IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 10TH DAY OF JANUARY 2013 20TH POUSHA 193 WP(C).No. 30206 of 2011 (A) ------------------------------------- PETITIONER(S): ----------------------- PETER, S/O.JOSEPH, PUNCHAPUTHUSSERIL, KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.R.KRISHNAKUMAR (CHERTHALA) SMT.TINY THOMAS RESPONDENT(S): ------------------------- 1. VILLAGE OFFICER, MULANTHURUTHY VILLAGE,MULANTHURUTHY P.O. ERNAKULAM DISTRICT-682 314.
2. TAHSILDAR, TALUK OFFICE, KANAYANNUR,ERNAKULAM DISTRICT-682 011.
3. DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, KAKKANAD ERNAKULAM-682021.
4. SUB REGISTRAR, MULANTHURUTHY, ERNAKULAM DISTRICT-682 314.
5. THE DIRECTOR (VIGILANCE), P.M.G., THIRUVANANTHAPURAM-695001.
6. DEPUTY SUPERINTENDENT OF POLICE (VIGILANCE), ERNAKULAM DISTRICT, ERNAKULAM-682 011.
7. VARGHESE, S/O. OUSEPH, CHAKYATHU HOUSE, MUKKANNOOR P.O., ALUVA TALUK PIN-683 577.
8. SALINI, D/O.VARGHESE, CHAKYATHTHU HOUSE, MUKKANNOOR P.O.,ALUVA TALUK PIN-683 577.
9. ABI, S/O.VARGHESE, CHAKYATHTHU HOUSE,MUKKANNOOR P.O., ALUVA TALUK,PIN-683 577. (Contd. ....2) WP(C).No. 30206 of 2011 (A) -2- 10. H.V.RAJAN, S/O.VENKESWARA BHAT,AGED 57 SWARALAYAM VEETTIL EDAPPALLY PIN-682 024, ERNAKULAM DISTRICT.
11. FLAIMI SUNIL, W/O. SUNILKUMAR, AGED 32 SANTHI NIVAS EDAPPALLY P.O., PIN-682 024, ERNAKULAM DISTRICT.
12. DISTRICT REGISTRAR (GENERAL), ERNAKULAM-682 016. * ADDL .R13. REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE, FORT KOCHI, ERNAKULAM DISTRICT. * ADDL R13 IS IMPLEADED AS PER ORDER DATED 3 4.2012 IN I.A. NO.4899/2012 R1 TO R6, R12 & R13 BY ADV. GOVERNMENT PLEADER SMT. ROSE MICHAEL. R10 BY ADV. SRI.VARGHESE.J.PUNNACHALIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 30206 of 2011 (A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 :COPY OF THE JUDGMENT DT.17.01.2009 IN O.S. NO.289/2008 OF THE SUB JUDGE, ERNAKULAM. EXT.P2 :COPY OF THE DECREE DT.17.01.2009 IN O.S. NO.289/2008 OF THE SUB JUDGE, ERNAKULAM. EXT.P3 :COPY OF THE SALE DEED NO.524/2011 OF SRO, MULANTHURUTHY DT. 23.02.2011 EXT.P4 :COPY OF THE ORDER IN I.A.NO.1987/2011 IN I.A.8105/2009 IN O.S.NO.289/2008 OF SUB JUDGE, ERNAKULAM EXT.P5 :COPY OF THE RECEIPT ISSUED BY THE PETITIONER TO THE AMIN EVIDENCING DELIVERY OF EXT.P3 PROPERTY EXT.P6 :COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE 4TH RESPONDENT FOR THE PERIOD 01 01.1995 TO 04-06-2011 IN RESPECT OF PROPERTY MADE MENTIONED IN EXT.P3. EXT.P7 :COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT.24.06.2011 EXT.P8 :COPY OF THE SALE DEED NO.994/2011 OF SRO. MULANTHURUTHY DT.12.4.2011 EXT.P9 :COPY OF THE SALE DEED NO.640/2011 OF SRO. MULANTHURUTHY DT.09.03.2011 EXT.P10 :COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE 4TH RESPONDENT FOR THE PERIOD 01 01.2011 TO 24.8.2011 IN RESPECT OF PROPERTY MADE MENTIONED IN EXT.P3. EXT.P11 :COPY OF THE COMPLAINT FILED BEFORE THE 1ST RESPONDENT DT.11.10.2011 EXT.P12 :COPY OF THE COMPLAINT FILED BEFORE THE 12TH RESPONDENT DT.11.10.2011 EXT.P13 :COPY OF THE COMMUNICATION ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AS LETTER NO.301/11 DT.14.10.2011. EXT.P14 :COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE SI OF POLICE, MULANTHURUTHY DT.NIL EXT.P15 COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 5TH RESPONDENT WITH COPY TO 4TH RESPONDENT DT 05.11.2011 ADDL. :COPY OF THE COMMUNICATION NO.INS[4]4238/2011 DTD.4.2.2012 EXT.P16 ISSUED BY THE 12.RESPONDENT TO THE PETITIONER. (ADDL.EXT.P16 IS ADDED AS PER ORDER DTD.3.4.2012 IN I.A.NO 4898/12 (Contd.....) WP(C).No. 30206 of 2011 (A) RESPONDENT'S EXHIBITS: Ext.R2(a) :COPY OF THE NOTICE OF HEARING ON 8.2.2012 Ext.R11(a) :COPY OF THE ENCUMBRANCE CERTIFICATE NO.5393/2010, DATED 17 7.2010 ISSUED FROM MULANTHURUTHY SUB REGISTRAR OFFICE. Ext.R11(b) :COPY OF THE TAX PAID RECEIPT NO.4471164, DATED 14 7.2010, ISSUED BY VILLAGE OFFICER, MULANTHURUTHY. Ext.R11(c) :COPY OF THE TAX PAID RECEIPT NO.4355094, DATED 26 7.2011, ISSUED BY VILLAGE OFFICER, MULANTHURUTHY. Ext.R11(d) :COPY OF THE ENCUMBRANCE CERTIFICATE NO.6179/2011, DATED 26 7.2011 ISSUED BY THE 4TH RESPONDENT. Ext.R11(e) :COPY OF THE CERTIFIED COPY OF I.A.NO.4853/2010 IN O.S.NO.289/2008 Ext.R11(f) :COPY OF THE CRL.M.P NO.1758/2011 Ext.R12(a) :COPY OF THE APPLICATION DATED 4 6.2011 SUBMITTED BY MR.SHIBU FOR THE EXT.P6 AND EXT.10 ENCUMBRANCE CERTIFICATE Ext.R12(b) :COPY OF THE APPLICATION DATED 24 8.2011 SUBMITTED BY MR.SHIBU FOR THE EXT.P6 AND EXT.10 ENCUMBRANCE CERTIFICATE //TRUE COPY// P.S. TO JUDGE sou. A.M.SHAFFIQUE, J.
---------------------------------------------------- W.P.(C) No. 30206 of 2011 - A --------------------------------------------------- Dated this the 10th January, 2013 JUDGMENT
The petitioner seeks for a direction to cancel or strike off sale deed Nos. 994/2011 and 640/2011 registered before the Sub Registrar Office, Mulanthuruthy, copies of which are produced as Exts. P8 and P9 and to remove the same from the registers maintained before the said Sub Registrar's Office and consequently to affect mutation of the property in the name of the petitioner.
2. The facts involved in the case would disclose that the petitioner filed a suit for specific performance against respondents 7 to 9 and obtained an ex parte decree. Though an application was filed for setting aside the ex parte decree, the same came to be dismissed and despite the fact that respondents 7 to 9 had approached this Court, the ex parte decree was not set aside. In pursuance of the said decree, the petitioner in execution obtained a sale deed in his favour as evident from Ext.P3. The said sale deed is registered as document No. 524/2011 of SRO, Mulanthuruthy. W.P.(C) No. 30206 of 2011 - A 2 The schedule to Ext.P3 would indicate that it is in respect of 6.34 ares in re-survey No. 56/3 of Block No. 23 of Mulanthuruthy Panchayat. The recitals of the said sale deed would indicate that the prior document referred to is sale deed No.152/2000 in Book 1, volume 689 at pages 293 to 296.
3. The complaint of the petitioner is that, subsequently by Exts.P8 and P9 sale deeds, the very same property covered by Ext.P3 was sold in favour of respondents 10 and 11 by respondents 7 to 9. The recitals in Exts.P8 and P9 also indicate that the prior document referred to is sale deed No. 152/2000 in Book 1, Volume 689 at pages 293 to 296 of SRO, Mulanthuruthy. Apparently, the documents sold by virtue of Exts.P8 and P9 is the same property conveyed as per Ext.P3. Ext.P8 is dated 12.4.2011 and Ext.P9 is dated 9.3.2011.
4. The petitioner approached the revenue authorities for effecting mutation of the property. But the same was not done on account of the existence of Exts.P8 and P9 sale deeds. The matter is now under consideration by the Revenue Divisional Officer. W.P.(C) No. 30206 of 2011 - ”
5. The petitioner had also filed an additional document as Ext.P16 which is the report of an enquiry conducted by the District Registrar (General) which clearly indicates that the sale deeds Exts.P8 and P9 were executed at a time when there was a prohibitory order from the Court. But in Ext.P16, the District Registrar (General) had expressed his inability to do anything further in the matter as he does not have jurisdiction to cancel a sale deed wrongly executed.
6. Respondent No.11 has filed a counter affidavit stating that they were cheated by respondents 7 to 9 and they were not aware of Ext.P3 sale deed. The encumbrance certificate which was produced before them did not show any such encumbrance on the property. According to them they have filed a private complaint against respondents 7 to 9 as C.M.P. No.1758/2011 before the Judicial Magistrate of the First Class, Kolencherry and the same is pending. They have also stated that mutation was effected in their name after execution of Exts.P8 and P9 sale deeds as per Tandaper No. 7644 and tax was paid. W.P.(C) No. 30206 of 2011 - ”
7. The 2nd respondent has filed a counter affidavit inter alia stating that the proposal for cancelling the mutation in the name of respondents 10 and 11 is pending consideration by the Revenue Divisional Officer, Fort Kochi, who is seized of the matter.
8. Another counter affidavit is filed by the 12th respondent stating that the registering authority has not acted in violation of the Registration Act, 1908 and has acted only in accordance with Rule 67 of the Kerala Registration Rules, 1958. It is further indicated that the injunction order produced by a party prohibiting alienation of the property will in no way affect the registration of the document in so far as the registration of Document, Exts.P8 and P9 are concerned. The Registrar had been guided by the directions contained in the judgment in W.P.(C) No. 22566/2006 on 23.2.2011. However, a copy of the said judgment is not placed on record. It is further contended that the re-survey No.56/3 of Block No.23 of Mulanthuruthy Village described in the instrument is having a total extent of one hectare 81 ares which is owned by several persons. Out of which only an extent of 6.34 ares of property was W.P.(C) No. 30206 of 2011 - A 5 conveyed by the Principal Sub Judge as per Ext.P3 Document. But it is not disputed that in the recitals of Exts.P8 and P9, the prior document referred to is sale deed No. 152/2000 of SRO, Mulanthuruthy which belonged to one Mini Varghese and that respondents 7, 8 and 9 were the legal heirs.
9. In spite of the fact that notices have been served on respondents 7, 8 and 9, there is no appearance on their behalf.
10. The question to be considered is whether the directions as sought for can be granted. Learned counsel for the petitioner also relied upon the judgment of this Court in Noble John v. State of Kerala [2010 (3) KLT 941], wherein this Court has held that registering authority will have to verify whether the person executing the sale deed has a valid right in the property, at least on a cursory glance of the documents made available in the registrar's office. Apparently, this is a case in which respondents 7, 8 and 9 had executed sale deed after their rights had been vested in the petitioner by virtue of a sale deed Ext.P3 executed by the Court in favour of the petitioner. In other words, respondents 7, 8 and 9 had no right in respect of the said property. The question is whether W.P.(C) No. 30206 of 2011 - A 6 there is anything wrong on the part of the Sub Registrar in permitting the registration of Exts.P8 and P9 at a time when Ext.P3 was in existence. Even going by the counter affidavit and Ext.P16, it is clear that the authorities concerned have come to a conclusion that registration was wrongly done. That being the situation, since respondents 7, 8 and 9 had no interest in the property at the relevant time, the sale deed executed is void and cannot be given effect to. In that view of the matter, I am inclined to allow the writ petition declaring that Exts.P8 and P9 sale deeds are void.
11. Having declared that Exts.P8 and P9 are void, definitely the petitioner is entitled to get mutation effected in his favour. Since the matter is pending before the Revenue Divisional Officer, the additional 13th respondent, it is enough that a direction is issued only to the 13th respondent to complete the entire mutation proceedings within a period of two months. In that view of the matter, the writ petition is allowed as follows: W.P.(C) No. 30206 of 2011 - A 7 a. That Exts.P8 and P9 sale deeds are declared to be void. The 4th respondent shall make necessary entries in that regard in Book I. b. That the additional 13th respondent shall effect mutation of the property in the name of the petitioner in the light of Ext.P3 sale deed within a period of two months from the date of receipt of a copy of this judgment. A.M.SHAFFIQUE, JUDGE. rka