IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.12.2010 CORAM THE HONOURABLE MR.JUSTICE K.N.BASHA W.P.No.23792 of 2008 & M.P.No.1 of 2008 1. K.Palanisamy 2. P.Lakshmi .. Petitioners Vs. 1. The District Addl.Executive Magistrate-cum- District Revenue Officer, Coimbatore, Coimbatore District. 2. The Revenue Divisional Officer, Tiruppur, Coimbatore District. 3. R.Muthusamy 4. K.Mayilsamy .. Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India praying to issue Writ of Certiorarified Mandamus calling for the records of the 1st respondent in and by his proceedings in Pa.Ma.See.Ma.No.1/06/E2 dated 23.04.2008 and quash the same and consequentially to direct the respondents 1 and 2 to transfer the patta in favour of the petitioners. For Petitioners : Mr.V.Bharathidasan For RR 1 & 2 : Ms.Lita Srinivasan, Govt. Advocate For RR 3 & 4 : N.Manoharan ORDER The petitioners have come forward with this petition seeking for the relief of quashing the proceedings of the first respondent in Pa.Ma.See.Ma.No.1/06/E2 dated 23.04.2008 and consequentially directing the respondents 1 and 2 to transfer the patta in favour of the petitioners. 2. The case of the petitioners is that they are the absolute owners in respect of survey Nos.367/2 and 400/2 in Ichipatti, Palladam Taluk, Coimbatore District, to an extent of 7.20 acres and 3.42 acres respectively. Earlier, one Muthu Gounder, great grand- father of the second petitioner herein was the absolute owner of total extent of 31.33 acres in survey Nos.366/2, 378, 387/1 and 400/2 in the above said village. He died intestate on 29.05.1914 https://hcservices.ecourts.gov.in/hcservices/ leaving behind three sons, namely, Kandappa Gounder, Karuppa Gounder and Raya Gounder and the revenue records have been changed in the name of Kandappa Gounder, who is the eldest son of Muthu Gounder and the taxes have been paid by him. The third son Raya Gounder died on 15.01.1932 leaving behind the two sons, namely, Muthu Gounder and Karuppa Gounder. The other brothers of Raya Gounder, namely, Kandappa Gounder and Karuppa Gounder died without marriage. Therefore, Karuppa Gounder was the only legal hair for the entire property owned by Muthu Gounder. The above said Karuppa Gounder executed a settlement deed in favour of his daughter Lakshmi, the second petitioner herein, on 27.01.2004 in respect of Survey No.367/2 to an extent of 3.60 acres and Survey No.400/2 to an extent of 2.85 acres and thereafter, the second petitioner executed a settlement deed in favour of her husband/the first petitioner herein in respect of Survey No.367/2 to an extent of 3.60 acres and as such, both the first petitioner and the second petitioner became the absolute owners of the property in Survey Nos.367/2 and 400/2. The revenue records also stand in their name. 3. That being the position, the respondents 3 and 4 herein started interfering with the peaceful possession and enjoyment of the properties of the petitioners in respect of the above said two survey numbers claiming right over the property by virtue of an alleged sale deed said to have been executed by Raya Gounder in favour of one Linga Gounder on 05.11.1924 in respect of Survey Nos.367/2 to an extent of 7.20 acres and Survey No.400/2 to an extent of 1.14 acres. After several transfers finally the respondents 3 and 4 purchased the properties. In view of the said claim of the respondents 3 and 4, the first petitioner was constrained to file a suit in O.S.No.293 of 2005 on the file of the District Munsif Court, Palladam, for declaration declaring the right over the property and also for a consequential injunction restraining the respondents 3 and 4 herein from interfering with their possession of the property. The respondents 3 and 4 also filed their written statements and contesting the suit which is pending as on date on the file of District Munsif, Palladam. Thereafter, the respondents 3 and 4 filed an application before the second respondent, Revenue Divisional Officer, Tiruppur, to cancel the patta stands in the names of the petitioners and to include their names in the patta by placing reliance on the sale deed said to have been executed by Raya Gounder in favour of Linga Gounder on 05.11.1924 which is the subject matter of the dispute in the pending civil suit. The petitioner contested the said petition by filing a counter. But the second respondent arrived at a wrong conclusion that Raya Gounder is the absolute owner of the property and he had transferred the right in favour of one Linga Gounder and hence, the petitioners cannot claim right over the property and accordingly, he removed the names of the petitioners and included the respondents 3 and 4 in the patta. Being aggrieved against the said order of the second respondent, the petitioner preferred an appeal before the first respondent, District Revenue Officer, and