respondents 6 to 31 have purchased the properties and therefore, the said respondents are the bona fide purchasers. According to them, having purchased the property in 1989-90, they have perfected title by adverse possession. Having been in uninterrupted possession for 18 years, no case has been filed against respondents 6 to 31. When individual patta was granted by the Collector on 01.06.1999, Shanmugam and Dhandapani have objected the same and thereafter the Zonal Tahsildar has conducted enquiry for six months. Considering the counter claim and all documents and after hearing the said Shanmugam and Dhandapani, finally the Tahsildar reported to the Collector that the claim of respondents 6 to 31 is genuine. 4(f). It was, thereafter, the Collector directed the Tahsildar to issue individual patta. Accordingly, the patta was also granted by the Tahsildar on 20.02.2000. It was against the said order, Shanmugam and Dhandapani have filed appeal before the Collector and the Collector without giving opportunity to respondents 6 to 31 and solely on the basis of appeal memo by Shanmugam and Dhandapani itself, passed orders on 11.05.2002, setting aside the order of Tahsildar in granting patta to respondents 6 to 31. It was in those circumstances, after approaching the High Court, as per the direction of the High Court to approach the appropriate authority, respondents 6 to 31 have filed revision before the first respondent and the first respondent having given opportunity to all the parties, in which Shanmugam and Dhandapani have participated actively through their counsel, ultimately passed the impugned order, allowing the revision filed by respondents 6 to 31 setting aside the order of the Collector, directing the Tahsildar to issue patta. 5. Mrs.Sujatha Rangarajan, learned counsel for the petitioners contended that inasmuch as M/s.Shanmugam and Dhandapani have granted power to C.Krishnamoorthy only in respect of 1.10 acres and 1.00 acre https://hcservices.ecourts.gov.in/hcservices/ respectively, authorising him to layout and sell the plots, the said Krishnamoorthy cannot have any right to sub-delegate his powers to another person including Ramesh. Her further contention is that while C.Krishnamoorthy has authorised Ramesh, it can never be expected that Ramesh would have more right than the power agent Krishnamoorthy had and therefore, the alleged sale stated to have been made by Ramesh to Marimuthu Chettiar in respect of the entire extent of 4.20 acres has to be declared as nullity. According to her, the sale of various plots, numbering 52 in the name of "Bala Murugan Nagar" by the son of Marimuthu Chettiar cannot have any legal sanction and the revenue authorities should have considered the same. 5(a). It is her further submission that any sale which has been effected has no validity when the interim injunction in the suits filed by