IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :22.07.2010 CORAM: THE HON'BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.7442 of 2003 V.Srinivasan ...Petitioner Vs. 1.The Special Commissioner & Commissioner, Land Acquisition Ezhilagam, Chepauk, Chennai-5. 2.The District Revenue Officer(Salem) Collectorate, Salem. 3.The Tahsildar, Salem 4.Karthikeyan ...Respondents Prayer : This writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus to call for the records of 1st respondent bearing R.Dis.K4/2241/2002 dated 01.07.2002 quash the same and direct the 1st respondent to maintain the revenue records as per the proceedings of the third respondent dated 30.07.1987. For Petitioner : Mr.R.Subramanian & Mr.M.Sudhakar For Respondents : Mrs.M.Sneha G.A for RR1-3 Mr.A.Kumar for R4 ORDER The prayer in the writ petition is for issuance of writ of Certiorarified Mandamus to quash the order passed by the first respondent, dated 01.07.2002 and to direct the first respondent to maintain the revenue records as per the proceedings of the third respondent dated 30.07.1987. 2. The facts, which are necessary for the disposal of this writ petition are that the petitioner claims that he had occupied an extent of 788 sq.ft in T.S.No.321, Block No.33 in Ward B of https://hcservices.ecourts.gov.in/hcservices/ Maravaneri Village, Salem Taluk in or about 1954 and he has also put up a residential house on the property. The father of the fourth respondent one Subramanian Gurukkal filed O.S.No.1691/1984 on the file of the Principal, District Munsif Court, Salem for permanent injunction, from in any manner altering the physical features and superstructure in the property and claimed that the property was lease out to the petitioner. During the pendency of the suit, since the fourth respondent's father died, the suit was dismissed as abated by Judgment dated 27.02.1990. Thereafter, the legal heirs of the said Subramanian Gurukkal including the fourth respondent issued a legal notice dated 01.11.1987 to the petitioner stating that the vacant site was leased out to the petitioner and he had constructed a thatched sheet and therefore, the petitioner was liable to pay damages for use and occupation at the rate of Rs.21/- per month for three years. The petitioner sent a reply on 29.11.1987 and denied the allegations. Thereafter, the fourth respondent and other legal heirs of Subramanian Gurukkal filed O.S.No.1161 of 1988 on the file of the Principal, District Munsif Court, Salem for recovery of possession and mesne profits, the said suit came to be dismissed for default on 01.02.1995. 3. Even prior to these proceedings, the petitioner had applied to the Tahsildar for grant of Patta and the Tahsildar after taking note of the objections of the fourth respondent by proceedings dated 30.07.1987, included the petitioner's name in the Patta along with others in respect of an extent of 788 sq. ft in T.S.No.321. Against such order, the fourth respondent filed an appeal before the Revenue Divisional Officer, Salem and the appellate authority by order dated 18.10.1989, directed status-quo to be maintained as it existed prior to the order passed by the Tahsildar, since Civil suit was pending between the parties and directed the parties to get their title determined by Civil Court. As against such order, the petitioner filed a revision petition before the second respondent and the second respondent by order dated 20.12.1993, remanded the matter to the third respondent for fresh consideration. On remand, the third respondent by order dated 08.11.1996, held that the earlier order passed by the Tahsildar dated 30.07.1987 is incorrect and directed the revenue records to be restored in the name of Subramanian Gurukkal. Aggrieved by such order, the petitioner filed the revision petition before the first respondent and the first respondent by order dated 01.07.2002, dismissed the revision petition. Aggrieved by such order, the petitioner has filed this writ petition. 