## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR**
**&**
**THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR**
**TUESDAY, THE 12TH DAY OF NOVEMBER 2019 / 21ST KARTHIKA, 1941**
**WA.No.407 OF 2017**
**AGAINST THE JUDGMENT IN WPC 31348/2016 DATED 25-10-2016**
## **APPELLANT/PETITIONER:**
**IBRAYI,AGED 41, S/O.KOYA KODAKKATTIL HOUSE, KANIYAMBATTA, VAITHIRI, WAYANADU.**
**BY ADVS. SRI.P.V.SREENIVASAN SRI.K.A.SREEJITH**
## **RESPONDENTS/RESPONDENTS:**
- **1 ADDITIONAL TAHSILDAR VAITHIRI THALUK, VAITHIRI.**
- **2 THALUK SURVEYOR VAITHIRI THALUK, VAITHIRI, WAYANADU.**
- **3 SAIDU,S/O.MOHEMEMD, MADAPPILLY HOUSE, KANIYAMBATTA, VAITHIRI.**
- **4 MOHEMEMD SALIM,S/O.MOOSA, ELAYIDATH HOUSE, KANIYAMBATTA, VAITHIRI. SR.GP.SRI. TEK CHAND**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **JUDGMENT**
S.Manikumar, CJ.
Writ appeal is filed against the judgment made in W.P.(C) No.31348 of 2016 dated 25.10.2016 by which the writ court declined to quash Ext.P7 mutation of the revenue records in respect of the property specifically mentioned thereunder and Ext.P8 notice issued to the writ petitioner/appellant for fixing the boundaries of the same.
2. Short facts leading to the appeal are that appellant claims that he is the absolute owner of 0.0607 hectors of property situated in Re.Survey No.225/7 of Kaniyambetta Village as per Release Deed No.2709/05 and Gift Deed No.2710/05 of S.R.O. Panamaram.
3. Further case of the appellant is that when respondents 3 and 4 tried to trespass into his property, he filed O.S.No.289/2014 before the Munsiff Court, Kalpetta and that there is temporary injunction.
4. Appellant has further contended that in the said suit, respondents 3 and 4 have entered appearance and filed counter affidavit to the interlocutory application as well as written statement. While so, the Additional Tahsildar, Vythiri Taluk, respondent No.1, issued a notice to the writ petitioner/appellant purportedly to comply
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with the judgment dated 1.6.2016 in W.P.(C) No.18879 of 2016 filed by respondents 3 and 4 therein. According to the appellant, judgment in W.P.(C) No.18879 of 2016 was obtained behind his back. Appellant has further submitted that on receipt of Ext.P8 notice from the authority under the Transfer of Registry Rules, 1966, appellant/petitioner and his mother submitted petitions explaining the real state of affairs. Though pendency of the suit was informed to respondent No.1, attempt has been made to enter into the property.
5. On the above grounds, W.P.(C) No.31348 of 2016 has been filed for a writ of certiorari to quash Ext.P7 mutation of revenue records and Ext.P8 notice issued for fixing the boundaries. Appellant has also sought for a mandamus directing respondents 3 and 4 not to initiate any proceedings till the disposal of O.S.No.289 of 2014 (Ext.P3) pending on the file of Munsiff Court, Kalpetta. Before the writ court, learned Government Pleader has submitted that the subject property in WP(C) No.18879/2016 and the suit properties are entirely different. Taking note of the submissions of the learned counsel appearing for both parties, writ court observed that it is for the petitioner to impress upon the trial court where the suit is pending and
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to prove the ownership of the property. Writ court has further observed that if the properties involved in the judgment rendered by this Court in WP(C) No.18879/2016 and O.S.No.289 of 2014 on the file of Munsiff Court, Kalpetta are different, petitioner is not entitled to get any relief in the writ petition. So saying, writ court dismissed the writ petition, granting liberty to the appellant/petitioner to produce necessary documents in O.S.No.289 of 2014 on the file of Munsiff Court, Kalpetta to establish that the property involved in the judgment rendered by this Court in WP(C) No.18879/2016 as well as the suit property are one and the same.
