Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 1890 (MAD)

Fyz. Mohammad v. Special Commissioner and Commissioner of Land Administration

2012-04-12

N.PAUL VASANTHAKUMAR

body2012
Judgment :- 1. The petitioner has filed this writ petition praying to quash the order dated 27.06.2001 passed by the fourth respondent herein cancelling the patta granted in favour of the petitioner and to issue patta in favour of the sixth and seventh respondents herein, which was also confirmed by the third respondent in the appeal filed by the petitioner and further confirmed by the first respondent in the revision petition. 2. According to the petitioner, his father Late. Amir Mohammed Miran was the owner of the property situated in S.No.77-B/15-A, T.S. No.6 in Ward (A), Block 17 at Sambanthapuram Village, Rajapalayam Taluk. During the year 1980, notice under Section 9 (2) of the Survey and Settlement Boundaries Act was issued to his father and after conducting enquiry, patta was issued in the name of his father. After the death of his father, the petitioner and his brothers inherited the property and they are in possession and enjoyment of the property. According to the petitioner, the sixth and seventh respondents herein have created forged and bogus documents in respect of the property owned by the petitioner and his brothers as if they have purchased the same from third parties. Based on such forged documents, the sixth and seventh respondents have claimed 2 cents of land and filed a petition before the fifth respondent/Tahsildar for issuing patta in their name. The fifth respondent enquired the matter and found that patta was already issued in the name of the father of the petitioner. Therefoe, the fifth respondent, by order dated 18.05.1994 directed the respondents 6 and 7 to approach the Competent Civil Court to establish their right, if any. The petitioner also a filed a private complaint in S.T.C. No. 2141 of 1996 on the file of learned Judicial Magistrate No.III, Srivilliputhur for the offences punishable under Section 147, 447 and 427 of IPC against the respondents 6 and 7 also they pleaded guilty in the said STC case and they were directed to execute personal bond worth Rs.2,000/- and released under Section 4 (i) of the Probation of Offenders Act by order dated 10.12.1996. 3. According to the petitioner, even though the respondents 6 and 7 have pleaded guilty in the criminal case initiated by him, they have sent a representation dated 19.08.1996 to the second respondent and it was forwarded to the fifth respondent for conducting appropriate enquiry. 3. According to the petitioner, even though the respondents 6 and 7 have pleaded guilty in the criminal case initiated by him, they have sent a representation dated 19.08.1996 to the second respondent and it was forwarded to the fifth respondent for conducting appropriate enquiry. The fifth respondent again conducted enquiry and passed an order dated 10.12.1999 direcing the respondents 6 and 7 to establish their right before the competent Civil Court. Aggrieved by the said order, the respondents 6 and 7 have filed an appeal before the fourth respondent and the fourth respondent, based on an opinion given by the Government Advocate, passed an order dated 27.06.2001 directing the fifth respondent to issue patta in favour of the sixth and seventh respondents. As against the same, the petitioner filed an appeal before the third respondent and the same was rejected on 12.03.2003. Aggrieved by the same, the petitioner along with his brothers have filed Revision Petition before the first respondent and the same was also rejected on 27.06.2001. The petitioner has filed the present writ petition challenging the said order passed by the Revenue Divisional Officer, which was confirmed in appeal and revision. 4. The learned counsel for the petitioner would conend that the Revenue Divisional Officer has no jurisdiction to decide the title of the property and he ought to have directed the respondents 6 and 7 to approach the Civil Court to establish their right and title over the property, if any. The appellate authority as well as the revisional authority erred in confirming the order passed by the Revenue Divisional Officer and therefore, the impugned orders are liable to be set aside. In support of his contentions, he also relied on the Division Bench of this Court reported in (VishwasFootwear Company Limited, Guindy Industrial Estate, Chennai – 600 032 rep. By its Director V. Ravi vs. The District Collector, Kancheepuram and others) (2011) (5) CTC 94 and prayed for allowing this writ petition. 5. The learned Government Advocate appearing for the respondents 1 to 5 would justify the orders impugned in this writ petition by stating that the impugned orders have been passed after following the procedures and after hearing the petitioner as well as the respondents 6 and 7 and therefore, interference of this Court is not warranted. 6. 5. The learned Government Advocate appearing for the respondents 1 to 5 would justify the orders impugned in this writ petition by stating that the impugned orders have been passed after following the procedures and after hearing the petitioner as well as the respondents 6 and 7 and therefore, interference of this Court is not warranted. 