3. The learned counsel appearing for the petitioner made elaborate submission on the facts and brought to the notice of this Court, all the documents filed in the typed set of papers commencing from the sale deed from 09.05.1950, executed in favour of the fourth respondent's father and the various proceedings of the respondents 1 https://hcservices.ecourts.gov.in/hcservices/ to 3 as well as the decree passed in the Civil suits and contended that since, the suit filed that the fourth respondent's father for permanent injunction was dismissed and the subsequent suit filed by the fourth respondent and other legal heirs for recovery of possession was also dismissed and the 1st respondent ought to have restored the order dated 30.07.1987. The learned counsel would further submit that the predecessor in title of the fourth respondent had purchased only an extent of 675 sq. ft. out of 2847 sq. ft and the question of granting patta for entire extent in the name of Subramanian Gurukkal does not arise. The learned counsel further submit that the first respondent erred in observing that the patta granted by the settlement authority is final irrespective of the enjoyment of the property. That the suit for recovery of possession having been dismissed, the fourth respondent is prevented under law from making any claim to the property in question. Further, by placing reliance on the legal notice dated 01.11.1987, it is contended that the case of the fourth respondent was that the petitioner took the vacant site on monthly rent. Thus, based on all these facts, the learned counsel would contended that the order of the first respondent is erroneous. Further, the learned counsel placed reliance on the Hon'ble Full Bench decision of this Court, reported in Srinivasan and Six others Vs. Sri Madhyarjuneswaraswami and others, 1998 1 CTC 630, which was subsequently followed in B.Jayachandran Vs. Vasanthamani and others, 2010 2 CTC 860, in support of his contentions. 4. The learned counsel appearing for the fourth respondent would submit that the writ petition is not maintainable and all issues, which are raised by the petitioner are disputed questions of fact and the same cannot be agitated in a writ petition. During the pendency of the writ petition, the petitioner herein has filed a comprehensive suit in O.S.No.627 of 2005, on the file of the District Munsif Court, Salem, in which the fourth respondent is also defendant and the Salem Municipal Corporation has also been impleaded as the defendant. Therefore, it is proper for the petitioner to work out his rights before the Civil Court in the pending suit. 5. The learned Government Advocate appearing for the respondents 1 to 3 would submit that the order passed by the first respondent is based on proper appreciation of the entire documents on record and this Court in a writ petition will not re-appreciate those documents and come to a different conclusion. 6. I have heard the learned counsels for the parties and perused the materials available on record. 7. The learned counsel appearing for the petitioner had submitted that the finding rendered by the first respondent in the https://hcservices.ecourts.gov.in/hcservices/ impugned order that the revenue authorities have no power to alter the patta issued during the settlement proceedings without any valid orders of competent Tahsildar is an erroneous findings and that the first respondent came to a wrong conclusion that the patta issued by the settlement authorities is final irrespective of the question of possession. As rightly pointed out by the learned counsel appearing for the petitioner, the Full Bench of this Court in the case of Srinivasan and Six others, referred supra, has held as follows:- " the jurisdiction of the Civil Courts cannot be held to have been completely ousted or barred at any rate in respect of adjudication of claims of title and questions or issues which are not obliged or required to be adjudicated for the purposes of enforcement of these laws which has, as their objection and aim, to implement ryotwari settlement in the areas governed by them. Further, the mere fact that the orders passed or decisions rendered under these Acts were given finality for the purposes of those Acts or that the issues, which they are obliged or required to be decided, when so decided are ordained to bind the parties to the proceedings or their privies and successors-in-interest applying the Principles of res judicata, does not have the effect of ousting the jurisdiction of the Civil Court once and for all. It is by now well settled that even in cases where finality is accorded to any decision or order, there are certain well settled exceptions and proved and existence of such exceptional factors, the Civil Court is entitled to nullify any or all such decisions." 