The petitioner has filed this writ petition seeking issuance of a writ of certiorarified mandamus to call for the records of the second respondent pertaining to his order in No.A1/S.R.8/1984, dated 20.02.2009 on his file and quash the same; to direct the respondents to implement the decree dated 01.08.1994 in O.S.No.404 of 1983 on the file of the learned Additional District Munsif of Kuzhithurai, as confirmed by the decree dated 13.07.2001 in A.S.No.72 of 1996 on the file of the learned Subordinate Judge, Kuzhithurai, by altering the survey and settlement of the petitioners' property of one acre and seventeen cents in Re-Survey No.336/1, 2, 4, 5A and part of 3 of Ezhudesom Village, Vilavancode Taluk, Kanyakumari District and noting the same in the record, as per Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923; and to consequently issue patta for the said property in favour of the petitioners and receive tax from the petitioners for the same.
2. The facts in a nutshell are as under: According to the petitioners, there was a mistake in re-survey and settlement with respect to their property of an extent of one acre and seventeen cents in Old Survey Nos.1464 and 1466, correlating to Re-survey Nos.336/1, 2, 4, 5A and part of 3 of Ezhudesom Village, Vilvancode Taluk, Kanyakumari District, whereby a portion of the said land was wrongly shown as odai poromboke.
3. Challenging the same, the first petitioner (deceased) filed a suit in O.S.No.404 of 1983 on the file of the learned Additional District Munsif Court of Kuzhithurai arraying the first respondent herein as a party. After contest, by judgment and decree dated 01.08.1994, the suit was decreed in favour of the first petitioner (deceased), inter alia, declaring the title and possession of the first petitioner over the said property; granting permanent injunction restraining the first respondent from interfering with the peaceful possession and enjoyment of the said property.
4. Calling into question the said judgment and decree, the first respondent filed an appeal, being A.S.No.72 of 1996, on the file of the Subordinate Judge, Kuzhithurai, which was dismissed by judgment and decree dated 13.07.2001, by confirming the decree passed in the original suit.
5. It is the case of the petitioners that despite holding judgment and decree in their favour, the respondent authorities, who have to alter the wrong determination of portion of the petitioners' lands into their names under Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923, are not taking any steps for alteration of the records; have not issued patta to them and are not receiving tax in respect of the said property from the petitioners. The petitioners claim to have made repeated requests in this regard and also sent a lawyer's notice dated 08.02.2005.
6. It is alleged that the second respondent, all of a sudden, caused damaged to the property using a JCB machine and on enquiry, the officials stated that the land is poromboke land and they propose to excavate the same to form a channel through the said land. The petitioner immediately sent another lawyer's notice dated 09.02.2009 to the respondents. In response to the same, the second respondent, by letter dated 20.02.2009 addressed to the advocate of the petitioners, informed that the appeal against the judgment and decree in the appeal suit is pending before the Madurai Bench of this Court and, therefore, the request of the petitioners can be considered only after the disposal of the second appeal.
7. In this backdrop, the present writ petition is filed for the relief stated supra.
8. The learned counsel appearing on behalf of the petitioners contended that when a statutory duty is cast on the respondent authorities under Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923, the refusal to exercise such power is bad and unsustainable.
9. The learned counsel further contended that the impugned order is vague and does not give the particulars of the second appeal if any filed by the respondents, and in any event, mere filing of such second appeal, does not absolve the respondents of their statutory duty, in the absence of any stay granted of the judgment and decree.
10. Per contra, the learned Government Advocate appearing on behalf of the respondents contended that the respondent authorities have not trespassed into the patta lands of the petitioners and that when a second appeal has been filed by the respondent authorities impugning the judgment and decree passed in the appeal suit, the alteration of the records as prayed for by the petitioners cannot be granted and, therefore, the writ petition is liable to be dismissed.
11. I heard K.N.Thambi, learned counsel for the petitioners and Mr.K.Guru, learned Government Advocate for the respondents and perused the documents available on record.
12. At the outset, it is to be noted that this Court as early as 21.04.2009 granted an order of interim injunction restraining the respondent authorities from trespassing upon the disputed property and the said order was extended until further orders. Therefore, as on date, the said interim order holds good and the respondent authorities have not taken any steps to vacate the same.
13. It is beyond any cavil that qua the disputed property, the first petitioner (deceased) filed a suit in O.S.No.404 of 1983 on the file of the learned Additional District Munsif Court of Kuzhithurai, and after full contest, by judgment and decree dated 01.08.1994, the suit was decreed in favour of the first petitioner (deceased).
14. Admittedly, as against the said judgment and decree, the respondent authorities filed an appeal, being A.S.No.72 of 1996, on the file of the learned Subordinate Judge, Kuzhithurai, which was dismissed by judgment and decree dated 13.07.2001, by confirming the decree passed in the original suit.
15. The only reason assigned in the impugned order for not complying with the request of the petitioners for alteration of the records, etc., is that the respondent authorities have filed a second appeal against the judgment and decree dated 13.07.2001 passed in A.S.No.72 of 1996 and the pending disposal of the same, the request of the petitioners cannot be considered.
16. This Court has perused the counter affidavit filed by the respondents authorities. The only word uttered regarding the second appeal pending before the Madurai Bench is that the second appeal is in SR stage. Even across the bar, the learned Government Advocate did not furnish any number qua the second appeal or the present status of the case, etc. In any event, it is not the case of the learned Government Advocate that the Madurai Bench has stayed the operation of the judgment and decree passed in A.S.No.72 of 1996.
17. It is a trite law that mere filing of the appeal will not amount to stay of the operation of the decree of the lower Courts. Until the decrees of the Courts below are set aside, the decree-holder is entitled to claim the benefits of the same. The respondents did not produce any material to show that they obtained an order of stay from this Court in the second appeal. The mere filing of a second appeal is not an automatic stay of the order appealed against and as long as there is no stay, the respondent authorities are bound to comply with the same.
18. The Tamil Nadu Survey and Boundaries Act vests with the Revenue officials certain powers. It is as a part of the sovereign duties, such functions are performed by the Government under the provisions of this Act, of course through the Revenue officials. When the petitioners hold a decree in their favour and seek the fruits of the said decree, the respondent authorities, who have the bounden duty to perform the statutory duties, in my considered opinion, should not take recourse to a fallacious plea that a second appeal is filed against the judgment and decree passed in the appeal suit and pending the same, the decree granted by the civil Court cannot be complied with. In my considered opinion, the reasoning assigned in the impugned order, can by no stretch of imagination be countenanced. The same is untenable in law and reeks of mala fide.
19. For the foregoing reasons, the following order is passed:
(i)the writ petition is allowed and the order dated 20.02.2009 passed by the second respondent, is set aside;
(ii) the respondents are directed to consider the decree granted by the Civil Court in favour of the petitioners and note the same in the revenue records as per Section 14 of the Tamil Nadu Survey and Boundaries Act, 1923;
(iii) the respondents are directed to issue patta to the petitioners in respect of the property of an extent of one acre and seventeen cents in Re- Survey Nos.336/1, 2, 4, 5A and part of 3 of Ezhudesom Village, Vilavancode Taluk, Kanyakumari District;
(iv) the respondents are directed to complete the above said exercise within a period of eight weeks from the date of receipt of a copy of this order.
(v) No costs. Consequently, W.P.M.P.(MD) No.1 of 2009 is closed.
To
1. The District Collector of Kanyakumari, State of Tamil Nadu at Nagercoil, Kanyakumari District.
2. The Tahsildar, Vilavancode, at Kuzhithurai Kanyakumari District ? 629 163.
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