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2019 DIGILAW 69 (MAD)

D. Rajamanickam v. M. Pasupathiammal

2019-01-03

C.SARAVANAN, S.S.SUNDAR

body2019
JUDGMENT : S.S. SUNDAR, J. PRAYER: Writ Appeal is filed under clause 15 of Letter Patent Act, to set aside the order passed in W.P.(MD)No.2614 of 2010 dated 20.12.2013. This Writ appeal is filed against the order made in W.P.(MD) No.2614 of 2010 dated 20.12.2013 by the Learned Single Judge of this Court. 2. The respondents 4, 6 and 7 in WP(MD) No.2614 of 2010 are the appellants in this writ appeal. 3. Brief facts, which are necessary for the disposal of the writ appeal, are as follows : The 1st respondent herein filed the writ petition in W.P.(MD)No.2614 of 2010 challenging the order passed by the 2nd respondent herein namely, the District Revenue Officer, dated 08.01.2010 confirming the order passed by the 2nd respondent namely, the Revenue Divisional Officer, dated 24.04.2004. The subject matter of the writ petition is in relation to issuance of patta, in respect of the land comprised in Survey No.45/1. During UDR patta No.534 was issued in the name of the 1st respondent, who is the wife of one Marimuthu. One Arockiyam and the 1st appellant in this Writ appeal preferred an appeal as against the order granting patta in respect of the disputed land in favour of the 1st respondent. The Revenue Divisional Officer by order dated 24.04.2004 allowed the appeal and cancelled the patta that was granted in favour of the 1st respondent by the Tahsildar in respect of S.No.45/1C1. The Revenue Divisional Officer recorded a finding that mutation of revenue records in the name of the 1st respondent was without any basis or any basic document and that the order of the Tahsildar granting patta and effecting sub division in favour of the 1st respondent, in respect of an extent of 1.17 acres in Survey No.47/1C1 at Karadipatty Village is erroneous and unsustainable. Aggrieved by the same, the 1st respondent herein preferred an appeal before the District Revenue Officer. The District Revenue Officer has passed an order dated 08.01.2010 confirming the order of the Revenue Divisional Officer dated 24.04.2004. As against the same, the Writ petition came to be filed. The 2nd respondent herein namely, the District Revenue Officer confirmed the order of the Revenue Divisional Officer and dismissed the revision petition filed by the 1st respondent. The District Revenue Officer has passed an order dated 08.01.2010 confirming the order of the Revenue Divisional Officer dated 24.04.2004. As against the same, the Writ petition came to be filed. The 2nd respondent herein namely, the District Revenue Officer confirmed the order of the Revenue Divisional Officer and dismissed the revision petition filed by the 1st respondent. The 2nd respondent also gave liberty to the 1st respondent herein, to approach the Civil Court for appropriate relief, in case she has any grievance against the order of the Revenue Authorities. Aggrieved by the same, the 1st respondent preferred the writ petition in W.P.(MD) No.2614 of 2010. 4. It is to be noted that the 1st respondent herself has admitted that she is in adverse possession of the property in dispute and that she had become the owner by adverse possession. It is the case of the 1st respondent that after entering into the property in dispute she had been in peaceful possession and enjoyment of the property. 5. In the affidavit filed in support of the writ petition in W.P.(MD) No.2614 of 2010, the 1st respondent has stated as follows : “3. I submit that I am in adverse possession in the said property during the year 1986. I had become its owner by adverse possession. After entering into the same property, I have been in peaceful possession and enjoyment of the said property. After the limitation period of adverse possession, I have applied patta for the said property and I have obtained patta pass book in my name and I have been paying public taxes to the concerned authority for the said property. Now I am in peaceful possession and enjoyment of the same till date. I submit that while facts being so, the 4th and 5th respondents claiming title falsely over the said property filed appeal after lapse of 8 years before the 2nd respondent herein against order of granting patta to me by the 3rd respondent. The said facts came to know that the 4th and 5th respondents have tried to disturb in my peaceful possession.” 6. The main contention raised by the 1st respondent herein in the writ petition was that the 2nd respondent had passed an order in violation of principles of natural justice without issuing any notice before passing the order. The said facts came to know that the 4th and 5th respondents have tried to disturb in my peaceful possession.” 