IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 28TH SEPTEMBER 2010 / 6TH ASWINA 1932 RSA.No. 1074 of 2010() ---------------------- AS.52/2005 of SUB COURT, MUVATTUPUZHA OS.409/2002 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- JOHNY, AGED 50 YEARS, S/O. JOSEPH, KALAPURACKAL HOUSE, THAZHUVAMKUNNU KARA, KALLOORKAD VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT. BY ADV. SMT.P.P.STELLA RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, THRIKKAKKARA, ERNAKULAM DISTRICT, PIN-682 021. 2. TAHSILDAR, MUVATTUPUZHA TALUK OFFICE, MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN-686 661. 3. VILLAGE OFFICER, KALLOORKAD VILLAGE OFFICE, KALLOORKAD, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 668. 4. SEBASTIAN, AGED 82 YEARS, S/O. THOMMAN, KALAPURACKAL HOUSE, THAZHUVAMKUNNU KARA, KALLOORKAD VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 668. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1074 OF 2010 -------------------------------- Dated this the 28th day of September 2010 JUDGMENT Concurrent decision rendered by the two courts below declining the claim for mandatory injunction by the appellant/plaintiff is challenged in this appeal. Plaintiff laid the suit as against the revenue officials, and also another, from whom he got assignment of the plaint property by transfer. The case of the plaintiff in brief for the relief of mandatory injunction is that there was culpable default on the part of the revenue officials in effecting mutation of the plaint property in his favour despite filing of a representation before such officials and sending repeated reminders for action on such representation. In view of the nonaction and default of the revenue officials, the revenue charges due on his property payable as basis tax are in arrears was his further case. Even according to the appellant/plaintiff, there was some mistake with respect to the survey/sub division numbers shown in the title deed taken by him from 4th defendant and such mistakes require to be corrected while effecting the mutation over the properties. The revenue officials/ defendants 1 to 3 filed a written statement that mutation, in the normal course, can be effected only with reference to the prior document and revenue records. As there was serious discrepancy with R.S.A No.1074 OF 2010 - 2 - reference to the survey numbers shown in the document of transfer taken by the plaintiff, no action was taken. At any rate, the plaintiff was not entitled to the decree of mandatory injunction applied for was the case of the revenue officials. 4th respondent, the transferor of the plaintiff, also filed a written statement contending that he was prepared to execute a correction deed to rectify the mistakes relating to the survey/sub division numbers in the title deed of the plaintiff. He further contended that the attempt of the plaintiff was to snatch a portion of the property which belong to his brother and, for that purpose, the mistake in the survey number is projected to have the relief canvassed in the suit with respect to mutation. 2. Both the courts below after appreciating the materials on record with reference to the pleadings of the parties concurrently held that the relief canvassed by the plaintiff for a decree of mandatory injunction in the given facts of the case was not allowable and in that view of the matter, the plaintiff was nonsuited. Before me, the learned counsel for the appellant strenuously contended that there was misappreciation and misconstruing of the materials tendered in the case by both the courts below and that has led to wrong conclusion resulting in manifestation of injustice. After going through the judgments of the courts below, I am unable to accept the challenge mooted by the counsel to assail the R.S.A No.1074 OF 2010 - 3 - concurrent decision rendered holding that the plaintiff is not entitled to the discretionary relief of decree of mandatory injunction. It has come out from the evidence that the plaintiff had previously filed a suit against the brother of the 4th defendant in respect of the very same subject matter covered by this suit and that suit instituted as one for injunction later was amended for recovery of possession. That suit, it is conceded, had been dismissed, against which the counsel for the appellant submits there was an appeal but that too had ended in its dismissal. It is further submitted by the counsel that the plaintiff awaits for the receipt of the certified copy of the judgment/decree in that appeal to prefer a second appeal challenging the decision rendered in that suit. Whatever that be, on the facts presented and the dispute canvassed, I find statutory rules are in force enabling and empowering the plaintiff to seek for appropriate relief to have mutation of the property which is claimed by him in the suit on the basis of the transfer effected by the 4th defendant and without resorting to those provisions, he has approached the Civil Court to have a decree of mandatory injunction to compel the revenue officials to effect the mutation over her property. He has filed representation before the revenue officials for effecting mutation evidently does not satisfy the requirements necessary under the rules for effecting mutation as contemplated R.S.A No.1074 OF 2010 - 4 - under the Transfer of Registry Rules, 1996. When statutory rules are in force, nothing prevented the plaintiff in proceeding under such rules for effecting the mutation over his property. It is also to be noted that he has not filed a suit for declaration of his title over the property but only for the relief of mandatory injunction to direct the revenue officials to effect mutation over his property. If a decree of the civil court is obtained declaring his title over the property, needless to point out, even under the Transfer of Registry Rules, revenue officials concerned have to give effect to such decree. But, the plaintiff, it seems has taken a shortcut method to seek a decree of mandatory injunction without recourse to the Transfer of Registry Rules. There is no merit in the appeal, and it is dismissed. Irrespective of the dismissal of the suit, the plaintiff can seek for appropriate reliefs as provided under the Transfer of Registry Rules, if so advised. S.S.SATHEESACHANDRAN JUDGE vdv The fifth sentence, “Even according to the appellant/plaintiff, ........ over the properties.” occurring in the 1st page of the judgment dated 28/09/2010 in R.S.A 1074/2010 is deleted as per order dated 22/12/2010 in I.A 2937/2010. Sd/- Registrar (Judicial)