IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 OP.No. 18392 of 2002(M) ----------------------- PETITIONER: --------------- MOHAMMED HASSAN, S/O.KUTTIYAN (LATE), `THAHA MANZIL', KARUVANTHURUTHI, KOZHIKODE DIST. BY ADV. MR. BABU S. NAIR MR. JIJO PAUL RESPONDENTS: --------------- 1. THE DISTRICT COLLECTOR, MALAPPURAM. 2. THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA, MALAPPURAM DISTRICT. 3. THE TAHSILDAR, ERNAD, MALAPPURAM DISTRICT. 4. THE VILLAGE OFFICER, VAZHAYOOR VILLAGE, MALAPPURAM DISTRICT. 5. ABDUL MAJEED, S/O.MOIDEENKUTTY HAJI, KANNAMANGALAM, MALAPPURAM DISTRICT. 6. MOIDEEN KOYA, S/O.BICHU MOIDEEN KUTTY, CHALIYAM,KOZHIKODE DIST. 7. SASIKUMAR, S/O.BAGYACHANDRAN ERADI, VAZHAYOOR, MALAPPURAM DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER MR. T. K. ARAVINDAKUMAR BABU R5 MR. E.NARAYANAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO. 18392 OF 2002 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : TRUE COPY OF THE ASSIGNMENT DEED NO. 1255/1999 OF THE SUB REGISTRY, KONDOTTY. EXT. P2 : TRUE COPY OF THE ASSIGNMENT DEED NO. 3220/2000 OF THE SUB REGISTRY, KONDOTTY EXT. P3 : TRUE COPY OF THE JUDGMENT DATED 13.09.2001 IN O.S. NO. 23/1997 OF THE SUBORDINATE JUDGE'S COURT, TIRUR. EXT. P4 : TRUE COPY OF THE REPORT SUBMITTED BY THE TAHSILDAR ERNAD DATED 11.04.2002 EXT. P5 : TRUE COPY OF THE ORDER NO. B 7 10002/2002 OF THE DISTRICT COLLECTOR DATED 29.04.2002 EXT. P6 : TRUE COPY OF THE ORDER IN C.M.P. NO. 21680 OF 2002 IN O.P. NO. 12780 OF 2002 DATED 10.05.2002 OF THIS HON'BLE COURT /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O.P No. 18392 of 2002 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 27th May , 2011 JUDGMENT The petitioner challenges Ext. P5 order passed by the District Collector, whereby the respondents 5 to 7 have been permitted to remit the basic tax and to enjoy the property in question, for the reason that, the concerned property, to the extent as claimed herein, actually belongs to the petitioner. 2. The sequence of events as narrated in the Writ Petition shows that, the property comprised in Resurvey No. 154/14 of Vazhayoor Village having an extent of 1 acre came to the hands of the petitioner by virtue of two separate assignment deeds, copies of which have been produced and marked as Exts. P1 and P2. The vendors of the said property derived the same by virtue of partition deed No. 1323 / 1979 of the same Sub Registry and ever since the execution of the sale deeds, the petitioner was enjoying the property with absolute ownership, exclusive possession and clear and marketable title. O.P. No. 18392 of 2002 : 2 : 3. It is the contention of the petitioner that, after the purchase of the property as above, the petitioner has ascertained the flow of title and perused the back records. It was revealed that the 7th respondent herein, along with some others had filed a Civil Suit before the Sub Court, Tirur as O.S. 23 of 1997 against the persons from whom the petitioner had purchased the property. The said suit for permanent prohibitory injunction was in fact dismissed with cost on 13.09.2001, as borne by Ext. P3 judgment, which according to the petitioner has become final. It is without any regard to the actual facts and figures, that the concerned respondent approached the District Collector seeking for permission to pay the land tax for a large extent of 10 acres, allegedly after creating some documents. On receipt of the application, the Deputy Tahasildar, with the help of the concerned Village Officer, made enquiries and found that the 5th respondent or such other respondents did have absolutely no right over the property which they were claiming and reported that the property in question (10 acres as claimed by the 5th respondent) was in the possession and ownership of other persons including the writ petitioner. In spite of the report submitted by the Deputy Tahasildar, the Tahasildar took a contrary stand and filed a different report to the District Collector as per Ext. P4 O.P. No. 18392 of 2002 : 3 : dated 11.04.2002 recommending the eligibility of the 5th respondent to pay the tax and it was accordingly, that Ext. P5 order was passed by the District Collector on 29.04.2002, which is impugned in this writ petition. 4. Many a ground has been raised in the writ petition, factual as well as legal. Despite completion of service of notice, the respondents 5 to 7 have not chosen to appear or contest the matter. During the course of hearing, it is brought to the notice of this Court that some other similarly situated persons like the petitioner had challenged the order passed by the District Collector by filing O.P. Nos. 12780 and 14280 of 2002. The said original petitions were finally heard and disposed of as per judgment dated 06.04.2006, whereby it was held that the District Collector ought not to have passed the impugned order touching the ownership of land, more so when the Civil Suits bearing Nos. O.S. No. 182 of 2001 and 44 of 2002 (filed by the concerned parties) before the Munsiff's Court, Parappanangadi were pending. It was made clear that, any order with regard to the acceptance of the tax should be passed, if required, only after the civil cases were finally disposed of and that both the petitioners therein and the party respondents could remit basic tax in the meanwhile and the Revenue O.P. No. 18392 of 2002 : 4 : authorities were directed to accept the same subject to the out come of the civil cases mentioned above, simultaneously pointing out necessary endorsements shall be effected on the receipts, as specified therein. 5. As mentioned herein before, the challenge raised by the petitioner against Ext. P5 has not been sought to be controverted the concerned respondents by filing counter affidavit. That apart, the Civil Suit bearing No. 23 of 1997, which was pending before the Sub Court, Tirur, preferred by the 7th respondent and others against the 'predecessors in title' of the petitioner stands dismissed as per Ext. P3, which is stated as final. 6. The third respondent has filed a counter affidavit, seeking to sustain the impugned order pointing out that Exts. P1 and P2 title deeds were not produced before the concerned respondents during the course of hearing. So also, it is stated that Ext. P3 document was not there and hence the respondents 1 to 4 could not verify the actual position in this regard and that the respondents verified only the documents produced at the time of the enquiry. 7. In the above circumstances, Ext. P5 is set aside and the petitioner is set at liberty to enjoy the property by remitting basic tax in respect of the extent covered by Exts. P1 and P2. If at all, any further O.P. No. 18392 of 2002 : 5 : enquiry is intended to be conducted in respect of the properties as claimed by the 5th, 6th and 7th respondents and also pursuant to the judgment dated 06.04.2006 in O.P. Nos. 12780 and 14280 of 2002 touching the properties covered by the Exts. P1 and P2 herein, the same shall be pursued only after giving a notice of hearing to the petitioner with liberty to raise pleadings and adduce evidence. The Original Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd