Kabeer v. Village Officer, Karakkunnu Village; Tahsildhar, Ernad Taluk Office; The District Collector, Malappuram; Addl.R4 to Addl.R7; Abdul Nazar; Abdul Majeed; Mariyumma; Suharabi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942** ## **WP(C).No.21853 OF 2019(F)** ## **PETITIONER/S:** **KABEER, AGED 35 YEARS, S/O.KARIKKAL ALAVI, KARAKKUNNAM DESOM, KARAKKUNNU.P.O, MALAPPURAM-676123.** **BY ADVS. SRI.M.H.ASIF ALI SRI.ROHIT NANDAKUMAR SMT.SHAIMA VAHAB** ## **RESPONDENT/S:** * |**1**|**VILLAGE OFFICER,**| |---|---| ||**KARAKKUNNU VILLAGE, VILLAGE OFFICE, KARAKKUNNU,**| ||**MALAPPURAM -676123.**| |**2**|**TAHASILDHAR,**| ||**ERANAD TALUK OFFICE, MANJERI, MALAPPURAM-676517.**| |**3**|**THE DISTRICT COLLECTOR,**| ||**COLLECTORATE, CIVIL STATION, MALAPPURAM -676505.**| ||**ADDL.R4 TO R7 IMPLEADED:**| |**4**|**ABDUL NAZAR,**| ||**AGED 47 YEARS,**| ||**S/O.POONTHIRUTHI KUNJAHAMMED, ERNADU,**| ||**KARAKKUNNU P.O, MALAPPURAM - 676 123.**| |**5**|**ABDUL MAJEED,**| ||**AGED 52 YEARS,**| ||**S/O.POONTHIRUTHI KUNJAHAMMED, ERNADU,**| ||**KARAKKUNNU P.O, MALAPPURAM - 676 123.**| |**6**|**MARIYUMMA,**| ||**AGED 58 YEARS,**| ||**D/O.POONTHIRUTHI KUNJAHAMMED, ERNADU,**| ||**KARAKKUNNU P.O, MALAPPURAM - 676 123.**| |**7**|**SUHARABI,**| ||**AGED 50 YEARS,**| **WP(C).No.21853 OF 2019** **2** **W/O.KAPOOR MOYTHEEN, PAYYANADU, NELLIKKUTHU P O, MALAPPURAM - 676 122.** * **ADDITIONAL RESPONDENT NOS.4 TO 7 ARE IMPLEADED AS PER ORDER DATED 19/09/2019 IN IA.NO.1/2019.** **R1 TO R3 BY SR.GOVERNMENT PLEADER SMT.SHEEJA C S R4 & R5 BY ADV. SRI.C.DINESH R6 BY ADV. SMT.M.R.MINI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.21853 OF 2019** **3** ## **JUDGMENT** The petitioner states that he is the owner in title and possession of property having an extent of 2.84 Ares comprised in Re-Sy No.193/5 in Block No. 66 of Karakkunnu village. He acquired rights over the property on the cover of Ext.P1 settlement deed executed by his mother in his favour. Reference is made to Ext.P2 and it is contended that the petitioner has remitted tax on 23.1.2017 in respect of the above item of property. 2. According to the petitioner, the additional 4th respondent, who is his uncle has instituted O.S.No.337 of 2016 before the Munsiff Court, Manjeri seeking partition. The learned Munsiff has passed an order of injunction interdicting the defendant and their men from committing any act of waste. The petitioner later got impleaded and is contesting the proceeding. 3. The petitioner states that the learned Munsiff has not interdicted the revenue authorities from effecting mutation or in accepting tax. However, when the petitioner approached, the 1st respondent seeking for issuance of a possession certificate and for remitting land tax in respect of the property covered under Exts.P1 and P2, his request was refused. The petitioner states that being aggrieved, he approached the 2nd respondent and sought for issuance of directions to the 1st respondent to issue the documents sought for. By Ext.P6 communication dated 7.9.2018, the 2nd **WP(C).No.21853 OF 2019** **4** respondent is stated to have clarified that there is no impediment in collecting tax and in issuing possession certificate, since no interdictory orders have been passed by the Civil Court. He contends that later Ext.P10 order was passed by the Tahsildar on the basis of legal opinion received from the office of the District Government Pleader that the request made by the petitioner need not be accepted due to the pendency of the suit. It is in the aforesaid background that the petitioner is before this Court seeking to quash Ext.P4, P7 and P10 and for a further direction to the 1st respondent to receive land tax and issue possession certificate to the petitioner in respect of property covered under Ext.P1 