6. The main contention raised by the 1st respondent herein in the writ petition was that the 2nd respondent had passed an order in violation of principles of natural justice without issuing any notice before passing the order. It was also submitted that the points raised by the 1st respondent was not at all considered by the 2nd respondent while passing the impugned order. 7. The other submission made by the 1st respondent herein was that the name of the 1st respondent was entered in the revenue records under UDR scheme and that the respondents 2 and 3 failed to notice that no appeal had been filed by the appellants herein within a reasonable time. Since the name of the first respondent was entered in the revenue records even in the year 1986 and the claim of adverse possession was acknowledged by the Tahsildar by issuing separate patta subdividing the disputed property, it was further submitted by the first respondent that the respondents 4 and 5 in the writ petition ought to have been directed to approach the Civil Court to establish their rights instead of directing the 1st respondent herein to approach the Civil Court. The learned Single Judge found that the 1st respondent’s name was registered in the revenue records as pattadhar long back. The learned Judge further held that the Revenue Officials ought to have directed the contesting respondents in the writ petition and the appellants in the writ appeal to go before the civil Court. It is to be noted that the validity of the order passed by the respondents 2 and 3 herein namely, the District Revenue Officer and the Revenue Divisional Officer was challenged mainly on the ground that the respondents 2 and 3 have decided the matter by going into the disputed questions of facts which are to be resolved by the Civil Court. It is only by accepting the said submission of the learned Counsel appearing for the first respondent and the precedents cited on behalf of the first respondent herein, the order impugned in the writ petition was set aside by the learned Single Judge. 8. It is only by accepting the said submission of the learned Counsel appearing for the first respondent and the precedents cited on behalf of the first respondent herein, the order impugned in the writ petition was set aside by the learned Single Judge. 8. The learned Single Judge has placed reliance on the Division Bench Judgment of this Court reported in 2011 (5) CTC 94 in the case of Vishwas Footwear Company Ltd., Vs. The District Collector, Kancheepuram and 4 others, wherein the Division Bench has directed the person who applied before Revenue Divisional Officer for cancellation of patta standing in the name of appellant therein to approach the civil Court to establish their title by observing that the Revenue Officials cannot decide the question of title and it is the civil Court which is competent to decide title. Applying the view expressed by the Division Bench of this Court in 2011 (5) CTC 94 , the learned Single Judge has held that the impugned orders passed by the Revenue Divisional Officer and the District Revenue Officer are liable to be set aside. The writ petition was therefore, allowed by the learned Single Judge by setting aside the order passed by the 2nd respondent confirming the order passed by the 3rd respondent. However, liberty was given to the appellants who are the contesting respondents in the writ petition to approach the civil Court to establish their rights. It is to be seen that in the case of Vishwas Footwear Company Ltd., Vs. The District Collector, Kancheepuram and 4 others reported in 2011 (5) CTC 94 , it has been held that in case the Revenue Officials exceed their jurisdiction by deciding the question of title or by cancelling patta, this Court can entertain a writ petition. It was a case where patta standing in the name of appellant’s predecessor in interest was cancelled by the Revenue Official by deciding the question of title. Though the Writ Petition challenging the order of the Revenue Officials was dismissed, on appeal, a Division Bench of this Court set aside the order of the Revenue Officials and gave liberty to the contesting respondents in the Writ Appeal to approach the Civil Court. 9. The fact in the present case are as follows:- The appellants claim right, title and interest in respect of disputed property through one Muthu Rakkammal. 9. The fact in the present case are as follows:- The appellants claim right, title and interest in respect of disputed property through one Muthu Rakkammal. It is admitted by the learned Senior Counsel appearing for the 1st respondent that the said Muthu Rakkammal had purchased the property under two different documents and that the total extent purchased by the said Muthu Rakkammal is only 1.71 acres out of 2.57 acres. It is also stated by the 1st respondent that the said Muthu Rakkammal sold the entire property purchased by her. It is the further contention of the learned Senior Counsel appearing for the 1st respondent that the property which is in dispute was originally registered as a property belong to the Government before settlement. 