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2025 DIGILAW 341 (KER)

THOMAS S/o. MATHUNNI v. STATE OF KERALA

2025-02-20

VIJU ABRAHAM

body2025
JUDGMENT : 1. In W.P.(C)No.21688 of 2022 the petitioner would contend that the petitioner, as one of the legal heirs of his father late Mathunni, has obtained 3.28 Acres of land as per partition deed executed in the year 1992 and property tax in respect of the said property was accepted till 2014. Later it was found that survey numbers of the petitioner's property was stated wrongly in the revenue records and the property covered by Exts.P1 and P2 sale deeds whereby the property was obtained by the petitioner and his predecessors, were assigned to some other persons, especially to the respondents 7 to 10. Thereupon the petitioner submitted a request for survey and demarcation of the property and consequently this Court by Ext.P8 judgment in W.P.(C) No.1195/2022, issued a direction to the authority to conduct a survey of the property covered by Exts.P1 and P2 and to take a decision after hearing the parties concerned. It is the case of the petitioner that without taking further action pursuant to Ext.P8, the respondents have started construction of a mud road from the public road with an intention to excavate/remove of soil from the property, even without getting permission from the geologist or from any other competent authority. In this writ petition there was an interim order directing respondents 4 to 6 to take steps to desist respondents 7 to 10 from constructing mud road in the disputed property. W.P.(C) No.30060 of 2023 is filed challenging Ext.P17 order issued after the survey was conducted as directed in Ext.P8 Judgment produced in W.P.(C) No.201688 of 2022. 2. As stated earlier, the grievance raised by the petitioners is that tax in respect of their property was not received by the authorities after 2014 and the property covered by Exts.P1 and P2 are in another survey number and that the entire property in survey Nos.109 and 110 were assigned to some other persons, especially to respondents 7 to 10 and the petitioners have made several requests for demarcation and survey of the property. Subsequently by Ext.P8 judgment produced in W.P.(C) No.21688 of 2022, this Court directed the Tahsildar(LR) to hear both sides and take a decision as to the survey to be conducted on the property covered by Exts.P1 and P2. Subsequently by Ext.P8 judgment produced in W.P.(C) No.21688 of 2022, this Court directed the Tahsildar(LR) to hear both sides and take a decision as to the survey to be conducted on the property covered by Exts.P1 and P2. It is seen that in compliance with the directions issued by this Court, the survey was conducted and Ext.P16 report and sketch was prepared and based on the same the Tahsildar(LR) has issued Ext.P17 order, produced in W.P.(C) No.30060/2023. A perusal of Ext.P17 would reveal that the Tahsildar(LR) has considered the rival contentions on both sides and found that the property, which the petitioners claim to be in their ownership, is not in their possession and further that, the property as per the Basic Tax Register is not 'rock puramboke' and entered into a finding that to establish their ownership and possession of the property, it is for the petitioners to approach the competent Civil Court and based on the decision of the Civil Court, necessary changes will be carried out in the revenue records. 3. A statement has been filed by the 4 th respondent in W.P. (C)No.30060 of 2023, wherein it is stated that in the survey conducted it was found that the petitioners are not in possession of any land in Sy. Nos.109 and 110 of Aloor Village and therefore, the land tax cannot be accepted from them. Though the petitioners claim to have property in Sy. Nos.109 and 110 of Aloor Village, in the survey it is found that the petitioners are not in possession of any land in Sy. Nos.109 and 110 of Aloor Village and they do not possess any land in the adjoining survey Numbers 111 & 112 of Aloor Village. It is also submitted that Ext.P16 report has been prepared after physically examining the Survey numbers 109, 110, 111 and 112 of Aloor Village and the sketch was also prepared on the basis of that physical examination. 4. Respondents 8 and 10 in W.P.(C)No.21688 of 2022 has filed a detailed counter affidavit. The learned counsel appearing for respondents 8 and 10 submits that the said writ petition has been filed suppressing material facts. It was submitted that the claim of the petitioners is that they obtained 3.28 Acres of land by way of Ext.P2 partition deed. Ext.P1 is the sale deed by which the petitioners originally obtained the properties covered by Ext.P2 partition deed. It was submitted that the claim of the petitioners is that they obtained 3.28 Acres of land by way of Ext.P2 partition deed. Ext.P1 is the sale deed by which the petitioners originally obtained the properties covered by Ext.P2 partition deed. A perusal of Exts.P1 and P2, whereby the petitioners claim ownership of 3.28 Acres of property, the said property is situated in Survey Nos. 109/P, 110/P, 114/1 and 115/2 of Aloor Village and the entire documents produced by the petitioners as Exts.P3 and P4 in support of their contention are also related to the property situated in the aforementioned survey numbers and the document does not reveal ownership of any of the properties by the petitioners in any other neighboring survey numbers. Respondents 8 and 10 are siblings and their father along with the father of 7 th respondent has purchased lease hold right over 7.17 ¾ Acres of land in Survey Nos. 111, 112/1 and 127/3 of Aloor Village from one Thomas and his family members as per document No.590/1970 of Kunnamkulam Sub Registrar Office. Thereafter the purchasers - the 7 th respondent and the father of respondents 8 to 10 obtained Ext.R10(a) purchase certificate for 7.25 acres including the aforesaid property on 27.01.1977 from Mullassery Land Tribunal on the basis of application No. 2122/1976. It is further submitted that prior to purchase of the