RAMANATHA PRABHU N. v. STATE OF KERALA & ORS

**WP(C) NO. 5185 OF 2021** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **WP(C) NO. 5185 OF 2021** ## **PETITIONER/S:** RAMANATHA PRABHU N., AGED 55 YEARS, S/O. LATE NARAYANA PRABHU N., PEROLE, NILESHWAR, KASARAGOD-671314. BY ADVS. ARUN KRISHNA DHAN SHRI.T.K.SANDEEP SRI.ARJUN SREEDHAR ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE VILLAGE OFFICER, VILLAGE OFFICE, PEROLE, NILESHWAR-671314. 3 THE TAHSILDAR, HOSDURG TALUK, KASARAGOD, PIN-671315. 4 SPECIAL TAHSILDAR (L.A.), LAND ACQUISITION, TALUK OFFICE COMPOUND, KASARAGOD -671121. 5 THE DISTRICT COLLECTOR, CIVIL STATION, KASARGOD, PIN-671123. *6 ADDL R6 : VISWANATHA PRABHU, S/O.LATE N.KESAVA PRABHU, AGED 67, RESIDING AT KESHAV NIVAS, CONVENT JUNCTION, PEROLE, NILESWAR VILLAGE, HOSDURG TALUK, NILESHWAR P.O., KASARGOD-671 314. **WP(C) NO. 5185 OF 2021** **2** * ADDITIONAL 6TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 23.07.2021 IN I.A.NO.1 OF 2021. BY ADV G.KRISHNAKUMAR SMT K AMMINIKUTTY, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 5185 OF 2021** **3** ## **JUDGMENT** Being aggrieved by the refusal of the respondents to issue revenue records to the petitioner in respect of an item of property possessed by him, the petitioner has approached this Court with this writ petition filed under Article 226 of the Constitution of India. 2. The petitioner states that he is the absolute owner in title and possession of property admeasuring 8 cents and 174 cents of land together with a residential building situated in Resurvey No.268/6pt7 and 266/1 of Perole Village, Hosdurg Taluk. In order to substantiate the same, the petitioner has produced Ext.P1 basic tax receipt dated 11.09.2020 issued in his favour. According to the petitioner, a portion of the property is the subject matter of acquisition for widening of the Nileshwar-Edathodu road. A notice was issued on 25.01.2021 by the Special Tahsildar directing the petitioner to produce documents to substantiate his ownership. He contends that immediately thereafter, an application was filed before the 2nd respondent for issuance of a possession certificate. His grievance is that his request was refused on the ground that a civil suit is pending in respect of the aforesaid property. It is in the afore circumstances, that the petitioner is before this Court seeking the following reliefs. (i) issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to issue possession certificate **WP(C) NO. 5185 OF 2021** **4** in respect of the petitioner’s property in Rsy No.268/6pt7 & 266/1 of Perole Village, Hosdurg Taluk, expeditiously and within such time period as may be stipulated by this Hon’ble Court; (ii)issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent No.2 to consider Ext.P4 representation and to issue possession certificate in respect of the petitioner’s property in Rsy No.268/6pt7 & 266/1 of Perole Village, Hosdurg Taluk, expeditiously and within such time period as may be stipulated by this Hon’ble Court; (iii) to award the costs of these proceedings. 3. In the course of proceedings, I.A.No.1/2021 was filed by additional 6th respondent seeking to implead himself. In the application, it was contended that the said additional respondent was also a co-owner in joint possession of the properties and the petitioner is not entitled to the reliefs claimed in the writ petition. Though serious objection was raised by the petitioner to the said application, the same was allowed by this Court. 4. I have heard Sri.Arun Krishna Dhan the learned counsel appearing for the petitioner and Sri.G.Krishnakumar, the learned counsel appearing for the additional 6th respondent as well as the learned Government Pleader. ## 5. I have considered the submissions advanced. 6. The records would reveal that a certain Narayana Prabhu, the father of the petitioner herein, obtained jenmom rights over an item of property by virtue of a purchase certificate issued to him by the Land Tribunal. The additional 6th respondent along with certain others on **WP(C) NO. 5185 OF 2021** **5** becoming aware of the issuance of the purchase certificate approached the Appellate Tribunal and filed an appeal along with an application for condonation of delay. The appellate Tribunal dismissed the application for condonation of delay and the appeals were also consequently dismissed. Challenging the order passed by the Appellate Tribunal, CRP Nos.2126/1987, 2350/1987, 2350/1987 and 92 of 1988 were