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2019 DIGILAW 114 (KER)

Sunil v. Additional Thahasildar Kollam

2019-02-05

ALEXANDER THOMAS

body2019
JUDGMENT : ALEXANDER THOMAS, J. 1. The prayers in the above Writ Petition (Civil) are as follows: “i. To call for the records leading to Exhibit P7 complaint and Exhibit P8 report and direct the respondents 1 and 2 to act upon Exhibit P7 and P8 in accordance with the provisions of Transfer of Registry Rules, 1966 within a time limit to be specified by this Honourable Court. ii. To issue such other writ or order prayed for by the writ petitioner from time to time and found to be fit and proper to grant by this Honourable Court. ” 2. Heard Sri.A.Jani, learned counsel appearing for the petitioner and Smt.Priya Shanavas, learned Government Pleader appearing for the respondents. 3. It is stated that 10.50 cents of property comprised in Old Survey No.7559/1 of Thrikkadavoor Village, Kollam Taluk, Kollam Revenue District and a building situated thereon and an extent of 2 cents of property comprised in Old Survey No.7561 and an extent of 12 cents of property comprised in Old Survey No.7561 of the same Village and Taluk is the subject matter of the present writ petition. The petitioner traces his title through his paternal great grandfather Late Govindan who passed away in the year 1971 (1146 M.E.) at the age of 117. The petitioner is also stated to be one of the grand children of the said predecessor and that the petitioner claims to be in absolute possession and enjoyment of the subject property. That while the petitioner and his mother were so holding absolute and unopposed possession of property. Some of the other grand children of the said predecessor had secured two documents, viz Ext.P-1 registered sale deed No.1360 of 1985 dated 26.7.1985 and Ext.P-2 registered sale deed No.184 of 1982 dated 28.1.1982, both of Anchalumoodu SRO, and had instituted Ext.P-3 Original Suit O.S.No.593 of 1994 before the Sub Court, Kollam and had endeavored to obtain title and possession of subject property. In Ext.P-4 written statement filed in Ext.P-3 Original Suit O.S.No.593 of 1994, the writ petitioner had claimed title by adverse possession and that as per Ext.P-5 judgment dated 28.2.2003 rendered by the Sub Court, Kollam in O.S.No.593 of 1994, the legal validity of Exts.P-1 & P-2 deeds were found against the plaintiffs therein and that in paragraph 20 of Ext.P-5 judgment dated 28.2.2003 in Original Suit O.S.No.593 of 1994, the Sub Court, Kollam had also found that the petitioner is having absolute possession of the said property. Ext.P-5 judgment in the Original Suit was challenged by the defeated parties by preferring First Appeal as RFA.No.270 of 2004 before this Court and that this Court has now passed Ext.P-6 judgment dated 9.6.2016 dismissing RFA.No.270 of 2004, which according to the petitioner is in favour of the petitioner and against his rival claimants and that Ext.P-5 judgment has been upheld by this Court in Ext.P-6 judgment etc. 4. Thereafter the petitioner has preferred Ext.P-7 application dated 29.9.2016 before the 1st respondent Addl. Tahsildar, Kollam seeking grant of mutation in respect of subject property by invoking Rule 28 of the Transfer of Registry Rules which is in relation to claims of adverse possession and that in Ext.P-7 application, the 1st respondent Addl. Tahsildar had called for a report and Ext.P-8 report dated 19.11.2016 has been submitted by the 2nd respondent Village Officer before the 1st respondent Addl. Tahsildar in the said proceedings in Ext.P-7 application. The compliant of the petitioner is that after the submission of Ext.P-8 report dated 19.11.2016, no further effective action is forthcoming from the 1st respondent on the request made by the petitioner on Ext.P-7 application which was submitted as early as on 29.9.2016 under Rule 28 of the Transfer of Registry Rules, 1966. The compliant of the petitioner is that after the submission of Ext.P-8 report dated 19.11.2016, no further effective action is forthcoming from the 1st respondent on the request made by the petitioner on Ext.P-7 application which was submitted as early as on 29.9.2016 under Rule 28 of the Transfer of Registry Rules, 1966. The petitioner would point out that the 1st respondent is obliged by the provisions in the said Rules to act in accordance with the provisions contained therein more particularly Rules 3(c), 7(2), Form VIA, Rules 15 and 28 of the Transfer of Registry Rules, 1966 and it is in the light of these factual averments that the petitioner has filed the instant writ petition seeking essentially a direction to respondents 1 and 2 to consider the request in Ext.P-7 application and to take a decision thereon in accordance with the provisions contained in the Transfer of Registry Rules, 1966 within a reasonable time limit that may be fixed by this Court. 5. It is stated by the petitioner that the matter has been become final and conclusive after Ext.P-6 judgment and that no persons have challenged Ext.P-6 judgment rendered by this Court in RFA.No.270/2004. The specific query raised by this Court as to who all are the parties could be affected if a decision is taken in favour of the petitioner as sought for in Ext.P-7 application. Sri.A.Jani, learned counsel appearing for the petitioner would submit on the basis of instructions of party that the rival claimants in the petition, the appellants in Ext.P-6 and some others would be the persons who would be directly affected by the prayers sought for by the petitioner in Ext.P-7 application. The petitioner may also file an appropriate application in Ext.P-7 to ensure that such directly affected persons are arrayed as respondents in the above Ext.P-7 proceedings. If that be so, the petitioner will have to immediately file a statement before the 1st respondent Addl. The petitioner may also file an appropriate application in Ext.P-7 to ensure that such directly affected persons are arrayed as respondents in the above Ext.P-7 proceedings. If that be so, the petitioner will have to immediately file a statement before the 1st respondent Addl. Tahsildar giving the names and particulars and addresses of all the persons who are directly affected by the request made by the petitioner in Ext.P-8 and also should state the details of the basis of the civil litigation as to how those parties have adversary interest to the petitioner and upon receiving such statement, the 1st respondent will immediately ensure that all the persons who are directly affected by the petitioner's request in Ext.P-7 should be given notices. Thereafter the petitioner may make detailed written submission in the matter and may make available relevant materials like the documents produced herein, more particularly the civil litigative proceedings and the orders and judgments/decrees rendered therein as in Exts.P-5 & P-6, etc. 6. After issuing notices to the affected persons, the 1st respondent Addl. Tahsildar will give reasonable opportunity to all such persons concerned to submit their written submissions/versions in the matter and thereafter the 1st respondent Addl. Tashildar will grant reasonable opportunity of being heard to the petitioner and all such directly affected persons and then will pass orders on Ext.P-7 application in accordance with the provisions contained in the Transfer of Registry Rules, 1966. 7. Having regard to the fact that Ext.P-7 application has been filed as early as on 29.9.2016, the 1st respondent Addl. Tahsildar will ensure that the entire exercise in this regard so as to finalise the request made by the petitioner in Ext.P-7 application is made without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.