property covered by Ext. R10(a) by the 7 th respondent and father of respondents 8 to 10, their predecessor in interest - Devassy had dispute with the father of the petitioners herein in respect of the property covered by Ext.R10(a) and he had obtained a permanent prohibitory injunction against the petitioners' father and another person from Munsiff Court, Wadakkanchery in OS No.355/1963 from obstructing the enjoyment of the property and Ext.R10(b) decree was passed by the Civil Court. The petitioner has also preferred a suit against the 7 th respondent and the father of respondents 8 to 10 as O.S. No.84/2000 before the Munsiff Court, Wadakkancherry and when the defendants entered appearance and submitted the true facts, they abandoned the suit and the suit was dismissed for default as per Ext.R10(c) judgment. The petitioner has also preferred a suit against the 7 th respondent and the father of respondents 8 to 10 as O.S. No.84/2000 before the Munsiff Court, Wadakkancherry and when the defendants entered appearance and submitted the true facts, they abandoned the suit and the suit was dismissed for default as per Ext.R10(c) judgment. The respondents 8 and 10 would submit that having failed in the attempts to establish any encroachment into the property covered by Exts.P1 and P2 by the 7 th respondent and the predecessor of respondents 8 to 10, the present attempt of the petitioner is to somehow grab the property owned and possessed by them in Survey Nos.111 and 112/1 of Aloor Village alleging that the survey numbers mentioned in Exts.P1 and P2 as 109 and 110 of Aloor Village is a mistake. It is further contended that the petitioner cannot raise such a contention as they themselves have sold portions of property covered by Ext.P1 document including 25 and ¾ cents in Survey No.110 to the father of respondents 8 to 10 vide document No.387/1970 of Kunnamkulam SRO. Further, another parcel of property covered by Ext.P1 document has also been sold to the father of respondents 8 to 10 vide document No.1090/1968 by the predecessor of the petitioners. As regards Ext.P19 report relied on by the petitioners, the learned counsel for respondents 8 and 10 relying on the judgment in Jayasree v. State of Kerala [1990 KHC 377] submits that the Taluk Land Board is not bound to accept any of the verification report by the authorised officer under Section 105A as final and the matter has to be independently considered by the Taluk Land Board. Even otherwise the veracity of the purchase certificate issued to the respondents cannot be adjudicated in this writ petition, especially when no challenge has been raised against the same and further that this Court is not competent to adjudicate upon such issues for which the petitioner has to approach the competent forum if so advised. It is also submitted that a proper survey has been conducted and based on which a decision was taken by the Tahsildar(LR), which is absolutely correct and no interference is called for. 5. I have heard the Counsel on both sides. It is also submitted that a proper survey has been conducted and based on which a decision was taken by the Tahsildar(LR), which is absolutely correct and no interference is called for. 5. I have heard the Counsel on both sides. It is to be seen that the grievance raised by the petitioner in W.P.(C)No.21688 of 2022 is regarding construction of a mud road and removal of earth by respondents 7 to 10 without the survey being completed, which was ordered as per Ext.P8 judgment issued in W.P(C) No.1195/2022. It is seen that pursuant to the said direction issued by this Court, a survey was conducted and Ext.P16 report and sketch was prepared and based on the same Ext.P17 order was passed by the Tahsildar(LR), produced in W.P.(C)No.30060 of 2023, wherein it is found that the property which the petitioners claim to be in their ownership is not in their possession and further that the property in dispute is not ‘rock puramboke’ as per the BTR. Therefore, essentially W.P.(C)No.21688 of 2022 is filed aggrieved by the illegal extraction of earth while the survey was not completed. Since now the survey has been completed and there is a specific finding entered by the Tahsildar(LR) as per Ext.P17 order produced in W.P.(C) No.30060 of 2023, based on the survey report and sketch, I am of the view that nothing survives in W.P. (C)No.21688 of 2022 and the same is closed recording the statement of the Geologist, Thrissur that if any illegal quarrying activity of mining mineral is noticed, stringent action will be taken against the offenders. 6. As regards the challenge in W.P.(C) No.30060 of 2023, in view of the contentions taken above, it is to be seen that the survey was conducted pursuant to the direction issued by this Court in W.P.(C) No.1195/2022, the writ petition filed by the petitioners themselves and there is a clear finding that the petitioners are not in possession of the property which they claim to be in their ownership. Further contention of the petitioners based on Ext.P19 report of the revenue inspector in proceedings - O.A.No.2122/1976 for assigning land in the name of the predecessor of the respondents 10, 11, 12 and 14 especially the entry in Column 19 that the applicant is having land in excess of the ceiling limit and therefore the purchase certificate issued is bogus also cannot be accepted based on Jayasree 's case cited (Supra). Further, this Court cannot go into such contention especially when the purchase certificate is not challenged in any proceedings and further the same cannot be challenged in writ proceedings. In view of the above facts and circumstances, I find no reason to interfere with Ext.P16 report of the Tahsildar(LR) and Ext.P17 order issued by the 4 th respondent. As stated in Ext.P17 if the petitioners have any grievance regarding the same, they have to approach the competent civil court for redressal of the said grievance. Leaving open such right of the petitioners to approach the competent civil court for redressal of their grievances, the above writ petition is dismissed.