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2016 DIGILAW 83 (MAD)

R. Senthilkumar v. S. M. Kesavan

2016-01-06

P.R.SHIVAKUMAR, V.S.RAVI

body2016
JUDGMENT : P.R. SHIVAKUMAR, J. This writ appeal has been preferred against the order of the learned Single Judge, dated 22.07.2013, made in W.P.(MD).No.11645 of 2013. The above said writ petition was preferred by the first respondent herein. The appellant in the writ appeal was not a party in the above said writ petition. Hence, with leave of the Court, the appellant has preferred the present writ appeal. 2. The prayer made in the writ petition is for the issue of a Writ or order or direction in the nature of a Writ of Mandamus directing the Tahsildar, Peravurani Taluk, Thanjavur District and the Surveyor, Peravurani Taluk, Thanjavur District / respondents 2 and 3 in the writ appeal to measure the first respondent's property situated at Nattanikottai Village, Peravurani Taluk, Thanjavur District in Survey Nos.52/2B1A and 52/2B1C. Such a prayer came to be made based on the allegation that though the first respondent paid necessary fees for the measurement and sub division of those properties, the respondents 2 and 3 did not act on the request made by the first respondent. The writ petition came to be heard and disposed of by a learned Singe Judge of this Court on 22.07.2013 granting a direction as prayed for by the first respondent herein. 3. Claiming to be the owners of an extent of 45 cents forming part of Survey No.52/2A, the appellant in the writ appeal and one Andal filed a suit in O.S.No.112/2011 on the file of the District Munsif Court, Pattukkottai against the first respondent in the writ appeal and several other persons, contending that the defendants therein were trying to take the property abutting the road, whereas they were entitled to a portion on the North Western corner of Survey No.52/2A. Based on such averment, the plaintiff therein had prayed for the following reliefs:- “(a) declaring that the sale deed dated 03.01.1994 in favour of the 6th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (b) declaring that the sale deed dated 12.09.1994 in favour of the 7th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (c) declaring that teh sale deed dated 04.06.1994 in favour of the 8th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (d) declaring that the sale deed dated 15.10.1997 in favour of the 9th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (e) declaring that the settlement deed dated 28.11.2003 in favour of the 10th defendant executed by the 1st defendant's mother Sundarathammal who died subsequently with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (f) declaring that the sale deed dated 29.03.2004 in favour of the 11th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (g) declaring that the sale deed dated 15.09.1994 in favour of the 12th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (h) declaring that the sale deed dated 08.09.2004 in favour of the defendants 13 & 14 executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (i) declaring that the sale deed dated 02.11.2006 in favour of the 15th defendant executed by the 12th defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (j) declaring that the sale deed dated 02.11.2006 in favour of the 16th defendant executed by the 12th defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (k) declaring that the sale deed dated 04.11.2009 in favour of the 17th defendant executed by the 16th defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (l) declaring that the sale deed daated 08.09.2010 in favour of the 18th defendant executed by the 2nd defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (m) declaring that the sale deed daated 02.01.2009 in favour of the 19th defendant executed by the 1st defendant with reference to the suit property is null and void from abinitio and not binding on the plaintiffs and the 21st defendant; (n) declare that the survey sub divisions made by the defendants 3 to 5 at the instance of the defendants 1, 2 and 6 to 19 with reference to the suit property are null and void from abinitio and not binding on the plaintiffs and 21st defendant; and (o) permanent prohibitory injunction in favour of the plaintiffs and 21st defendant restraining the defendants and their men in any way interfering with the plaintiffs' peaceful possession and enjoyment of the suit property.” 4. While the said suit was pending, the first respondent chose to file the above said writ petition in W.P.(MD).No.11645 of 2013. It is the contention of the learned counsel for the appellant that the first respondent could have worked out his remedy in the suit. But, without adopting the said course open to him and with a view to curtail the scope of the civil proceedings in the suit, the first respondent chose to file the writ petition without making the plaintiffs in the said suit as parties and obtained a direction behind their back. 5. Mr.Alagudevan, learend Special Government Pleader, submits that pursuant to the impugned order passed in the writ petition, the properties were measured and the boundaries of Survey No.52/2B1A and 52/2B1C were fixed. He has also produced a copy of the letter dated 05.12.2013 addressed by the Tahsildar, Peravurani Taluk to the Registrar, High Court, Madurai Branch, Madurai intimating the compliance of the order. Relying on the said letter, the learned Special Government Pleader wants to contend that since the order has been complied with, the writ appeal itself has become infructuous. 