6. Heard the counsel for the petitioner, learned Government Advocate for the respondents 1 to 5 as well as the contesting respondents 6 and 7. The issue involved in this writ petition is whether the Revenue authorities are competent to decide the title to immovable property. The Division Bench of this Court in the decision reported in (VishwasFootwear Company Limited, Guindy Industrial Estate, Chennai – 600 032 rep. By its Director V. Ravi vs. The District Collector, Kancheepuram and others) (2011) (5) CTC 94 held that the Revenue Divisional Officer has no jurisdiction to decide the title of the property and the proper course would be to direct the parties to the dispute to approach the competent Civil Court to establish their right. The Division Bench, in para Nos. 14 to 19, held as follows:- "14.) Keeping the above in mind, the issue is to be considered. The writ appeal raises two important questions. Firstly, whether the Revenue Divisional Officer would be competent to go into the disputed question of title while considering the application for cancellation of patta. In fact, the law on this is not res integra. As early as in the year 1995, a Division Bench of this Court in Kuppuswami Nainar v. The District Revenue Officer, Thiruvannamalai and others: 1995 (1) MLJ 426 has observed as follows: 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 proceeding 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. 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 Article 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 Article 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 without reference to the order under question. Hence, we decline to interfere with the order challenged in the writ petition. However, we make it clear that in the event a suit for declaration of title and for appropriate consequential relief is filed, the civil court shall decide such a suit, without reference to the findings recorded by Respondents 1 and 2 in the impugned orders, but only on the basis of the pleadings of the parties and evidence adduced by them before it. We also make it clear that any opinion expressed by the learned single Judge, contrary to what we have stated above, shall also stand modified accordingly. With these observations, the writ appeal is dismissed. Consequently, C.M.P. No. 15872 of 1994 filed along with the appeal is also dismissed. 15.) Following the said judgment, one of us (D. Murugesan, J) in Chockkappan's case has held that the Revenue Divisional Officer has no jurisdiction to go into the disputed questions of title at the time when an application for cancellation of patta is being considered. Consequently, C.M.P. No. 15872 of 1994 filed along with the appeal is also dismissed. 15.) Following the said judgment, one of us (D. Murugesan, J) in Chockkappan's case has held that the Revenue Divisional Officer has no jurisdiction to go into the disputed questions of title at the time when an application for cancellation of patta is being considered. As far as this law is concerned, there cannot be a second opinion as to the limited jurisdiction of the Revenue Divisional Officer only to find out prima facie as to the title and when the title is in dispute and there are rival claimants, he should refer the parties to civil Court for adjudication and depending upon the decree that may be passed by the civil Court, relevant entries in the patta could be effected by the Revenue Divisional Officer. 16.) Mr. T.M. Hariharan, learned Counsel for the Appellant would submit that the Revenue Divisional Officer has erred in deciding the title for the purpose of cancelling the patta granted in favour of the Appellant. On the other hand, Mr. P. Wilson, learned senior counsel for the fourth Respondent would submit that the writ petition itself is not maintainable since the writ Court cannot go into the disputed questions of fact, particularly when the title is in dispute and therefore the writ petition has been rightly dismissed by the learned Judge by directing the Appellant to avail the remedy of appeal. 17.) The question as to whether the revenue authorities be it the Tahsildar exercising power under Section 3 or under Section 5 or under Section 10 or the Revenue Divisional Officer exercising power under Section 12 can consider only a prima facie case as to the entitlement of a person or persons for issuance of patta. In the event such officers encounter a dispute which could be resolved only by a competent civil Court, they would not have jurisdiction to enter into such civil dispute for adjudication. To this extent, the judgments in Kuppuswami Nainar's case followed in Chockkappan'c case may be relied upon. The learned Judge in the order under appeal has also relied upon those judgments and we are in agreement with the same. To this extent, the judgments in Kuppuswami Nainar's case followed in Chockkappan'c case may be relied upon. The learned Judge in the order under appeal has also relied upon those judgments and we are in agreement with the same. 18.) As far as the power of this Court to entertain a writ petition