SIDDEEQUE ALI.P.K. v. THE DISTRICT COLLECTOR KOZHIKODE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** ## **WP(C) NO. 21611 OF 2019** ## **PETITIONER:** SIDDEEQUE ALI.P.K AGED 62 YEARS S/O. PILAKKALKANDI UMMER, CHEERATH HOUSE, KEEZHPARAMBA AMSOM, KUNIYIL DESOM, ERANAD TALUK, MALAPPURAM DISTRICT, 673 639, REPRESENTED BY HIS REGISTERED POWER OF ATTORNEY HOLDER ALI ASKAR, AGED 46 YEARS, S/O. K.V. ABDUSSALAM, MANAKAKT HOUSE, CHERUVADI, MAVOOR, KOZHIKODE DISTRICT 673 661. BY ADVS. R.RAMADAS SRI.T.SIVADASAN ## **RESPONDENTS:** 1 THE DISTRICT COLLECTOR KOZHIKODE , CIVIL STATION ROAD, 673 001. 2 THE TAHSILDAR, TALUK OFFICE, KOZHIKODE 673 001. 3 THE VILLAGE OFFICER, KUMARANELLOOR, KOZHIKODE 673 602. 4 A.J. JOHN, AGED 59 YEARS ADAPPOOR PUTHENPURAYIL , S/O. DECEASED ANNA JOSEPH RESIDING AT MANOTH HOUSE, KOODARANJI AMSOM, DESOM, P.O., KOODARANJI, MUKKOM KOZHIKODE DISTRICT, 673 604. **WP(C) NO. 21611 OF 2019** **2** BY ADVS SRI.PIRAPPANCODE V.S.SUDHIR SMT.SHEEJA.C.S., GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 21611 OF 2019** **3** ## **P.V.KUNHIKRISHNAN, J** -------------------------------W.P.(C).No.21611 of 2019 ------------------------------Dated this the 07[th] day of July, 2021 ## **JUDGMENT** According to the petitioner he is the absolute owner of 49.78 Ares of landed property comprised in re-survey No.24/1 (old Sy.No.70/1) of Kumaranelloor village, Kozhikode Taluk. According to the petitioner, the above property was originally belongs to one Unnimoyi as per Partition Deed No.2621/1952. Unnimoyi died and the property devolved to his son Vayalil Nechooli Aboobacker and his legal heirs. Legal heirs of Aboobacker relinquished their right. Hence Aboobacker became the absolute owner of the property. Aboobacker was paying Basic Land Tax for the above property and Exts.P1 series are the Tax receipts in the name of Aboobacker. The possession certificate obtained by Aboobacker is also produced as Ext.P1(b). Subsequently, as per Ext.P2 Sale Deed, the property was **WP(C) NO. 21611 OF 2019** **4** sold to the petitioner. Exts.P3 series are the Tax receipts showing that the petitioner was paying Basic Tax. Ext.P5 is the Thandaper register, in which the name of the petitioner is mentioned. Ext.P6 is the possession certificate in the name of the petitioner. 2. The grievance of the petitioner is that the 2[nd] respondent passed Exhibit P8 order in which, even the title of the petitioner in the property is found against him. According to the petitioner Ext.P8 order passed by the 2[nd] respondent is illegal and beyond his jurisdiction. The counsel submitted that, in the light of the title documents produced by the petitioner, he is the absolute owner of the property. 3. The contesting respondent No.4 filed a detailed counter affidavit producing several documents. According to him, his mother obtained 3.62 Acres of landed property in Re-Survey No.20/1 as per document No.1472/1974 of SRO Mukkom. According to the 4[th] respondent another **WP(C) NO. 21611 OF 2019** **5** stretch of land with an extent of 1.58 Acres also belongs his mother as per document No.1510/1974 of Mukkom SRO. That is situated in Re-Survey No.20/2 and 24/1. This is disputed by the petitioner. But according to 4[th] respondent, some of the property in Re-survey No.20/1 was declared as surplus land by the Taluk Land Board. Thereafter, 7E application under the Kerala Land Reforms Amendment Rules, 1970 was filed by the father and other siblings. The Land Tribunal (Devaswom) issued an order dated 10.01.2018 in their favour. The title certificate was also issued to them. According to the 4[th] respondent, the predecessors of the petitioner filed O.S.No.858/1997 before Munsiff