10. The learned Senior Counsel relied upon the communication received from the Tahsildar of Madurai North Taluk to the Government Pleader regarding the classification, ownership and extent of lands in Survey No.45 before resurvey and resettlement and after UDR. It is seen that the entire extent of 2.57 acres was registered in the name of Muthu Rakkammal as per the revenue records before UDR. It is also admitted that as per adangal prepared in the year 1985, Muthu Rakkammal was shown as owner of the property to an extent of 0.85 acres in Survey No.45/1A and 1.39 acres in Survey No.45/1C. For the first time, as per the revenue records prepared after UDR the name of the 1st respondent was included in respect of Survey No.45/1C1 measuring to an extent of 0.47.5 Hectares equivalent to acre 1.17 cents. The dispute is with regard to the entry during UDR including the name of the 1st respondent as pattadhar for the land measuring an extent of 1.17 acres in Survey No.45/1C1. The 1st respondent herself has admitted in the affidavit filed in support of the writ petition that she claims ownership over the total extent of land in Survey No.45/1C1 by adverse possession. 11. It is further stated by the learned Senior Counsel before this Court that the land in Survey No.45 was originally classified as sarkar poromboke and therefore, the Government is the owner of the property. 11. It is further stated by the learned Senior Counsel before this Court that the land in Survey No.45 was originally classified as sarkar poromboke and therefore, the Government is the owner of the property. Since the revenue records namely, Re-survey and the Settlement Register before UDR categorically shows the ownership of the property in Survey No.45/1 by the Government, it is stated that the subsequent entries in the revenue records recognising Muthu Rakkammal, the predecessor in interest of appellant as owner and pattadhar of the property are erroneous, improper. It is further submitted that based on such wrong entries in revenue records before UDR, the entry of the 1st respondent’s name in the revenue records as registered land owner in respect of Survey No.45/1C1 has been erroneously cancelled. It is to be noted that the Government never claimed any title for any portion of the land in the present proceedings. Immediately after settlement and before UDR the title of Muthu Rakkammal to an extent of 2.57 acres out of Survey No.45/1 was recognised and the entire land in Survey No.45/1 was registered in the name of Muthu Rakkammal. The Government had no claim as against the said Muthu Rakkammal anytime, after or before UDR. Hence, this Court is more concerned about the legality or authenticity of the entry of the 1st respondent’s name in the revenue records during UDR as pattadhar in respect of an extent of 1.31 acres in Survey No.45/1. The respondents 2 and 3 have recorded a categorical finding that the 1st respondent has not produced any records to prove or establish the ownership of any portion of the property. In the said circumstances, the entry of the 1st respondent’s name should be held to be improper and not authenticated either under Tamil Nadu Patta Pass Book Act, 1983 or by referring to any other provisions of the revenue standing orders. The claim of the 1st respondent that she had prescribed title by adverse possession against the appellants and others can be considered only by the civil Court. It is not within the jurisdiction of the revenue authorities either under Tamil Nadu Patta Pass Book Act, 1983 or under UDR scheme to change or effect mutation in the revenue records, based on mere statement of any individual claiming title by adverse possession. It is not within the jurisdiction of the revenue authorities either under Tamil Nadu Patta Pass Book Act, 1983 or under UDR scheme to change or effect mutation in the revenue records, based on mere statement of any individual claiming title by adverse possession. In the present case without any document or material the name of the 1st respondent was entered in the revenue records for the first time during UDR. When the entry of the 1st respondent’s name is not authorised either under Tamil Nadu Patta Pass Book Act, 1983 or under any other provisions of the revenue standing orders, this Court is unable to sustain the claim of the 1st respondent based on the sole entry in UDR. 12. The learned Senior Counsel appearing for the 1st respondent has advanced an argument that the respondents 2 and 3 have not considered the claim and passed an order impugned in the