the said appeal was also dismissed. Being aggrieved against the said orders, the present petition has been preferred with the above said prayer. https://hcservices.ecourts.gov.in/hcservices/ 4. Mr.V.Bharathidasan, learned counsel for the petitioners would vehemently contend that both the respondents 1 and 2 have committed serious error of law in going into the disputed title of the properties raised by the respondents 3 and 4 as such dispute in respect of question of title could be decided only by a competent civil court. It is contended that placing reliance on the documents produced by the petitioners, the Tahsildar, rightly entered the names of the petitioners in the patta in respect of the subject property of this writ petition. It is contended that both the respondents 1 and 2 have gone into the question involved in this matter by assessing and analysing the documents relied on by the respondents 3 and 4 particularly, the sale deed said to have been executed by Raya Gounder in favour of one Linga Gounder dated 05.11.1924 and the said document is the subject matter of the civil suit preferred by the first petitioner in O.S.No.293 of 2005 on the file of the District Munsif Court, Palladam. The learned counsel for the petitioners would point out that the said factor was also brought to the notice of the respondents 1 and 2 and contended that the said dispute is now pending on the file of the civil court and as such, only the civil court is having jurisdiction to decide the question of title of the respective properties. It is also brought to the notice of this Court by the learned counsel for the petitioners that the respondents 3 and 4 have also filed a suit in O.S.No.731 of 2008 before the Principal District Court, Coimbatore, and the same is pending as on date for partition and separate possession, in which, the petitioners are one of the defendants. The learned counsel would also place reliance on the decision of this Court in Chockkappan Vs. State of Tamil Nadu reported in 2004 (1) CTC 136. 5.0. Per contra, Mr.N.Manoharan, learned counsel for the contesting respondents 3 and 4, would contend that there is no illegality or infirmity in the impugned orders passed by the respondents 1 and 2. It is contended that the second respondent has rightly set aside the order of the Tahsildar and transferred the patta in favour of the respondents 3 and 4 by placing reliance on the documents produced by the respondents 3 and 4 particularly, the sale deed executed on 05.11.1924 by Raya Gounder in favour of Linga Gounder. It is contended that the petitioners fabricated the settlement deeds and claimed patta only on the basis of the two settlement deeds said to have been executed by the father of the second petitioner, who is the wife of the first petitioner, dated 27.01.2004 in Settlement Deed Nos.259/2004 and 262 of 2004. It is contended that the order passed by the Tahsildar adding the names of the petitioners along with the names of the respondents 3 and 4 was set aside by the second respondent by deleting the names of the petitioners, which order was also confirmed by the first respondent/District Revenue Officer. The learned counsel for the respondents 3 and 4 would further contend that as per the provisions under Sections 4 and 6 of the Tamil Nadu Patta Passbook Act, 1983, the entries made in the patta book have to be considered as the prima facie evidence of title. It is further contended that without setting aside the impugned orders, both the petitioners and https://hcservices.ecourts.gov.in/hcservices/ the respondents 3 and 4 can agitate their rights to the title of the properties before the civil forum. 5.1. The learned counsel for the respondents 3 and 4, in support of his contentions, would also place reliance on the following decisions of the Hon'ble Apex Court and this Court : (1)Suraj Bhan Vs. Financial Commissioner reported in (2007) 6 SCC 186 ; and (2)Kuppuswami Nainar Vs. The District Revenue Officer, Thiruvannamalai, reported in 1995 (1) MLJ 426 ; 6. Heard the learned Government Advocate appearing for the respondents 1 and 2 on the contentions put forward by the learned counsel for the petitioners and the learned counsel for the respondents 3 and 4. 7. This Court carefully considered the rival contentions put forward by either side and perused the entire materials available on record including the impugned orders passed by the respondents 1 and 2. 