The petitioner has come up with the present writ petition to issue a Writ of Certiorari, calling for the records of the 1st respondent in his proceedings in Na.Ka.C.Ma.No.M2/9/2008 dated 22.12.2008 and quash the same for the reasons stated in the affidavit.
2.It is the case of the petitioner is that the land in Survey No.84/1 to an extent of 3 Acre 41 cents in Melapalayam Village, Tirunelveli District, originally belonged to his forefather namely Seippu Malik Mohideen. The said land was purchased by the said Seippu Malik Mohideen through a registered sale deed dated 09.05.1927 vide in Document No.1286/1927. According to the petitioner, the said land was subdivided as Survey No.84/1A to an extent of 1 Acre 71 cents and was owned by the grandfather of the petitioner and his legal heirs from 1927. Since the date of purchase the aforesaid Seippu Malik Mohideen and his legal heirs have been in continuous possession and they have not subjected the land for any kind of encumbrance after their purchase. In pursuance of the death of the said Saipu Malik Mohideen, his legal heirs executed a registered power of attorney in favour of the petitioner and he is in the possession in the aforesaid property that is in the Survey No.84/1A.
3.However, in the aforesaid property, the petitioner and his family members are in possession and enjoyment of the property and the petitioner with his family members are paying the relevant taxes. All the revenue records are stand in the name of the petitioner and his in-born. The said property was also mortgaged in favour of one Kajamohideen under a deed of mortgage dated 21.08.1980. Abruptly and shockingly one Essaki Pandian claimed interest in the aforesaid property who also filed a petition to the 3rd respondent herein to change the Patta relating to the aforesaid land in respect of 1 Acre 71 cents. When the matter came to the knowledge, immediately objection was raised by the petitioner. However, the said Essaki Pandian and the 8th respondent claimed that they purchased the land in dispute from the legal heir of one Mrs.Mohideen Fathima by virtue of 2 sale deeds. Apart from that they also claimed that the said Mohideen Fathima prescribed the title of the said land through a court auction sale in O.S.No.250 of 1938 on the file of the District Munsif Court, Tirunelveli.
4.However, the petitioner resisted the claim of the said Essaki Pandian and the 8th respondent herein on the strength that all the revenue records are in the name of the family members of the petitioner including Patta from the year 1927. At the same time, the grievance of the petitioner is that the 3rd respondent without considering the legal points raised by the petitioner, allowed the claim of the said Essaki Pandian and another by his proceedings in Na.Ka.No.RDR 1080, 1081/2007 dated 25.09.2007. So, the petitioner preferred an appeal to the 2nd respondent herein, but the 2nd respondent passed an order by giving a direction to the parties concerned to approach the civil court as the 1st respondent herein reversed the order of the 2nd respondent. Hence the petitioner is constrained to prefer the instant writ petition.
5.Per contra, the 1st respondent has filed counter affidavit stating that the order passed by the 1st respondent is in accordance with law and the same is valid. Further, the 8th respondent has filed counter affidavit on his behalf and on behalf of the 5th and 7th respondents. In the counter affidavit, it is contended by the 5,7 and 8th respondents that the property found in survey No. 84/1 to an extent of 3 acres 41 cents in Melapalayam Village was originally belonged to Sukkan Syed Mohamed Lebbai who sold the property to Shippu Mohideen Tharakanar by way of a registered sale deed on 09.05.1927. The original owner before the sale mortgaged the property in favour of one S.M.A.Mohamed Mohideen through a registered mortgage dated 20.01.1924. As the mortgagor failed to redeem the mortgage, the mortgagee filed a suit in O.S.No.250 of 1938, on the file of the District Munsif, Thirunelveli by impleading the subsequent purchasers also. After complete trail, final decree was passed on 05.12.1939. Thereafter the legal representatives of the 1st plaintiff brought the property for sale in E.P.No. 581 of 1942 on the file of the very same court and purchased the same after the permission of the court and the sale was conformed on 13.01.1943.