8. Therefore, the law declared by the Full Bench is to the effect that the Civil Court is competent to nullify any decision arrived at by the settlement officer under Act 30 of 1963, when the Civil Court found that their exists exceptional factors to take such a decision. Therefore, there cannot be any quarrel about such proposition any longer as the issue has been finally decided by the Hon'ble Full Bench. Perusal of the facts of the case would reveal that the petitioner's claim itself is based on possession, which according to the petitioner is from 1954. Further, heavy reliance has been placed by the learned counsel for the petitioner on the Judgment and decree in O.S.No. 1691 of 1984 and O.S.No.1161 of 1988. It is true that the Suit in O.S.No.1161 of 1988, was recovery of possession and the suit was dismissed for default. However, based on these records alone, the revenue officials cannot come to a conclusion that the petitioner is entitled to grant of patta. The Hon'ble Supreme court in (2009) 15 SCC 429, Ramesh Dutt and Others Vs. State of Punjab and others, while considering the effect of entries in the revenue records held as follows:- https://hcservices.ecourts.gov.in/hcservices/ 15...It is now a well-settled principle of law that entry in a revenue record-of-rights merely is an evidence of possession, [See Faqruddin Vs. Tajuddin, (2008) 8 SCC 12]. Such an entry does not create title; absence thereof does not extinguish the same......." 9. Be that as it may, it is to be noted that during the pendency of the writ petition, the petitioner has filed a suit in O.S.No.627/2005 for a declaration to declare that name transfer of House Tax Assessment to the names of the defendants 2 to 4, by the first defendant Municipal Corporation is against the law and to delete the names of the defendants 2 to 8 and restore the name of the petitioner/plaintiff in the House Tax Assessment records by way of a mandatory injunction. The copy of the plaint has been filed in the typed set of papers, filed by the fourth respondent. In the plaint, the petitioner has referred to the earlier Civil suits, which were dismissed and about the pendency of the present writ petition. In the plaint, the petitioner has claimed that he is in possession and enjoyment of an extent of 788 sq.ft. from 1954 and that the property has been assessed in House Tax in his name from 1963 to 31.03.2005 and in 2005, the Tax Assessment was changed in the name of defendants. Thus, one of the issues, which would be decided by the Trial Court is as to whether the Municipal Corporation was justified in transferring the House Tax Assessment in the name of the defendants and to decide such a question, a necessity will arise to go into the aspect, regarding the petitioner's title and possession of the property. Without adjudicating on the question of title and possession of the petitioner over the property the relief claimed in the suit cannot be decided. When the Civil Court takes of this issue for consideration, it would decide the matter based on the oral and documentary evidence placed before the Court and independently come to a conclusion as regards the rights of parties. 10. Therefore, this court is of the view, that the appropriate remedy for the petitioner is to approach the competent Civil Court to get a decision as regards his title and possession. This could be very well be done in the pending suit in O.S.NO.627/2005 or it would be well open to the petitioner to file a separate suit to decide the petitioner right over the property, if he so decides. In that view of the matter this writ petition cannot be entertained more so when the entire case revolves around facts, which are not only complicated, but also disputed. Therefore, while declining to grant the relief sought for, the writ petition is disposed of, giving liberty to the petitioner to agitate his rights before the competent Civil Court and it is needless to state that the competent Civil Court will decide the right of the petitioner over the property based on oral and documentary evidence without being influenced by the decision of the revenue authorities, who have no https://hcservices.ecourts.gov.in/hcservices/ jurisdiction to decide the question of title. 11. With these observations, the writ petition is disposed of and the order passed by the respondents 1 to 3 does not call for interference and the entries in the revenue records, as it should prior to the order of the Tahsildar dated 30.07.1987, shall continue to be maintained as ordered by the first respondent in the impugned order, dated 01.07.2002. and would abide by the decision of the Civil Court. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To 1.The Special Commissioner & Commissioner, Land Acquisition Ezhilagam, Chepauk, Chennai-5. 2.The District Revenue Officer(Salem) Collectorate, Salem. 3.The Tahsildar, Salem +1cc to M/s. R.Subramanian, Advocate Sr 53563 +1cc to MR.A.Kumar, Advocate Sr 53115 +1cc to Govt. Pleader Sr 53546 AKR(CO) km/30.7. W.P.No.7442 of 2003 https://hcservices.ecourts.gov.in/hcservices/