6. Being aggrieved, instant appeal is filed on the grounds, inter alia, that writ court has failed to consider that when there is a civil suit pending on the file of Munsiff Court, Kalpetta between the appellant and respondents 3 and 4, Ext.P7 order effecting mutation of property and Ext.P8 notice for fixing the boundaries are liable to be set aside. Appellant has further contended that when a suit is pending, subdivision of properties is not possible. Though Mr.K.A. Sreejith, learned counsel for the appellant, made submissions on the above grounds, we are not inclined to accept the contention for the reason
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that mutation of revenue records has been ordered as per Transfer of Registry Rules, 1966. Perusal of the said rules shows that in supersession of the rules laid down in the Travancore & Cochin Land Revenue Manuals, the Madras B.S.O No.31 and the unified rules issued by the Travancore-Cochin Goverment in their Notification R. Dis.No.7449/52/Rd. dt. 17.09.1953 relating to the transfer of revenue registry, the Government of Kerala issued the unified rules for the Transfer of Registry.
7. Rule 3 of the Transfer of Registry Rules, 1966 deals with effecting transfer of registry and the procedure thereof. Rule 11 empowers the Tahsildar to effect transfer of Registry. Rule 18 (i) of the Transfer of Registry Rules, 1966 provides for an appeal and it reads thus:-
“An appeal against an order passed by the Revenue Inspector shall lie to the Tahsildar and an appeal against the order passed by the Tahsildar or the Deputy Tahsildar shall lie to the Revenue Divisional Officer. Appeals shall be presented within 30 days from the date of receipt of the order. In computing the period of 30 days, the time taken for obtaining a copy of the order shall be excluded.”
8. Rule 20 of the said rules provides for revision as against the
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order made by the appellate authority. Thus, from the scheme of Transfer of Registry Rules, 1966, there is hierarchy of authorities, in other words, appellate and revisional authorities to mandate the correction of the order passed. Materials on record deduce that notice
has been effected having regard to the judgment passed in WP(C) No.18879/2016 dated 1.6.2016, by which a learned Single Judge of this Court has directed the Additional Tahsildar, Vythiri, respondent No.1, to consider the request of Mr.K.Kunjabdulla, for effecting mutation of the property covered by Ext.P1 sale deed therein, within six weeks from the date of passing the order.
9. Respondent No.1 herein has passed orders as per the judgment of this Court in WP(C) No.18879/2016 dated 1.6.2016 and therefore, he cannot be found fault with. As rightly observed by the writ court, if the properties are entirely different and mutation of the property has been erroneous, evidence has to be adduced before the trial court where the suit is pending. Petitioner/appellant has the benefit of interim injunction. Writ court has rightly dismissed W.P.(C) No.31348 of 2016 granting liberty to the appellant to produce necessary documents in the suit and to establish that the property
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involved in the judgment rendered by this Court in WP(C) No.18879/2016 and the property in O.S.No.289 of 2014 on the file of Munsiff Court, Kalpetta is one and the same. In this context, it is relevant to refer to the decision of the Hon'ble Apex Court in **Bokaro**
**and Ramgur Ltd. v. The State of Bihar and another** [ **AIR 1963 SC 516]** . In the said decision, it was held that to apply under Article 226 of the Constitution of India on the ground of infringement of fundamental right to hold property, the applicant must establish that he has the title to that property and if his title itself is in dispute and is the subject matter in dispute, he cannot maintain a petition under Article 226 of the Constitution of India.
10. It is also apposite to refer to prayer No.2 in the writ petition. It runs as follows:-
“This Honourable Court may be pleased to invoke its jurisdiction vested under Article 226 of Constitution of India by way of writ of mandamus or any other appropriate writ direction or order directing Respondents 3 and 4 not to initiate any proceedings till the culmination of Ext.P3 suit.”
11. In the context of the said prayer, the decision of the Hon'ble
Apex Court in **Kalyan Singh v. State of Uttar Pradesh and others**
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**[AIR 1962 SC 1183]** assumes relevance. In the said decision, it was held that in order to obtain a writ or order in the nature of mandamus the applicant has to satisfy that he got a legal right to the performance of a legal duty by the party against whom mandamus is sought and
such right must be subsisting on the date of the petition.
In the light of the aforesaid decisions and factual matrix obtained in the case, we find no error in the impugned judgment warranting interference.
Writ appeal is dismissed.
Sd/-
**S.MANIKUMAR**
**CHIEF JUSTICE**
Sd/-
**C.T.RAVIKUMAR JUDGE**
spc/
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