6.Thereafter an application in E.A.No. 827 of 1943 was filed and delivery was taken and the same was recorded on 11.10.1943. Consequently, the auction purchasers sold the total property along with another land to one Shippu Abubakar Tharaganar by way of registered sale deed dated 31.10.1943. Subsequently on 15.10.1944 the property was purchased by one Abdul Kai Tharaganar and the same was transferred by way of sale to one Mohamed Abdullah Tharaganar on 21.05.1945. Besides, on 21.09.1967 the property was purchased by one J.H.Ahamed Ali Tharakanar and Mohideen Fathima through a registered sale deed. Subsequently, the land was subdivided as 84/1A and 84/1B by the owners in view of Land Ceiling Act. But, the property found in survey No. 84/1B was taken over by the Government as surplus land. At the same time in the deed of power of attorney given by the heirs of Shippu Malik Mohideen to the petitioner, the western boundary has been described as Survey No. 48/1B which was taken over by the Government under the Land Ceiling Act. Further, the proceedings under the Land Ceiling Act, Gazette publication dated February 1983 and the certified copy of the Suit Register in O.S.No. 250 of 1983 on the file of the District Munsif Tirunelveli to prove the delivery of the property to the auction purchasers, would prove that the averments of the Writ Petition are false. Therefore the respondents 5,7, and 8 pray for the dismissal of the Writ Petition.
7.I heard Mr.V.Meenakshisundaram, learned counsel for Mr.D.Nallathambi, learned counsel appearing for the petitioner and Mr.Aayiram K.Selvakumar, learned Government Advocate appearing for the respondents 1 to 3 and Mr.M.P.Senthil, learned counsel appearing for the respondents 5 to 8 and the materials available on records are perused.
8.It is the case of the petitioner that he is the power of attorney of title holders of the property found in survey No. 84/1A. His contention is that his Principals have valid title and all the Revenue records would show that the Principals of the petitioner alone are title holder of the property. So, on the strength of the revenue records the Revenue Divisional Officer passed the order in their favour, but the Revisional authority set-aside the order passed by the Appellate authority without considering the totality of the case in a proper manner. So, the order passed by the Revision Court that is the District Revenue Officer is liable to be set-aside by relying on the following judgments:
1. 2000 T.L.N.J. 102 (Kaliyuga Kannan v. The Tahsildar, Land Survey & Settlement & others)
2. 1999 S.A.R. (Civil) 164
3. 2004 (1) CTC 136 (Chockkappan and 2 others v. The State of Tamil Nadu rep. by the Special Commissioner and Commissioner Land Administration, Chepauk, Chennai-5 and 2 others)
4. 2010 (4) CTC 640 (1.Venkataramana and others v. 1.N.Munuswamy Nadi and others)
5. 2011 (5) CTC 94 (Vishwas Footwear Company Ltd., A-2 Third Phase, Guindy Industrial Estate, Chennai-600 032, rep. by Director, V.Ravi v. 1.The District Collector, Kancheepuram and others)
6. (2012) 1 MLJ 232 (C.Sabesan Chettiar (Deceased) and Others v. District Revenue Officer, Coimbatore District, Coimbatore and Others)
7. 2014 (3) TLNJ 145 (Civil) (L.K.M.A.Mohammed Saleem, S/o. L.K.M.Abdul Rahman, through his Power Agent Noorunnisa, W/o.L.K.M.A.Mohammed Saleem v.
1.The District Revenue Officer, Tirunelveli and others)
9.However, the counsel for the respondent would contend that the respondents have not come up with true facts and also narrated the facts pertaining to the property in dispute. Therefore, he justifies the order of the learned District Revenue Officer as the same is in accordance with law and the Writ Petition is liable to be dismissed.
10.There is no dispute in the extension of the property as well as the revenue records are standing in the name of the petitioner?s principals for several decades. On the other hand, the contention of the respondents is that the property was subjected for court auction and purchased. So, the issue involved in the Writ Petition totally comprises of facts alone. By invoking
article 226 of the Constitution, it is not advisable to appreciate the facts based on the averments on either side. The facts are to be proved by adducing oral and documentary evidence. However, it is desirable that the question facts revolves around the property in dispute is to be subjected for adjudication by a competent civil court. At the same time, the order of the 1st respondent is liable to be set-aside as he has not considered the revenue records of the petitioners.
11.In the result:
(a) this writ petition is allowed by setting aside the order passed by the 1st respondent/District Revenue Officer, Tirunelveli, by confirming the order passed by the 2nd respondent/ Revenue Divisional officer, Tirunelveli;
(b) the petitioner and the respondents 4 to 8 are hereby directed to approach the appropriate Civil Court to settle the dispute and also for issuance of patta. No cost.
To
1.The District Revenue Officer, Tirunelveli, Tirunelveli District.
2.The Revenue Divisional Officer, Tirunelveli District.
3.The Zonal Deputy Tahsildhar, Palayamkottai Zone, Palayamkottai, Tirunelveli..