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2012 DIGILAW 3733 (MAD)

D. Srinivasan v. K. Gowri

2012-08-29

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Judgment :- ElipeDharma Rao, J. 1. This writ appeal is directed against the order, dated 06.11.2009, made in W.P.No.22653 of 2009, whereby the direction sought for by the petitioner/first respondent herein to direct the first respondent therein to consider her representation, dated 03.08.2009, was granted and the first respondent therein, who is the second respondent herein, was directed to consider the said representation within a period of twelve weeks from the date of receipt of a copy of that order. 2. It is the case of the appellant that he purchased a property measuring an extent of 0.04.5 hectares of land in S.No.36/1A2 in Gerugambakkam Village, Sriperumbudur Taluk, Kancheepuram District, by way of a registered sale deed dated 30.09.1994 and immediately, after purchase of the said land, patta was issued in his favour by the second respondent in RPT 3094/94-95 and thus, the appellant has been in possession and enjoyment of the said property ever since the date of his purchase. It is also the case of the appellant that when he approached the Oriental Bank of Commerce for availing loan, the said Bank insisted for computerized patta for the aforesaid lands for approving his title and when the appellsant approached the second respondent for getting computerized patta, he was informed that the patta issued in his favour was cancelled and a fresh patta was issued in favour of the writ petitioner bearing Patta No.1796 in RPT No.2398/1416 dated 06.07.2006. 3. It is also the case of the appellant that he issued a legal notice to the second respondent enclosing all the copies of title deeds and the other relevant documents on 30.11.2006 and thereafter, the second respondent restored the patta issued in his favour as per patta No.666. It is the further case of the appellant that when the first respondent attempted to interfere with his possession, he filed a civil suit in O.S.No.290 of 2006 on the file of the District Munsif Court, Tambaram, wherein he had obtained an order of interim injunction restraining the first respondent from in any manner interfering with his peaceful possession and enjoyment of the said property and later, the said suit was transferred to the file of District Munsif Court, Sriperumbudur. It is also the case of the appellant that the first respondent filed a suit in O.S.No.28 of 2007 as a counter blast to the suit filed by him and obtained interim injunction, against which, the appellant filed an appeal and the same is pending consideration. 4. It is the further case of the appellant that the first respondent seemed to have purchased another extent of land in S.No.36 Part in the year 2006 vide a registered sale deed dated 15.05.2006 and a perusal of the schedule in the plaint filed in O.S.No.28 of 2007 would clearly show that the property purchased by the first respondent is entirely different from that of the appellant. 5. It is the grievance of the appellant that if the first respondent is aggrieved by the order of the second respondent in issuing patta in his favour, she ought to have filed an appeal under the provisions of the Tamil Nadu Patta Pass Book Act, 1986 and the Rules framed thereunder and instead of doing so, she invoked the jurisdiction of this Court under Article 266 of the Constitution of India by filing W.P.No.22653 of 2009. 6. The learned single Judge, taking into consideration the limited prayer sought for by the writ petitioner, viz., to issue a direction to the Tahsildar to consider her representation, disposed of the writ petition directing the Tahsildar, Sruiperumbudur Taluk, to consider and pass appropriate orders on the representation of the writ petitioner, after following the procedure contemplated under the relevant Rules and after affording opportunity to all the parties concerned within a period of twelve weeks from the date of receipt of a copy of that order. Aggrieved by the said order, the present writ appeal has been filed. 7. We have heard the learned counsel for the appellant and the learned Special Government Pleader appearing for the second respondent. Though the matter is listed on 28.08.2012, on that day, there was no representation for the first respondent and hence, the matter was posted today under the caption 'for orders' and even today, when the matter is called, there is no representation on behalf of the first respondent either in person or through Counsel. 8. Though the matter is listed on 28.08.2012, on that day, there was no representation for the first respondent and hence, the matter was posted today under the caption 'for orders' and even today, when the matter is called, there is no representation on behalf of the first respondent either in person or through Counsel. 8. In the above circumstances, after hearing the learned counsel for the appellant and the learned Special Government Pleader appearing for the second respondent, we are of the considered opinion that the order passed by the learned single Judge, which is impugned in this writ appeal, is not a reasoned order on the ground that the Tahsildar, who issued patta, has no power to review his own order and there is hierarchy of authorities available as per the Land Encroachment Act. 9. Further, it is contended by the learned counsel for the appellant that when the first respondent has got an alternative and efficacious remedy by way of filing appeal, she could not invoke the jurisdiction of this Court under Article 226 of the Constitution of India and the second respondent has no statutory or public duty to consider the representation of the first respondent, since, on a perusal of the said representation, it would clearly show that she wanted the Tahsildar to go into the question of title and consequently to cancel the patta issued in favour of the appellant. It is further contended that time and again, this Court has been pleased to hold that the revenue officials cannot decide the question of title and only a Civil Court can go into the question of title and without considering the said fact, the order, which is impugned in this writ appeal, has been passed and hence, the said order is liable to be set aside. 