preferred before this Court. A learned Single Judge of this Court by Ext.P3 order dated 11.10.1988 refused to interfere with the order and disposed of the Civil Revision petitions. Paragraph No.4 of the order is illuminative and is extracted below for convenience. ‘It is admitted that the landlord’s rights belonged to three Devaswoms and that the disputed properties are in the possession of tenants. Suo motu proceedings were initiated only for the benefit of Shri.N.Narayana Prabhu, the 1st respondent. The petitioners’ case is that they are co-owners along with Shri.Narayana Prabhu and they are also entitled to the tenancy rights. It is stated before me that the common ancestress was one Annappa Prabhu who had three sons. Rama Prabhu, Narasimha Prabhu and Keshava Prabhu. The respondent, Narayana Prabhu is the son of Rama Prabhu while the petitioners are the children of Keshava Prabhu. I am not saying whether the genealogy is correct or not. If, therefore, the contention of the petitioners is that the tenancy did not belong to Narayan Prabhu alone but also in co-ownership to the petitioners and others, that is a question which has to be decided in appropriate proceedings in civil court. The findings that there is a tenancy cannot then be disputed. The question as to whether the tenancy belonged to Narayana Prabhu alone or to all the other members of the family and to the petitioners also will be a matter to be considered in a civil suit if and when **WP(C) NO. 5185 OF 2021** **6** any suit is filed by the aggrieved party. Till a decision is rendered in the said suit, the 1st respondent Narayana Prabhu will be able to continue in possession on his own right on the strength of the orders passed by the Land Tribunal. The petitioners’ remedy was therefore not to file any appeal against the respondent, but to file a civil suit as observed earlier.’ 7. In Ext.P3, this Court had reserved the right of the petitioners therein to institute civil suit before the appropriate court to determine the issue as to whether the tenancy belongs to Narayana Prabhu the predecessor in interest of the petitioner herein alone or to the additional respondent and the others. However, it was emphatically held that till such a decision is rendered in the said suit, Sri. Narayana Prabhu was entitled to continue in possession on his own right on the strength of the orders passed by the Land Tribunal. Though, O.S.No.52/2001 was filed before the Sub Court, Hosdurg, no final orders have been passed in the said suit till date. The petitioner herein is the son of Sri. Narayana Prabhu and he is possessing the property on the strength of the previous orders passed by the Land Tribunal as confirmed by Ext.P3 order. 8. The only reason stated for non-issuance of possession certificate is the pendency of a partition suit filed by certain members of the family. As held by this Court in **Nevin Raju v. S. Basheer** [2015 (3) KLJ 197], pendency of a suit is no ground to refuse the application filed by the petitioner for issuance of revenue records. As is evident from Ext.P1, mutation has been effected in the name of the petitioner and he has been **WP(C) NO. 5185 OF 2021** **7** remitting tax in respect of the property. In that view of the matter, the petitioner is entitled to succeed. There will be a direction to the 2nd respondent to consider Ext.P4 representation submitted by the petitioner and to issue the revenue records sought for by the petitioner in respect of the property covered under Ext.P1, expeditiously, in any event, within a period of two weeks from the date of production of a copy of this judgment. However, it is made clear that the rights of the petitioner, as well as the party respondents, shall be subject to the determination of final rights of the parties in O.S.No.52/2001 on the file of the Court of the Subordinate Judge, Hosdurg. This writ petition will stand allowed. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** SMF **WP(C) NO. 5185 OF 2021** **8** ## **APPENDIX OF WP(C) 5185/2021** PETITIONER(S) EXHIBITS : EXHIBIT P1 A TRUE COPY OF THE BASIC TAX RECEIPT DATED 11.9.2020 ISSUED TO THE PETITIONER. EXHIBIT P2 A TRUE COPY OF THE NOTICE NO.B-01/2020 DATED 25.1.2021 ISSUED TO THE PETITIONER. EXHIBIT P3 A TRUE COPY OF THE ORDER IN C.R.P.NOS.2126/1987 & CONNECTED CASES PASSED BY THIS HON'BLE COURT. EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 12.2.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. RESPONDENT(S) EXHIBITS : NIL