IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.08.2010 Coram: THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI W.P. Nos.18488, 19511 and 19512 of 2009 and M.P. Nos.1+2+2+2 of 2009 J.Maradee Free Trade Zone Private Ltd., Represented by Director, Mr.Sunil Rallan, No.8, Karpura Street, Periamet, Chennai-3. .. Petitioner in WP.18488/09 Mr.Gajendira Naicker, S/o.late Govinda Naicker .. Petitioner in WP.19511/09 Smt.Yasodha, w/o.Mani .. Petitioner in WP.19512/09 Vs. 1.The Tahsildar, Office of Tahsildar, Sriperumbadur Taluk, Sriperumbadur, Kacnheepuram District. 2.The Revenue Divisional Officer, Office of the RDO Kancheepuram Kancheepuram, Kancheepuram District. 3.Sr.Munusamy Naicker, S/o.Appadurai Naicker .. Respondents in all WPs. Common Prayer in all WPs : Writ Petitions are filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorari to call for the records of the first respondent in Na.Ka.No.624/08-A1 dated 31.08.2009 and quash the same. For Petitioner in WP.18488/09 : Mr.K.Kuppusamy https://hcservices.ecourts.gov.in/hcservices/ in WP.19511 & 19512/09 : Mr.K.Balaji For R 1 & 2 : Mr.V.Viswanathan Addl. Govt. Pleader. For R3 : Mr.H.Karthik Seshadri for M/s.Iyer & Thomas COMMON ORDER All three writ petitions are filed to set aside the order of the first respondent dated 31.08.2009 in and under which he has ordered transfer of patta in respect of survey numbers in question. 2. As all the three writ petitions are against the same order and are for identical relief, though based on slightly different set of facts, all the three writ petitions are being disposed of by common order. 3. The brief facts relevant herein are set out as follows: (i) The petitioners in all the three writ petitions claim to be the purchasers of different extent of land in different survey numbers purchased either from the 3rd respondent or from the co-owners of the lands in question as per the registered sale deeds particulars of which are furnished in the writ petition affidavits. (ii) The 3rd respondent in all the three writ petitions Munusamy Naicker filed suit for partition in O.S.No.14 of 1991 on the file of Sub Judge, Tiruvallur against Adhilakshsmiammal and others for partition and separate possession of his half share, in 7 items of land more fully described in the suit schedule. The suit was decreed ex-parte on 21.02.1992 and the plaintiff/3rd respondent herein filed final decree petition for effecting division of properties by metes and bounds as per the preliminary decree and pending final decree petition, the 3rd respondent filed I.A.No.407 of 2001 for amending the suit schedule by including 31 more items of lands along with the properties which are already the subject matter of the suit. (iii) Thereafter, by order dated 15.07.2004, Advocate Commissioner is appointed for dividing the 16 items of property in respect of which final decree is passed and Advocate Commissioner filed his report based on which final decree was passed allotting 16 items out of 38 items of suit schedule properties towards the share of the 3rd respondent. The 3rd respondent was on the strength of final decree dated 27.09.2005 filed E.P.No.32 of 2008 on the file of court of District Munsif Court, Sriperambudur for recovery of vacant possession the said 16 items. The petitioners herein intervened in the execution proceedings by way of applications filed under Order.21, Rule.99 C.P.C in their capacity as third party objectors https://hcservices.ecourts.gov.in/hcservices/ and they have also filed separate suits individually. While the petitioner in WP.No.18488 of 2009 filed O.S.No.19 of 10 along with IA.50 of 2010 pending on the the file of District Court, Kancheepuram, the other two petitioners have filed O.S.No.207 of 2008 & 208 of 2008 on the file of District Munsif, Sriperumbudur for declaring their title and interest in respect of the properties purchased by them which are covered under the partition decree pending delivery of possession in EP.32 of 2008. The executing court is however reported to have disposed of EP.32 of 2008 on 08.07.2009 thereby directing delivery of possession of the properties to the 3rd respondent through process of court on 8.7.2009. 4. In the meanwhile, the 3rd respondent Munusamy has during the pendency of EP approached the 1st respondent for mutation of patta entry in his name in respect of 16 items of land which are the subject matter of preliminary and final decree for partition and EP.32 of 2008. Though, the patta in respect of those lands are on the date of the petition filed by the 3rd respondent standing in the name of the petitioners herein and few others, the first respondent has not chosen to issue notice to the current pattadars. The 1st respondent did not issue notice to the current patta holders to have their say in this regard mainly on the ground that they are not parties to the suit. But the 1st respondent sought legal advice from the Additional Government Pleader attached to Sub Court, Kancheepuram and has mainly on the basis of the legal advice so obtained from the Additional Government Pleader, passed the order on 09.05.2008, that the 3rd respondent Munusamy is entitled to get patta transferred in his name on the basis of preliminary decree made in his suit, thereby directing transfer of patta in the name of the 3rd respondent Munusamy. The same was by way of statutory appeal challenged before Revenue Divisional Officer, Kancheepuram who is the second respondent herein. Pending appeal the 2nd respondent has in his proceedings Na.Ka.1628/2008 dated 24.05.2008, directed the 1st respondent original authority to stop implementing his order dated 09.05.2008 and further directed him to hold fresh enquiry by giving due opportunity to all the current patta holders for being personally heard and to send his final report. 