10. On going through the entire materials placed on record, it is seen that aggrieved by the order passed by the learned single Judge in disposing of the writ petition at the admission stage, which is filed by the first respondent seeking a direction, directing the first respondent therein to dispose of the writ petitioner's representation dated 03.08.2009 in accordance with law after following the procedure contemplated under the relevant rules and after affording reasonable opportunity to both the parties, the present writ appeal has been filed. 11. 11. It is also seen from the perusal of the materials that the first respondent is the owner of the land measuring 4970 sq.ft. comprised in S.No.36 of Gerugambakkam Village, Sriperumbudur Taluk, Kancheepuram District and further extent of 2441.5 sq.ft. comprised in S.No.36, totally measuring 7412 sq.ft. (17 cents) and she has purchased the same under two sale deeds dated 15.05.2006 bearing Documents Nos.1832 and 1831 of 2006 on the file of Sub Registrar's Office, Pammal. It is further seen from the perusal of the materials that originally, a larger extent of land measuring 2.05 acres comprised in S.No.36 of Gerugambakkam Village was owned and possessed by one Mr.Govinda Reddiar, who purchased the same under a registered sale deed bearing Document No.2293 of 1959 on the file of the Sub Registrar's Office, Pallavaram and after his demise, his wife Smt.Jayammal and her six children had jointly sold 17 cents out of 2.05 acres to one Abdul Khader under a registered sale deed bearing Document No.4271 of 1988 and further sold 76.5 cents to one S.Kannan and others and also sold 75.5 cents to one Muthulakshmi and others, by retaining 36 cents of land with her. 12. It is also seen from the perusal of the materials that the abovesaid Abdul Khader had sold 11.40 cents out of 17 cents to Smt.C.Gowri under a registered sale deed bearing document No.1756 of 1991 and sold the remaining extent of 5.60 cents to one A.T.Karuppaiah under a registered sale deed bearing Document No.1757 of 1991 and both of them had separately sold their respective extent of land totally measuring 17 cents to the first respondent herein under two sale deeds bearing Document Nos.1831 and 1832 of 2006 on the file of the Sub Registrar's Office, Pammal and by virtue of the said purchase, the first respondent had obtained Patta in Patta No.1796 dated 30.08.2006 from the second respondent and ever since the date of purchase, the she has been in possession of the said property. 13. 13. According to the first respondent, the appellant is claiming right over her property under a fraudulent sale deed, dated 30.09.1994, which is created by him for the above said property, on the basis of which, the second respondent has issued patta in his favour on 12.12.2006 to an extent of 4.5 acres of land in Survey No.36/1A2 and hence, she filed O.S.No.28 of 2007 on the file of the District Munsif Court, Tambaram and obtained an order of interim injunction, against which, the appellant has filed an appeal in C.M.A.No.19 of 2007 and the same is pending consideration before the Subordinate Court, Chengalpattu. According to the first respondent, even now, she is possession of the said 17 cents of land. 14. It is pertinent to point out at this stage that for the very same extent of the land comprised in the very same survey number, referred to above, the same Tahsildar had issued two different pattas, when he has no jurisdiction to review his own order. 15. In the above circumstances, the first respondent sent a representation to the second respondent dated 03.08.2009 and when the same was not considered, she has approached this Court by filing W.P.No.22653 of 2009 seeking the prayer, referred to above. 16. Though an innocuous prayer has been made by the writ petitioner/first respondent to dispose of the representation, which is pending consideration before the Tahsildar/second respondent herein, the learned single Judge granted the relief, against which, the present writ appeal is filed contending that when there are disputed questions of facts involved in this case with regard to title over the property in question and grant of patta, the learned Judge ought not to have passed the order in the absence of the appellant and if the order passed by the learned single Judge is complied with by the Tahsildar, it is detrimental to the interest of the appellant. 17. 17. As seen from the averments and contentions as well as the facts and circumstances of the case, we are of the considered opinion that inasmuch as there are disputed questions of facts involved in this case, the learned Judge should not have entertained the writ petition and passed the impugned order in view of the fact that the second respondent, who granted patta in favour of the first respondent/writ petitioner, has no power to reconsider the matter and it is only the Appellate Authority under Section 12 and thereafter, the Revisional Authority under Section 13 of the Land Encroachment Act, 1905 to decide the matter and this is the hierarchy of authorities created under the Act. The first respondent/writ petitioner, instead of approaching them for redressal of her grievance, straight away approached this Court, more so, when the suit is filed by her against the appellant is pending consideration before the Civil Court and in our opinion, the very relief sought for in the writ petition should have been made before the District Munsif in the suit for consideration and passing appropriate order. 18. Therefore, for the aforesaid reasons, we consider it appropriate that the learned single Judge should not have entertained the writ petition and passed the order, which is impugned in this writ appeal, when the writ petitioner herself brought to the notice of the Court about the pendency of the suit between the parties with regard to title over the suit schedule property and grant of patta, more so, in the absence of the appellant, who is the aggrieved party. Hence, the order passed by the learned single Judge is liable to be set aside and it is, accordingly, set aside. 19. In the result, the writ appeal is allowed. Connected M.P. is closed. However, there will be no order as to costs.