8. The fact remains that the petitioners as well as the respondents 3 and 4 placed reliance on certain documents for claiming right for grant of patta in their favour. The petitioners, who are the husband and wife, have claimed right over the property on the basis of two settlement deeds dated 27.01.2004. As far as the respondents 3 and 4 are concerned, they have placed reliance on the sale deed said to have been executed on 05.11.1924 by the Raya Gounder in favour of Linga Gounder. The petitioners claimed that the sale deed dated 05.11.1924 relied on by the respondents 3 and 4 is a forged one. On the other hand, the respondents 3 and 4 claimed that the settlement deeds relied on by the petitioners are fabricated documents. Be it as it may, it is pertinent to note that the Tahsildar thought it fit to include the names of the petitioners along with the names of the respondents 3 and 4 in the patta, namely, the revenue records, in respect of the very same survey Nos.400/2 and 367/2. 9. A perusal of the both the orders, viz., the order passed by the second respondent dated 05.12.2005 as well as the order passed by the first respondent dated 23.04.2008 reveal that both the authorities have gone into the disputed question of title. At the outset, this Court is constrained to state that the said exercise made by both the authorities, namely, the respondents 1 and 2 is wholly without jurisdiction as it is well-settled that the disputed question of title can be gone into only by the competent civil court. It is also pertinent to state at this stage that pursuant to the order of the Tahsildar, the names of the respondents 3 and 4 also found place in the patta along with the names of the petitioners and as such, no prejudice would be caused to the respondents 3 and 4 by waiting for a decision of a competent civil court in respect of the disputed title relating to the above said survey numbers of the properties. As a matter of fact, both the parties have filed civil suites before the competent civil courts. https://hcservices.ecourts.gov.in/hcservices/ The petitioners preferred a civil suit, at the earliest point of time, by filing a suit in O.S.No.293 of 2005 on the file of the District Munsif Court, Palladam, and the respondents 3 and 4 have filed a civil suit in O.S.No.731 of 2008 on the file of the Principal District Court, Coimbatore and in both the suits, the petitioners and the respondents 3 and 4 have impleaded each other and the said suits are pending till date. It is seen that the said factor of the pendency of the civil suits was also brought to the notice of the authorities, namely, the respondents 1 and 2. But inspite of the same, the respondents 1 and 2 proceeded to go deep into the disputed question of title and arrived at the conclusion to the effect of deleting the names of the petitioners and including only the names of the respondents 3 and 4. 10. The learned counsel for the respondents 3 and 4 placed reliance on the decision of the Hon'ble Apex Court in Suraj Bhan and Others Vs. Financial Commissioner reported in 2007 (6) SCC 186. In the said decision, the Hon'ble Apex Court has held as hereunder : "8. So far as mutation is concerned, it is clear that entry has been made and mutation has been effected in revenue records by the Tahsildar on the basis of an application made by Respondent 5 herein and his name has been entered in record-of-rights on the basis of the will said to have been executed by Ratni Devi. In our opinion, therefore, it cannot be said that by entering the name of Respondent 5 in revenue records, any illegality had been committed by the Tahsildar. It is true that no notice was issued to the appellants but the Tahsildar had taken the action on the basis of will said to have been executed by deceased Ratni Devi in favour of Respondent 5. The said order has been confirmed by the Collector as also by the Financial Commissioner. When the grievance was made against the said action by filing a writ petition, the High Court also confirmed all the orders passed by the Revenue Authorities under the Act. We see no infirmity so far as that part of the order is concerned. 9. .... It is well settled that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. It is settled law that entries in the revenue records or jamabandi have only “fiscal purpose” i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent civil court." The principle laid down by the Hon'ble Apex Court would make it crystal clear that the Hon'ble Apex has clearly held that the revenue records does not confer title on a person whose name appears in the record-of-rights and the said revenue records have only "fiscal purpose" for payment of land revenue and no ownership is conferred on the basis of such entries. The Hon'ble Apex Court has further held that the title to the property is concerned, it https://hcservices.ecourts.gov.in/hcservices/ can only be decided by a competent civil court. 