5. Thereafter, the 1st respondent has sent his report on 26.2.09 along with his letter No.Na.Ka.4624/2008 to the second respondent. The second respondent/Revenue Divisional Officer on receipt of such report has in his proceedings No.1628/2008-A2 dt. Nil July 2009 directed the 1st respondent to hold fresh enquiry and to decide the issue in the light of the order dated 08.07.2009 made in EP in OS.14 of 1991 passed by the District Munsif, Sriperumbudur. Thereafter, the 1st respondent issued notice to all the parties concerned to appear before him on the hearing date along with their objections. While according to the petitioner in W.P.No.18488 of 2009, he appeared before the 1st respondent through his representative and recorded his objections but he was not called for further hearing https://hcservices.ecourts.gov.in/hcservices/ other two writ petitioners say that they are not at all given any notice for the enquiry before the first respondent. But the first respondent proceeded with the enquiry and passed the impugned order thereby directing transfer of patta in the name of 3rd respondent/Munusasmy Naicker in respect of the lands which are the subject matter of EP.No.32 of 1998 subject to condition that transfer of patta in the name of 3rd respondent Munusamy is subject to the outcome of the suits filed by Tmt.Yasodha and Thiru.Gajendran resulting in cancellation of the same in the event of any adverse order passed against him in O.S.Nos.207 of 2008 and 208 of 2008 filed by Tmt.Yasodha and Thiru.Gajendran. The correctness of such order is now challenged before this court in all these three writ petitions. 6. The main grievance raised by the petitioners in all the three writ petitions is that the impugned orders are totally illegal, erroneous and contrary to legal dictum and are legally and factully sustainable. Per contra, the impugned order is sought to be defended by the official as well as individual respondents mainly on the strength of the order passed in EP.No.32 of 2008. It is further sought to be supported by saying that the transfer of patta is effected subject to the result of the civil suits and the right of parties are ultimately to be established before the Civil forum and the transfer of patta hence causes no prejudice to any of the parties. 7. Heard the rival submission made on both sides and perused all the material records available herein. 8. The fact that the writ petitioners herein have purchased different extent in different survey number either from the 3rd respondent or from other parties to partition suit or from their decedents through registered sale deeds is not denied. It is not in dispute that in pursuance of the sale transactions the patta in respect of the properties in question are obtained in the name of the petitioners, the 3rd respondent and others in respect of the lands situated in different extent and different survey numbers. The particulars of the patta number, the survey numbers covered under the patta number and the name of the patta holders in respect of 16 items which are the subject matter of the partition suit and EP, are also referred to in the orders of the respondents 1 and 2 dated 09.05.2008 and dated 31.08.2009 impugned herein respectively. Thus the 3rd respondent/Munusamy approached the first respondent not for getting fresh patta in respect of the properties but for transferring the patta standing in the name of 3rd parties three among whom are the petitioners herein. 9. However, the first respondent has on both occasions did not give adequate opportunity to the current patta holders for being personally heard before altering the patta entry by cancelling the name of the current patta holders and by entering the patta in the name of 3rd respondent Munusamy. The 1st respondent has passed the https://hcservices.ecourts.gov.in/hcservices/ order of transfer of patta on 09.05.2008 during the pendency of EP in O.S.No.14/1991 on the basis of the legal advise given by Additional Government Advocate attached to Sub Court, Kancheepuram. It is not known as to under what provision of law such legal advice was sought for and on what authority it was so given by the Additional Government Advocate. The fact remains undisputed, is that the 1st respondent on earlier occasion passed the order solely on the basis of the civil court decree passed in favour of the 3rd respondent Munusamy that too during the pendency of EP and on the basis of the legal advice given by the Additional Government Advocate to the effect that not withstanding the pendency of EP patta can be transferred on the basis of partition decree. However, as directed by the 2nd respondent the order is not given effect to and the 1st respondent was again directed to deal with the matter afresh after examining the current patta holders. However, the 1st respondent has once again repeated the same error by not giving due notice and due opportunity to the current patta holders and has passed the conditional transfer of patta in the name of the petitioner Munusamy in spite of the pendency of the suits O.S.Nos.207 of 2008 and 208 of 2008. 