on disputed questions, we may refer to the following decisions of the Supreme Court in Arya Vysya Sabha and Ors. v. The Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad and others: (1976) 1 SCC 292 ; Rourkela Shramik Sangh v. Steel Authority of India Ltd., and another: (2003) 4 SCC 317 and Himmat Singh v. State of Haryana and others: (2006) 9 SCC 256 . Therefore, when disputed questions are involved, this Court will not entertain the writ petition and adjudicate upon such dispute, as it is for the parties to approach the civil Court to decide the issue. However, in the event the order challenged in the writ petition is questioned on the ground of want of jurisdiction, certainly this Court would entertain the writ petition and particularly when such an order was passed when effective remedy is available before a civil Court for a person or persons who seek for cancellation of patta. As already pointed out, though the fourth Respondent has filed appeal to the Revenue Divisional Officer seeking for cancellation of patta, in view of the fact that the Revenue Divisional Officer cannot go into the civil dispute, his order cancelling the patta by deciding the disputed question of title is without jurisdiction. In this context, we may refer to the proviso to Section 14 of the Act which bars the suit. The proviso reads that if any person is aggrieved as to any right of which he is in possession by an entry made in the patta pass book under this Act, he may institute a suit against any person denying or interested to deny his title to such right of declaration of his right under Chapter VI of the Specific Relief Act and the entry in the patta pass book shall be amended in accordance with any such declaration. By that proviso, in the event any grievance is made by the fourth Respondent over the patta granted to the Appellant, he should have approached the civil Court for necessary orders. By that proviso, in the event any grievance is made by the fourth Respondent over the patta granted to the Appellant, he should have approached the civil Court for necessary orders. In the event the Revenue Divisional Officer had no jurisdiction to go into the disputed question of title and in spite of that fact if he decides the same, on the very same yardstick, the further remedy is only a revision under Section 13 of the Act which is limited to calling for and examining the records of either the Tahsildar or the appellate authority by the District Revenue Officer and such revisional power cannot be equated to appellate power. Hence, the contention of the fourth Respondent that the Appellant has got an effective remedy of appeal and without availing such remedy cannot file the writ petition, has no merit. Accordingly, the said contention is rejected. 19.) Nevertheless, the core question involved in the writ petition is as to whether in the given facts and circumstances of the case, it could be entertained in the event patta has been granted in favour of a particular individual. On the strength of the title or possession, if any other person makes an application to the Revenue Divisional Officer for cancellation of that patta and in the event both the individuals claim title over the property, the Revenue Divisional Officer cannot adjudicate such disputed questions and accepting the case of the other person, he cannot cancel the patta. The right course to be adopted by the Revenue Divisional Officer in such case is only to refer the applicant who has come before him seeking for cancellation of patta to civil Court, especially when his claim is disputed by the individual who is holding the patta granted by the competent authority. In the event the Revenue Divisional Officer by exceeding his jurisdiction decides the question of title and cancels the patta, certainly the aggrieved person can approach this Court by way of a writ petition on the ground that the Revenue Divisional Officer was not competent to go into the title. The question of alternative remedy is not available to the aggrieved person as for the very same reason the District Collector also cannot go into the disputed question regarding the title or possession, as the case may be, in the event an appeal is filed. The question of alternative remedy is not available to the aggrieved person as for the very same reason the District Collector also cannot go into the disputed question regarding the title or possession, as the case may be, in the event an appeal is filed. Another Division Bench of this Court in the decision reported in (C. Sabesan Chettiar (deceased) and others vs. The District Revenue Officer, Coimbatore District) 2011 5 CTC 241 also held that if the title is disputed, the parties must go befoe the Civil Court and the said remedy is available as per the provisions to Section 14 of the Tamil Nadu Patta Pass Book Act, 1983. Applying the ratio laid down by the Division Bench judgments of this Court mentioned supra, to the facts of the present case, the impugned orders are set aside and the writ petition is allowed with liberty to respondents 6 and 7 to approach the competent Civil Court to establish their right, if any, over the property in question. No costs.