settlement deed. 4. The additional 4th respondent has filed a counter affidavit wherein it is stated that what has been transferred to the petitioner is property having an extent of 2.84 Ares falling in Sy. No.193/10. Reference is made to Ext.R4(b) and it is contended that the property settled in favour of the petitioner by his mother was in fact acquired by her from Sri. Majeed, her brother by Ext.R4(b) sale deed. The Survey number of the assigned property is Re-Sy. No.193/9 of Karakkunnu village and not Re-Sy. No.193/10 as erroneously stated in Ext.P1. It is contended that it was with ill motive that the Re-Survey number of the property was shown as 193/10 in Ext.P1 deed instead of Re-sy.No.193/9 and thereafter the petitioner managed to remit the tax as per Ext.P2 by showing the Survey number as Sy.No.193/10 (193/5). According to the respondents, the manipulations which have been carried out **WP(C).No.21853 OF 2019** **5** by the petitioner is clear from Ext.R4(a) to Ext.R4(c) and the petitioner having approached this Court with unclean hands, is not entitled to any discretionary relief. 5. A statement has been filed by the 2nd respondent as directed by this Court. It is stated that Smt. Mariyam, the mother of the petitioner had approached the 1st respondent in the year 2016 and had requested for tracing out the correct Survey Number of the property obtained by her from Sri. Majeed. The 1st respondent with the assistance of the Taluk Surveyor, Ernad has identified the resurvey number and it was found to be ReSy.No.193/5 of Block No.66 of Karakkunnu village. The mother of the petitioner was asked to file an appropriate application to correct the survey number. However, without doing so, she transferred the whole extent to the petitioner. It is also stated that old Survey Number 193/9 and 193/5 of Block Number 66 is Sy.No.383/1 of Karakkunnu village. 6. Sri. M.H. Asif Ali, the learned counsel appearing for the petitioner submits that in view of the statement filed by the 2nd respondent, the petitioner shall approach the concerned respondent and file application for correction of Re-survey number. It is submitted that after effecting correction, he shall file a fresh application to remit land tax and for issuance of possession certificate. The learned counsel prays that necessary directions be issued to the said respondent to consider his application in the light of the various precedents. The learned counsel would rely on the decisions of this **WP(C).No.21853 OF 2019** **6** Court in **Rajkumar S. and Others v. Tahsildar, Devikulam[1]** , **Sudan K.K. and Ors. V. State of Kerala and Ors.[2]** , **George Pothen and Others v. State of Kerala and Others[3]** and in **Larson T. George v. State of Kerala[4]** , to bring home his point that a landholder is liable to pay tax and the same is bound to be accepted by the revenue authorities. He would contend that in **Sawarni (Smt.) v. Inderkaur (Smt.) and Others[5]** , the Supreme Court has held that mutation of property and acceptance of land tax will not, by itself either create or extinguish title nor has it any presumptive value on title and it only enables the person in whose favour the mutation has been effected to pay land revenue in question. He would also rely on a decision of this Court in **Nevin Raju v. S. Basheer and Ors[6]** and it is argued that pendency of civil cases is no reason or an impediment for effecting mutation unless specific interdictory orders are issued by the civil court. 7. I have heard Sri. C. Dinesh, who submitted that the attempt of the petitioner is to remit tax in respect of an item of property over which he has no right. He would also contend that in view of the pendency of the civil suit the revenue authorities were justified in refusing his request. 