writ petition without even recording the submission of the 1st respondent or the materials produced before the 2nd and 3rd respondents. It is surprising to note that the 1st respondent has not produced any material or document even before this Court to sustain her claim of title. When the 1st respondent claims title by adverse possession, without any document, it is not within the jurisdiction of the revenue authorities to consider the application for patta. It is not in dispute that no notice was issued to the persons, whose name was found in the records before granting patta to the first respondent. The Division Bench of this Court in the case of Vishwas Footwear Company Ltd., Vs. The District Collector, Kancheepuram and 4 others reported in 2011 (5) CTC 94 has held that the revenue officials have no jurisdiction to go into the disputed question of title. That was a case, where the Revenue Divisional Officer had cancelled the patta based on the subsequent, sale deed obtained by the applicant from a person whose name was not there in the revenue records. It is held that the Revenue Officials cannot consider the rival claims, as any dispute regarding title, can be resolved only by a competent civil Court, which has jurisdiction to entertain such Civil dispute for adjudication. It is held that the Revenue Officials cannot consider the rival claims, as any dispute regarding title, can be resolved only by a competent civil Court, which has jurisdiction to entertain such Civil dispute for adjudication. After referring to Sections 10 and 14 of Tamil Nadu Patta Pass Book Act, 1983, the Division Bench has found that the Revenue Divisional Officer who had allowed the application for cancellation of patta had no jurisdiction to go into the disputed the title and in such a case, where the Revenue Divisional Officer or any other authority under Tamil Nadu Patta Pass Book Act, 1983, if decides the question of title for the purpose of mutation of records, it is held that a person who is aggrieved by an unauthorised entry in revenue records can file a writ petition and that the writ petition cannot be dismissed on the ground of availability of alternative remedy. 13. The judgment of Division Bench of this Court cited by the learned Senior Counsel appearing for the first respondent is therefore, a precedent which does not help his argument. The learned Single Judge without considering the vital fact that inclusion of the first respondent’s name in unauthorised and contrary to the provision of Tamil Nadu Patta Pass Book Act, 1983, has erroneously allowed the writ petition on the ground that the person aggrieved can only approach the civil Court. In this case the revenue records prior to UDR do now show the name of the first respondent as owner or person in possession. After the advent of Tamil Nadu Patta Pass Book Act, 1983, no mutation of revenue record can take place unless the ingredients of Section 10 are satisfied. The first respondent is not claiming title by succession or by transfer or by virtue of a declation of civil Court. In that view of the matter, this Court find merits in this appeal. The appellants have raised their claim of title based on sale deeds obtained from the original pattadhar. It is admitted that the land had been sold out to several third parties. The first respondent herself has purchased 3 plots from a person who had purchased the said plots from one Sengole. The said Sengole had purchased from Muthu Rakkammal. The first respondent has sold some property by showing the same as her ancestral. It is admitted that the land had been sold out to several third parties. The first respondent herself has purchased 3 plots from a person who had purchased the said plots from one Sengole. The said Sengole had purchased from Muthu Rakkammal. The first respondent has sold some property by showing the same as her ancestral. Hence, the first respondent’s claim that she had prescribed title by adverse possession is not acceptable and there is no explanation for there contradictions. Having regard to the facts narrated above, this Court is inclined to allow the writ appeal and set aside the order of the learned Single Judge. The order of the respondents 2 and 3 impugned in the writ petition stands restored, however, liberty is given to the 1st respondent to approach the Civil Court to establish her right, title, interest and possession. It is also open to the 1st respondent to approach the Revenue Authorities for change or mutation of revenue records in case the civil Court declares the title of the 1st respondent. 14. As a result, the order of the learned Single Judge of this Court challenged in this appeal is set aside and the writ appeal filed by the appellant is allowed. The writ petition in W.P.(MD)No.2614 of 2010 stands dismissed. No Costs…