11. It is also from the decision of the Hon'ble Apex Court (cited supra) that the name of the fifth respondent had been entered in the record-of-rights on the basis of a Will as per the application made by the fifth respondent and the said order was subsequently confirmed by the appellate authorities. In the instant case also, the name of the petitioners have been entered in the revenue records, namely, patta, along with the respondents 3 and 4. Such being the position, the respondents 1 and 2 could not have undertaken the exercise of adjudicating the disputed question of title to the said properties of the writ petition more particularly, the fact of filing the civil suits by both the parties and the pendency of the same was brought to the notice of the said authorities by the petitioners. 12. A Division Bench of this Court also taken a similar view in Kuppuswami Nainar Vs. The District Revenue Officer reported in 1995 (1) MLJ 426. The Division Bench has held as hereunder : "3. No provision is brought to our notice in the Standing Orders of the Board of Revenue taking away the jurisdiction of the civil court to adjudicate upon the question of title relating to immovable property. Revenue Officers in a patta proceedings may express their views on the question of title, but such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately, it is the civil court which has to adjudicate the question as to whether the person claiming patta is the title-holder of the land. Even if the revenue authorities decide the question of title, that will not in any way affect the jurisdiction of the civil court, which has to decide the question without reference to the decision of the revenue authorities. 4. Now the question for consideration is, having regard to the fact that the District Revenue Officer has expressed his opinion on the question of title whether the order under question should be interfered with. It may be pointed out here that in a petition under Art.226 of the Constitution the question of title regarding immovable property cannot properly be gone into, because a mass of evidence may be required for adjudicating the question of title. Even if we are to interfere with the order under appeal, it is the other party, who has to go to a civil court and establish title. As far as the exercise of jurisdiction under Art.226 of the Constitution is concerned, it does not matter to it whether 'A' party goes to civil court or 'B' party. Therefore, we are of the view that the question of title has to be decided by the civil court, ...." 13. A learned Single Judge of this Court subsequently followed the Division Bench decision of this Court, as stated above, in the decision in Chockkappan Vs. State of Tamil Nadu reported in 2004 https://hcservices.ecourts.gov.in/hcservices/ (1) CTC 136 and took a similar view. Therefore, such a settled principle of law cannot be unsettled by confirming the two impugned orders passed by the respondents 1 and 2 as both the respondents have gone into the disputed question of title and thereby exceeded their jurisdiction. 14. The learned counsel for the respondents 3 and 4 placed reliance on the provisions of the Tamil Nadu Patta Passbook Act, 1983. This Court is of the considered view that in the instant case, the inclusion of the names of the petitioners or the inclusion of the names of the respondents 3 and 4 is not as per the provision of the Tamil Nadu Patta Passbook Act, and as such no reliance could be placed on the said provisions. 15. In view of the aforesaid reasons, this writ petition is allowed and the order passed by the first respondent in Pa.Ma.See.Ma.No.1/06/E2 dated 23.04.2008 as well as the order passed by the second respondent in Na.Ka.No.9000/2005/A2 dated 05.12.2005 are hereby set aside. Consequently, connected miscellaneous petition is closed. No costs. 16. It is made clear that the dispute in respect of the title of the said properties of this writ petition could be decided only by the competent civil court and it is open to the petitioners as well as the respondents 3 and 4 to establish their rights in their respective suits pending as on date in the respective civil courts. 17. It is further made clear that merely because patta has been conferred in the names of the petitioners as well as in the names of the respondents 3 and 4, it cannot be stated that the title of the respective properties have been conferred on them and the civil courts necessarily have to decide the question of title independently on the basis of the evidence adduced before it by the respective parties. Sd/ Deputy Registrar /true copy/ Sub Asst.Registrar gg To 1. The Principal District Judge, Coimbatore. 2. The District Munsif, Palladam. 3. The District Addl. Executive Magistrate-cum- District Revenue Officer, Coimbatore, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ 4. The Revenue Divisional Officer, Tiruppur, Coimbatore District. 1 cc To Mr.V.Bharathidasan, Advocate, SR.90289. 1 cc To Mr.N.Manokaran, Advocate, SR.90328. 1 cc To The Government Pleader, SR.90289. W.P.No.23792 of 2008 & M.P.No.1 of 2008 PA(CO) RVL 12.01.2011 https://hcservices.ecourts.gov.in/hcservices/