8. The learned Government Pleader submits that it is for the petitioner to approach the authorities seeking correction of survey number. > 1 (2020 (3) KHC 270) 2 (2013 (4) KHC 201) > 3 (2018 (4) KHC 7958) > 4 (2018 (5) KHC 960) > 5 (1996 KHC 964) > 6 (2015 (3) KLJ 197) **WP(C).No.21853 OF 2019** **7** Only thereafter can his application be entertained and a decision be taken on the basis of the precedents cited. 9. I have considered the submissions advanced. From the statement filed by the learned Government Pleader, it is apparent that some mistakes have been crept in, insofar as the re-survey number of the property is concerned. In Ext.P1 and P2, the Survey Number is shown as 193/10 whereas in the prior deed, the Sy. No. is shown as Re-Sy. No.193/9. It is seen that in Ext.P2, Re-Sy. No.193/5 is also seen written. It appears from the statement filed by the 2nd respondent that the correct re-survey number of the land is Re-Sy. No.193/5 of Block No.66 of Karakkunnu Village and it forms part of Old Sy. No.383/1 of Karakkunnu Village. In that view of the matter, the following orders are issued; a) The petitioner shall approach the 2nd respondent and file an application to correct the Re-survey number from 193/10 to 193/5 of Block No.66 of Karakkunnu Village. On such an application being filed within a period of three weeks from today, the competent among respondents shall take up the same and pass orders as per procedure and in accordance with law with notice to the petitioner and affected parties. b) If correction is made, the petitioner may file an application to issue possession certificate and to effect mutation and remit tax in respect of the property. The said application shall **WP(C).No.21853 OF 2019** **8** be taken up and orders shall be passed in the light of the precedents cited supra. Orders shall be passed in such case, expeditiously, at any rate, within a period of 2 months from the date of filing of the application. This petition is disposed of. **SD/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** ps **WP(C).No.21853 OF 2019** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **A TRUE COPY OF THE SETTLEMENT DEED NO.207/1/17 OF MANJERI S.R.O. DT.11.01.2017.** **EXHIBIT P2** **A TRUE COPY OF THE LAND TAX RECEIPT IN RESPECT OF PROPERTY IN RE.SY NO.193/5 IN BLOCK NO.66 OF KARAKKUNNU VILLAGE DT.23.01.2017 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P3 A TRUE COPY OF THE AD INTERIM INJUNCTION ORDER DT.29.09.2016 IN IA NO.2351/2016 IN OS.337/2016.** - **EXHIBIT P4 A TRUE COPY OF COMMUNICATION DATED 28/04/2017 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE APPLICATION DATED 30.06.2017 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF COMMUNICATION DT.07.09.2018 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF LETTER BEARING NO.230/2018 DATED 22/09/2018 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF APPLICATION DATED 19/09/2018 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF APPLICATION DATED 06/10/2018 PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P10 A TRUE COPY OF COMMUNICATION BEARING NO.B2-7359/17 DT.01.04.2019 BY THE 2ND RESPONDENT.** - **EXHIBIT P11 A TRUE COPY OF LEGAL OPINION NUMBERED AS D.143/19 DATED 27/03/2019 FROM THE OFFICE OF DISTRICT GOVERNMENT PLEADER, MANJERI** **WP(C).No.21853 OF 2019** **10** **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(a) TRUE COPY OF THE SALE DEED NO.247/1998 OF MANJERI SUB REGISTRY DATED 18.1.1988.** **EXHIBIT R4(b) TRUE COPY OF THE SALE DEED BEARING NO.1803 OF 2001 DATED 26.4.2001. EXHIBIT R4(c) TRUE COPY OF THE DOCUMENT NO.1149 OF 2018 DATED 11.5.2018. EXHIBIT R4(d) TRUE COPY OF THE PLAINT IN O.S.337 OF 2016 PENDING BEFORE THE MUNSIFF COURT, MANJERI DATED 9.9.2016.** **//TRUE COPY// P.A.TO JUDGE**