6. The learned counsel for the first respondent would submit that the property, which is the subject matter of the suit filed by the appellant and another person in O.S.No.112 of 2011 on the file of District Munsif Court, Pattukkottai, is different from the properties whose boundaries were sought to be fixed by obtaining a direction in W.P.(MD).No. 11645 of 2013 and that hence, the writ appeal should be dismissed. 7. We paid our anxious consideration to the above said submissions made on behalf of the appellant, on behalf of the first respondent and also on behalf of the respondents 2 and 3. 8. It is a fact not in dispute that in O.S.No.112/2011 on the file of the District Munsif Court, Pattukkottai, a civil case came to be filed challenging certain transactions and even the sub divisions made in respect of Survey No.52/2A. It is also an admitted fact that the first respondent is a party defendant to the said suit. The suit came to be filed two years prior to the filing of the writ petition in which the impugned order came to be passed. It is also an admitted fact that the first respondent is a party defendant to the said suit. The suit came to be filed two years prior to the filing of the writ petition in which the impugned order came to be passed. It is also obvious from the particulars found in the typed set of papers that the first respondent herein filed a written statement in the said suit on 12.01.2012 itself. Only thereafter the first respondent chose to file W.P.(MD).No. 11645 of 2013 seeking a direction for measurement of the properties mentioned therein and in fact the prayer does not include a prayer for direction to fix the boundaries. For the sake of convenience, the prayer in the writ petition is extracted hereunder: “For the reasons stated in the accompanying affidavit, it is most respectfully prayed that this Hon'ble Court may be pleased to issue Writ or Order or Direction in the nature of Writ of Mandamus, directing the respondents to measure the petitioner's property situate at Nattanikottai Village, Peravurani Taluk, Thanjavur District in Survey Nos.52/2B1A and 52/2B1C and pass such further or other orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.” 9. When there was a dispute regarding not only the boundaries but also the location of the portion claimed by the first respondent, he could have very well worked out his remedy in the suit itself, by seeking an appointment of a Commissioner to measure the property or for appointment of the Taluk Surveyor himself as the Commissioner to measure the property, fix the boundaries and submit a report regarding the same. Instead of doing it, the first respondent has chose to rush to this Court with the writ petition and obtained an order behind the back of the appellant herein and Andal, who had filed the suit in O.S.No.112 of 2011 as plaintiffs. The shortcut method adopted by the appellant to bypass the regular remedy in the civil Court cannot be countenanced. Since measurement has already been made and boundaries of the particular sub-division have been fixed by the survey authorities, of-course pursuant to the direction of this Court, we cannot totally ignore and nullify the same. The shortcut method adopted by the appellant to bypass the regular remedy in the civil Court cannot be countenanced. Since measurement has already been made and boundaries of the particular sub-division have been fixed by the survey authorities, of-course pursuant to the direction of this Court, we cannot totally ignore and nullify the same. Even without such a direction from the High Court in the writ petition, the Revenue authorities could have done it on the request made by the person, who claims to be the pattadhar of the properties. However, such measurement and the fixation of boundaries made by the survey authorities especially pending disposal of a suit, wherein the very same dispute has arisen, will not have the effect of taking away the power of the Civil Court to deal with the matter. As such the relief sought for can be moulded by making it clear that neither the order passed by the High Court in the writ petition, nor the measurements made by the revenue authorities pursuant to the said order will be an impediment for the civil Court to decide the dispute that has arisen in the civil suit and that the civil Court shall decide the matter on its own merits. The sub-division made and measurement taken pursuant to the impugned order passed in the writ petition shall be subject to the result of the civil suit in O.S.No.112 of 2011 on the file of the Court of District Munsif, Pattukkottai. 10. Accordingly, the writ appeal is disposed of, with the above observation and clarification. No costs.