IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 10TH MARCH 2010 / 19TH PHALGUNA 1931 WP(C).No. 36639 of 2009(Y) -------------------------------------- PETITIONER: ------------------- HARIDAS, S/O. ANANDA KRISHNAN EMBRANDHIRI, MARATH MADOM, POOTHOTTA. BY ADV. MR.DINESH R.SHENOY. RESPONDENTS: ------------------------ 1. THE TAHSILDAR, O/O. THE TAHSILDAR, KANAYANNUR TALUK, ERNAKULAM. 2. THE VILLAGE OFFICER, VILLAGE OFFICE, MANAKUNNAM VILLAGE, UDAYAMPEROOR.P.O. 3. KRISHNAKUMAR, W/O. LATE CHANDRASEKHARAN, RESIDING AT MARATH MADOM, POOTHOTTA, ERNAKULAM. R1 & R2 BY GOVT. PLEADER MR. M.A. ASIF, R3 BY ADV. MR.M.P.KRISHNAN NAIR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36639/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO.5871/2005, TRIPUNITHURA S.R.O. EXT.P.2: COPY OF THE APPLICATION DTD. 14/10/2009 SUBMITTED BY THE PETITIONER, TOGETHER WITH RECEIPT ISSUED BY THE R.2. EXT.P.3: COPY OF THE REPLY DTD. 14/10/2009 ISSUED BY THE R.2. REFUSING TO EFFECT MUTATION OF THE PROPERTY TO THE NAME OF THE PETITIONER. EXT.P.4: COPY OF THE ENCUMBRANCE CERTIFICATE OF EXT.P.1. PROPERTY FROM 1/1/1994 TO 7/10/2009. EXT.P.5: COPY OF THE BASIC TAX RECEIPT DTD. 07/10/2009. EXT.P.6: COPY OF THE COMPLAINT DTD. 15/10/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.7: COPY OF THE PLAINT IN O.S. NO. 1090/2009, MUNSIFF COURT, ERNAKULAM. EXT.P.8: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER, ADVOCATE AJAY V. ANAND. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S. NO.1090/09. EXT.R3.B: COPY OF THE INJUNCTION PETITION FILED BY THE PETITIONER IN O.S. 1090/09. EXT.R3.C: COPY OF THE COMMISSION APPLICATION FILED BY THE PETITIONER IN O.S. 1090/09. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.36639/2009-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of March, 2010 J U D G M E N T Aggrieved by the delay in considering the application for effecting mutation, in view of the objection raised by the third respondent herein, the petitioner has approached this Court with this writ petition. The petitioner is the absolute owner of 5 cents of property in Old Survey No.21/13/2 (Block 19 Re.Sy.782/16) of Manakkunnam Village. Ext.P1 is the copy of the sale deed. He had submitted an application for effecting mutation on 03/10/2009. It is the case of the petitioner that even though he has produced Encumbrance Certificate and Basic Tax Receipt, no action is taken to effect mutation. 2. Heard the learned counsel for the third respondent. It is the case of the third respondent that she is in occupation of 1.5 cents of property from the year 1996 onwards and, as permitted by the parents of the petitioner, who are her in-laws. A residential building was constructed by the deceased husband of the third respondent over the said 1.5 cents of land and a Thulasithara was also put up about 6 feet away from the eastern wall of the building. It is pointed out that the family of the deceased husband were in occupation and W.P.(C). No.36639/2009 -:2:- enjoyment of the property of 1.5 cents of land from 1996 onwards. 1.5 cents of property is a part of the 5 cents of property covered by Ext.P1 sale deed. Her husband expired on 31/07/2009. According to the third respondent, Ext.P1 sale deed is a sham document and Suit O.S.No.1090/2008 has been filed for the limited relief that Ext.P1 is not binding on respondent No.3 and her children to the extent of 1.5 cents of property forming part of the 5 cents of property. 3. The learned counsel for the third respondent therefore submitted that the application for mutation has to be rejected in the light of the pendency of the civil suit. 4. The document of title is in favour of the petitioner herein. The third respondent claims right to hold 1.5 cents out of 5 cents sold to the petitioner. Her right has to be established in a civil court and the civil suit is still pending. But that will not prevent the Village Officer from considering the application for mutation and take appropriate action in accordance with law. But the same will be subject to the outcome of the civil suit pending between the parties. The second respondent will therefore consider the application for mutation dated 03/10/2009 with notice to the petitioner and W.P.(C). No.36639/2009 -:3:- the third respondent and take a decision thereon within a period of two months from the date of receipt of the copy of this Judgment. The third respondent will be free to move the Civil Court for appropriate orders. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms