Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 WP(C) NO. 29957 OF 2012 PETITIONER: BINU VINCENT, MANNANAL HOUSE, PUTTADY KARA, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK, 685551 BY ADVS. SRI.S.EASWARAN SRI.M.A.AUGUSTINE SRI.P.MURALEEDHARAN IRIMPANAM SMT.SOUMYA JAMES SRI.P.SREEKUMAR THOTTAKKATTUKARA RESPONDENTS: 1 THE DISTRICT COLLECTOR, COLLECTORATE, KUYILIMALA, PAINAVU MP.O, IDUKKI 685503 2 THE TAHSILDAR, UDUMBANCHOLA TALUK OFFICE, NEDUMKANDAM 685503 3 THE DEPUTY TAHSILDAR HEAD QUARTERS, UDUMPANCHOLA TALUK OFFICE, NEDUMKANDAM 685503
4 THOMAS, S/O JOSEPH, CHIRAYILPARAMBIL HOUSE, RAJAKANDAM P.O, VELLIMALA KARA, VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK 5 ABDUL RASAQUE, KUNJALI NINA ANCHAMPARATHICKAL, RAJAKANDAM P.O, VELLIMALA KARA, VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK 685551 6 THE TALUK MSURVEYOR, UDUMBANCHOLA TALUK OFFICE, NEDUMKANDAM 685503 7 THE ADDITIONAL AHSILDAR, UDUMBANCHOLA TALUK OFFICE, NEDUMKANDAM 685503 -2- BY ADVS. SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SMT.ACHU SUBHA ABRAHAM SMT.N.ASWATHY SMT.T.M.BINITHA SMT.C.J.JINCY SRI.PHILIP T.VARGHESE SMT.C.A.SABITHA SRI.THOMAS T.VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH WP(C).16919/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 1ST DAY OF FEBRUARY 2023 / 12TH MAGHA, WP(C) NO. 16919 OF 2019 PETITIONER: BINU VINCENT, AGED 49 YEARS, MANNANAI HOUSE, PUTTADI P.O, PIN-685 551, IDUKKI DISTRICT. BY ADVS. S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) SRI.M.A.AUGUSTINE SRI.P.SREEKUMAR (THOTTAKKATTUKARA) SMT.SOUMYA JAMES RESPONDENTS: 1 THE DISTICT COLLECTOR, COLLECTORATE, KUYILIMALA P.O, PAINAVU, IDUKKI-685 503. 2 THE ADDITIONAL TAHSILDAR, UDUMBANCHOLA TALUK OFFICE, NEDUMKANDAM-685 503, IDUKKI. 3 ABDUL RASAQUE, SON OF KUNJALI NINA, ANCHAMPARITHICKAL, RAJAKANDAM P.O, VELLIMALA KARA, VANDANMEDU VILLAGE, UDUMBANCHOLA TALUK, PIN-685 551
BY ADVS. SRI.JUSTIN JACOB, SR.GOVERNMENT PLEADER SRI.PHILIP T.VARGHESE -4- SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.K.R.MONISHA SMT.SHRUTHI SARA JACOB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2023, ALONG WITH WP(C).29957/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -5-
JUDGMENT
[WP(C) Nos.29957/2012, 16919/2019] Petitioner in these two writ petitions is claiming to be absolute owner of 5.02 Acres of land in Survey No.67/1 of Karunapuram Village as per the sale deed No.566 of 1999 Ext.P1. In the year 2002, property was mortgaged with the Federal Bank Limited by submitting the original documents. The aforementioned property was purchased by the petitioner from respondent No.4 in W.P. (C)No.29957 of 2012 namely Thomas, son of Joseph, who in turn purchased the property from the original owner, Thomas, son of Cherian and Mathew, son of Cherian. Exts.P3 and P4 are the documents reflecting the ownership of the erstwhile owners. The boundaries as described in the sale deed Ext.P1 tallied with the documents of the erstwhile owners.
2. Learned counsel appearing on behalf of the
petitioner contended that Abdul Rasaque (respondent No.5 in W.P(C).29957/12) purchased 2.08 acres of land -6- from respondent No.4, Thomas, Son of Joseph vide sale deed dated 30.04.2009 Ext.P7. The said property is situated to the south and west of the petitioner’s property without any direct road frontage. But on account of some collusion by respondent Nos.4 and 5 in W.P.(C)No.29957 of 2012, the boundaries shown in Ext.P7 had been altered and attempt was made to include the portion of the petitioner’s property. Initially the entire land in Survey No.67/1 had been under the title and possession of certain Tamilian families on the basis of patta issued in their name by the Government as per the document Ext.P9. When respondent No.5 started making attempt to trespass on the petitioner’s property, petitioner realized that the documents reflected in his favour did not display the boundary correctly. The petitioner filed O.S.No.83 of 2009 before the District Court, Thodupuzha Ext.P14, which was later on dismissed on default. Respondent No.5 has submitted an application before the Village Officer for effecting the mutation. When the application -7- was pending, approached this Court vide W.P(C) No.20598 of 2009. This Court vide judgment dated 10.08.2009 directed the Tahsildar, Udumpanchola to conduct the mutation. Tahsildar, Udumpanchola conducted the proceedings and erroneously recorded the mutation by noticing the description of the property and boundaries in the document of respondent No.5 dated 29.10.2009.
3. Against the aforementioned order petitioner
preferred an appeal before the District Collector, Idukki Exts.P22 and P23, which is stated to be pending. However, there is no interim prayer and therefore the petitioner approached this Court. The writ petition was admitted on 14.12.2012.
4. Learned counsel for the petitioner submitted that petitioner would be satisfied in case appropriate directions are issued to the District Collector to decide the pending appeal, if not decided so far.
5. On 16.1.2023 this Court sought the information
-8- from the Government Pleader regarding the position of the appeal. Mr.Justin Jacob, learned Senior Government Pleader said that the information could not be obtained., as per the records it was listed for 14.02.2022.
6. Learned counsel for respondent Nos.4 and 5 in W.P.(C)No.29957 of 2012 submits that the appeal is still pending.
7. I have heard learned counsel for the parties and appraised the paper books.
8. Petitioner is alleged to have purchased the
property vide the sale deed as mentioned above. The dispute occurred only when 5 th respondent purchased the property from the common owner i.e., the 4 th respondent . The dispute is with regard to the mutation but until and unless there is no demarcation, the mutation proceedings cannot be culminated. Be that as it may, I would not be dwelling further on the matter, keeping in view the statement suffered by the respondent Nos.4 and 5 in W.P. (C)No.29957 of 2012 that the appeal is pending, I dispose -9- of both the writ petitions by issuing directions to respondent No.1 to decide the pending appeal Exts.P22 and P23, in accordance with law, after affording an opportunity of hearing to the parties within a period of three months from the date of receipt of a certified copy of the judgment. Sd/- AMIT RAWAL JUDGE vv -10- APPENDIX OF WP(C) 16919/2019 PETITIONER EXHIBITS EXHIBIT P1 COPY OF PROCEEDINGS DATED 31.1.2012 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 COPY OF PETITION DATED 2.11.2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXHIBIT P3 COPY OF STATEMENT DATED 10TH JANUVARY 2013 FILED ON BEHALF OF RESPONDENTS 1 AND 7 IN W.P.(C) NO. 29957 OF 2012. EXHIBIT P4 COPY OF REPRESENTATION DATED 14TH MAY, 2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. -11- APPENDIX OF WP(C) 29957/2012 PETITIONER EXHIBITS EXHIBIT P1 TRUE PHOTOCOPY OF SALE DEED NO.566 OF 1999, UDUMBANCHOLA SRO DATED 9/3/1999. EXHIBIT P2 TRUE PHOTOCOPY OF LOCATION SKETCH AND CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KARUNAPURAM VILLAGE DATED EXHIBIT P3 TRUE PHOTOCOPY OF THE PRIOR TITLE DOCUMENTS OF THE PLAINTIFF'S PROPERTY, DOCUMENTS NO.427 OF 1979 DATED EXHIBIT P4 TRUE PHOTOCOPY OF THE PRIOR TITLE DOCUMENTS OF THE PLAINTIFF'S PROPERTY, DOCUMENTS NO.645 OF 1980 DATED EXHIBIT P5 TRUE PHOTOCOPY OF DOCUMENT NO.2021 OF 1979 DATED 17/5/1978 EXHIBIT P6 TRUE PHOTOCOPY OF DOCUMENT NO.2020 OF 1978 DATED 16/5/1978 EXHIBIT P7 TRUE PHOTOCOPY OF DOCUMENT NO.827 OF 2009 DATED 30.04.2009. EXHIBIT P8 TRUE PHOTOCOPY OF DOCUMENT NO.2906 OF 1980 DATED 29.12.1980 EXHIBIT P9 TRUE PHOTOCOPY OF THE SURVEY SKETCH
SHOWING THE LIE OF THE PROPERTIES COVERED BY THE SAID PATTAS ISSUED TO THE PETITIONERS PREDECESSORS IN TITLE, ISSUED FROM THE TALUK OFFICE, UDUMBANCHOLA.
EXHIBIT P10 TRUE PHOTOCOPY OF CERTIFICATE OF -12- REGISTRATION NO.22191379 DATED TO THE PETITIONER. EXHIBIT P11 TRUE PHOTOCOPY OF LETTER DATED 17.09.1999 ISSUED TO THE PETITIONER BY TEA BOARD. EXHIBIT P12 TRUE PHOTOCOPY OF THE PANCHAYAT LICENCE DATED 12.01.2001 ISSUED TO THE PETITIONER. EXHIBIT P13 TRUE PHOTOCOPY OF CERTIFICATE DATED 04.05.2009 ISSUED BY THE FEDERAL BANK LTD., PUTTADY. EXHIBIT P14 TRUE PHOTOCOPY OF THE PLAINT IN O.S.NO.83 OF 2009, MUNSIFF'S COURT, KATTAPPANA. EXHIBIT P15 TRUE PHOTOCOPY OF ORDER DATED
07.05.2009 IN I.A.NO.289 OF 2009 IN UNNUMBERED O.S.NO. OF 2009, DISTRICT COURT (VACATION COURT) THODUPUZHA.
EXHIBIT P16 TRUE PHOTOCOPY OF REPORT OF ADVOCATE COMMISSIONER, SHANCYMOL PHILIP DATED EXHIBIT P17 TRUE PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE 5TH RESPONDENT IN O.S.NO.83 OF 2009, MUNSIFF'S COURT, KATTAPPANA. EXHIBIT P18 TRUE COPY OF THE REPORT SUBMITTED BY COMMISSIONER, SHINSAMOL. EXHIBIT P19 TRUE PHOTOCOPY OF JUDGMENT DATED 10.08.2009 IN WP(C)NO.20598 OF 2009. EXHIBIT P20 TRUE PHOTOCOPY OF NOTICE DATED 23.12.2009 ISSUED TO THE PETITIONER BY THE SECRETARY, KARUNAPURAM GRAMA -13- PANCHAYAT. EXHIBIT P21 TRUE PHOTOCOPY OF THE REPORT SUBMITTED BY THE TALUK SURVEYOR, UDUMBANCHOLA BEFORE THE TAHSILDAR IN LRM 300/2009. EXHIBIT P22 TRUE PHOTOCOPY OF THE PETITION DATED BEFORE THE DISTRICT COLLECTOR, IDUKKI, TOGETHER WITH RECEIPT. EXHIBIT P23 TRUE PHOTOCOPY OF THE APPEAL DATED 02.11.2009 SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR. EXHIBIT P24 TRUE PHOTOCOPY OF LETTER DATED 31.01.2012 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P25 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 08.02.2012 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL TAHSILDAR, NEDUMKANDAM. EXHIBIT P26 TRUE PHOTOCOPY OF FURTHER STATEMENT DATED 25.02.2012 SUBMITTED BEFORE THE ADDITIONAL TAHSILDAR, NEDUMKANDAM. EXHIBIT P27 TRUE PHOTOCOPY OF LETTER DATED 16.03.2012 ISSUED BY THE ADDITIONAL TAHSILDAR, UDUMBANCHOLA. EXHIBIT P28 TRUE PHOTOCOPY OF REPRESENTATION DATED 20.03.2012 SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL TAHSILDAR, UDUMBANCHOLA.