IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 11TH MARCH 2008 / 21ST PHALGUNA 1929 WP(C).No. 16901 of 2005(K) -------------------------- PETITIONER: ------------ A.A. PAUL, AGED 67 YEARS, S/O. ANTONY, AMBOOKKAN HOUSE, THUMBOOR, KOTTANALLOOR VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.BABU CHERUKARA SRI.RUSSEL. S RESPONDENTS: ------------- 1. DISTRICT COLLECTOR, THRISSUR DISTRICT, CIVIL STATION, AYYANTHOLE, THRISSUR. 2. THE TAHSILDAR, MUKUNDAPURAM TALUK, IRINJALAKUDA P.O., THRISSUR DISTRICT. 3. KERALA SMALL INDUSTRIES DEVELOPMENT CORPORATION, REPRESENTED BY ITS GENERAL MANAGER, SIDCO, RAW MATERIAL DIVISION, GANDHI NAGAR, COCHIN-20. 4. M.K. FRANCIS, S/O. KOCHUPAPPU, MOOKKAN HOUSE, AVINISSERRY P.O., OLLU, TRICHUR DISTRICT. 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY, REVENUE DEPARATMENT, SECRETARIAT, TRIVANDRUM. BY GOVT.PLEADER SHRI ,MATHEW GEORGE VADAKKEL FOR R1, R2 & R5 ADV. SRI.M.A.MANHU, SC, SIDCO FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ----------- W.P.(C)No. 16901 OF 2005 ----------------------------- DATED THIS THE 11TH DAY OF MARCH, 2008 J U D G M E N T According to the petitioner, he purchased an extent of 58 ½ cents of land in various survey numbers in Kattoor Village from Irinjalakuda Kuries and Finance (P) Ltd. under Exhibit P1 sale deed. The vendor of the petitioner had obtained the property under Court auction, by executing the decree in O.S.No.200/92, which is a suit filed by it for realisation of the amount due under a loan transaction. Apparently, the Court sale was confirmed and Exhibit P2 sale certificate was issued in favour of the petitioner under Exhibit P3. According to the petitioner, he thereafter moved for delivery of the property. According to him, an application under Order XXI Rule 58 CPC was filed by the Tahsildar contending that the property covered by Exhibit P1 document had already been attached at the instance of SIDCO and that therefore the said property was not liable to be sold in Court auction. Apparently, the petition under Order XXI Rule 58 W.P.(C)No.16901/05 2 CPC was treated as a claim petition and it was dismissed under Exhibit P5 order dated 23.3.1999. The Court held that sale had been effected earlier, sale certificate issued and therefore the petition under Order XXI Rule 58 CPC was not maintainable. It is seen that in the meanwhile, the same property was brought to revenue sale and the 4th respondent purchased the same. He approached this Court in O.P.No.2201/03 contending that the revenue sale in his favour was held on 16.4.1996, that the sale was confirmed on 4.7.1996 and that nevertheless the sale certificate was not being issued. This Court under Exhibit P8 judgment disposed of the writ petition directing the Tahsildar to give the documents of title of the property to the petitioner therein and also to do everything that is required to confer title on the petitioner therein to get mutation effected. 2. The petitioner preferred Writ Appeal No.630/03 against Exhibit P8 judgment. Exhibit P9 is the memorandum of appeal. The petitioner referred to the Court sale at the instance of Irinjalakuda Kuries and subsequent purchase effected by him under Exhibit P5. The Division Bench of this Court in Exhibit P11 judgment declined to interfere with Exhibit P8. The Court held as follows: W.P.(C)No.16901/05 3 “ We are of the view, if the appellant is aggrieved by the issuance of sale certificate and has got a superior claim over the property in question those are all matters to be taken up by the appellant before appropriate forum. Disputes between the parties cannot be adjudicated by us in this writ appeal. Under such circumstances, this writ appeal is disposed of. We make it clear that the judgment of the learned Single Judge and the issue of sale certificate would not stand in the way of the appellant in agitating his rights before appropriate forum. We are also not expressing any final opinion with regard to the rights of the parties.” Therefore the Division Bench made it clear that if the petitioner has got superior claim over the property in question, then it is upto him to agitate the matter before the appropriate forum. W.P.(C)No.16901/05 4 3. It is after Exhibit P11, the petitioner has preferred this writ petition essentially challenging Exhibit P12 sale certificate issued in favour of the purchaser in the revenue auction. 4. I have heard the learned counsel for the petitioner and the learned Government Pleader as well. In my view, the petitioner cannot maintain a challenge against the sale certificate in proceedings under Article 226 of the Constitution of India for more than one reason. Firstly, the petitioner's contentions in this behalf were considered by the Division Bench in Exhibit P11 judgment. The Division Bench held that if the petitioner has superior claim over the property, it is upto him to approach the appropriate forum in that regard. In other words, if the petitioner asserted a title to the property stated to have been acquired prior in point of time, then it is upto him to assert title and seek to defend the same against all others including the subsequent purchaser. It is upto the petitioner to seek appropriate reliefs in this regard. In my view, the appropriate forum for the petitioner would be the Civil Court. Secondly, the challenge merely against the sale certificate issued under the provisions of the Revenue Recovery Act would not be maintainable. The petitioner has not challenged the revenue sale in W.P.(C)No.16901/05 5 favour of the holder of Exhibit P12 certificate under the provisions of the Revenue Recovery Act. Of course, it is possible that the petitioner may not consider it necessary to do so, consistent with his claim that his vendor had acquired title to the property prior to the acquisition of title by the auction purchaser and that he has superior claim over that property. At any rate challenge against sale certificate may not really improve the case of the petitioner. For all these reasons, the petition is bereft of merits and it is dismissed subject to the right of the petitioner to take appropriate action as already permitted by this Court under Exhibit P11 judgment. V.GIRI, JUDGE. dsn