10. The main grievance expressed by the petitioners herein is that when the revenue records do stand in the name of the petitioners that too on the strength of the registered sale deeds executed in their favour, by the parties to the litigation including the 3rd respondent Munusamy, the 1st respondent should have given adequate opportunity to the petitioners for being personally heard before passing the impugned order and the 1st respondent deliberately did not do so despite the specific direction given by the 2nd respondent who is his appellate authority during the pendency of appeal against the original order of the 1st respondent. He has thus failed to comply with the direction of our High Court deliberately, it is also seriously argued by the learned counsel for the petitioners that when the patta did stand in the name of the petitioners and when the parties are seriously agitating their rights before the Civil Court by intervening themselves in the execution proceeding and by filing independent suits for declaring their right title and interest in respect of the properties in question the 1st respondent ought not to have ordered for the change of patta entry in favour of the 3rd respondent Munusamy and ought to have without altering the patta entry directed him to approach the authorities concerned for similar relief subject to the outcome of the execution applications and civil suits filed by the petitioners herein. This court finds much force in such contention so raised on the side of the petitioners. 11. As already referred to the revenue records were on the date when the 3rd respondent Munusamy approached the 1st respondent for mutation, standing in the name of the present petitioners and few others and it continue to remain so till the impugned order is passed. The petitioners have been to the knowledge of the revenue https://hcservices.ecourts.gov.in/hcservices/ authorities including the Tahsildar, concerned seriously agitating their rights before the civil forum. That being so, the relevant entry in the revenue records should have been allowed to remain so till the question of title decided by the proper civil forum. 12. Our High Court has in the earlier Judgment reported in 1995 (1) MLJ 426 in Kuppuswami Nainar Vs. The District revenue officer, Thiruvannamalai; and 2004 (1) CTC 136 in Chockkappan and 2 others V. State of TN has clearly held that the party concerned should have been directed to work out their remedy in the cviil court and then to approach the revenue authorities. In the earlier 1995 1MLJ judgment, the Division Bench of our High Court, while upholding the rejection of the petition filed for grant of patta by the petitioner therein observed that ultimately it is the Civil court which has to adjudicate the question as to whether the person claiming patta is the patta holder of the land in question or not and it does not matter for this court to decide as to whether A party or B party goes to civil court and in the event of any suit for declaration of title and for appropriate consequential relief being filed the civil court shall decide such suit and subject to the finding of the same the parties to litigation shall approach the authorities for change of patta. 13. Following the same observation our High Court has disposed of another case reported in 2004 1 CTC. The order challenged before our High Court was for inclusion of the name of the party therein without affording any opportunity to the current pattadars. Our High Court is pleased to hold that such order passed for joint patta without directing the applicant therein to establish her title before the Civil Court cannot be sustained and is pleased to allow the writ petition. This case stands on better footing wherein the 1st respondent has by the order impugned herein cancelled the name of the petitioners and transferred the patta in the name of the 3rd respondent Munusamy which is worser than the order impugned in the case reported in 2004 1 CTC. The 1st respondent has further erred in passing conditional order by transferring the patta in the name of the 3rd respondent Munusamy subject to the out come of the suits filed by the petitioners herein. Viewing from any angle the order of the 1st respondent suffers from serious irregularity and illegality and warrants interference. 14. It is now brought to the notice of this court that the patta entry in respect of the lands in question covered in WP.No.18488/2009 is in view of the interim stay of operation of the first respondent's order granted by this court restored in the name of the petitioner and such alteration shall continue to be in force. 15. In the result, the writ petitions are allowed, by setting aside the impugned order dated 31.08.2009 passed by the 1st respondent, with liberty given to the parties to establish their https://hcservices.ecourts.gov.in/hcservices/ rights in the ciivl suits and thereafter subject to the outcome of the Civil suits approach the revenue authorities for appropriate alteration/modification of revenue records. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsh To 1.The Tahsildar, Office of Tahsildar, Sriperumbadur Taluk, Sriperumbadur, Kacnheepuram District. 2.The Revenue Divisional Officer, Office of the RDO Kancheepuram Kancheepuram, Kancheepuram District. 2 cc To Mr.K.Balaji, Advocate, SR.58661,58662 1 cc To Mr.K.Kuppusamy, Advocate, SR.58558 3 cc To Mr..H.Karthik Seshadri, Advocate, SR.58627 1 cc To The Government Pleader, SR.58807 WP.Nos.18488, 19511 and 19512 of 2009 gsv(co) pmk.20.9.2010 https://hcservices.ecourts.gov.in/hcservices/