Court, Kozhikode. It was an injunction suit. Ext.R4(h) is the judgment of the Civil Court by which the suit was dismissed. The matter reached up to this Court and as per Ext.R4(j), this Court dismissed the 2[nd] appeal vide order dated 17.02.2009 in R.S.A.No.71/2008. Thereafter, the matter reached before the 2[nd] respondent and the 2[nd] respondent passed Ext.P8 order considering all **WP(C) NO. 21611 OF 2019** **6** the contentions of the petitioner and the 4[th] respondent. According to 4[th] respondent, there is nothing to interfere in Ext.P8 order passed by the 2[nd] respondent. 4. Admittedly there is a civil dispute between the petitioner and the 4[th] respondent about the title of the disputed property. According to the petitioner, he is in possession and he has got title in the disputed property. According to the 4[th] respondent, he is in possession and he has got title in the property. Both parties produced documents to show that they are paying tax for the disputed property. In such circumstances Ext.P8 order was passed by the 2[nd] respondent. It is true that there is some findings in Ext.P8 about the title of the property. The 2[nd] respondent has no authority to pass such observations in Ext.P8 order. The 2[nd] respondent was actually directed by this Court as per Ext.P7 to decide the question based on the documents and orders passed by the Land Tribunal. The question of title need not be considered by the 2[nd] **WP(C) NO. 21611 OF 2019** **7** respondent. These are matters to be decided by the Civil Court. But, according to me, for that reason, Ext.P8 order need not be set aside _in toto_ . But I make it clear that, the question of title of the disputed property is to be decided by the Civil Court. The petitioner and the 4[th] respondent are free to approach the Civil Court by filing appropriate proceedings and if such a proceedings/suit is filed by the petitioner or the 4[th] respondent, the Civil Court will decide the same untrammeled by any observation in Ext.P8 order regarding the title. Of course, the Civil Court will do the same because Ext.P8 is not binding to the Civil Court. The petitioner and the 4[th] respondent are free to agitate all their contentions on title of the disputed property before Civil Court. All those questions are left open. 5. The main grievance of the petitioner is that till the matter is disposed by the Civil Court, the authorities concerned may not be allowed to accept land tax from the 4[th] respondent. Even if land tax is accepted that will not **WP(C) NO. 21611 OF 2019** **8** create title to the petitioner or the 4[th] respondent. Mutation of a property and acceptance of tax will not by itself either create or extinguish title nor has any presumptive value on title. It only enables the person in whose favour mutation has been effected to pay land revenue in question _**[Sawarni v. Inder Kaur and others (1996 (6) SCC 233) and Larson T. George v. State of Kerala (2019(1) KLT 128]**_ . Therefore, all the contentions of the parties about the title of the disputed property are left open. With these observations this writ petition is disposed. Sd/- **P.V.KUNHIKRISHNAN** **JUDGE** VPK **WP(C) NO. 21611 OF 2019** **9** ## **APPENDIX OF WP(C) 21611/2019** ## **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE LAND TAX RECEIPT NO.81 DATED 08/08/2000 ISSUED BY THE 3RD RESPONDENT TO VAYALIL NECHOOLI ABOOBACKER, FOR PAYMENT OF BASIC TAX FR THE YEAR 20002001 IN RESPECT OF THE PROPERTY. EXHIBIT P1(A) TRUE COPY OF THE LAND TAX RECEIPT NO.90 DATED 16/04/2001 ISSUED BY THE 3RD RESPONDENT TO VAYALIL NECHOOLI ABOOBACKER, FOR PAYMENT OF BASIC TAX FOR THE YEAR 20012002 IN RESPECT OF THE SAID ITEM OF PROPERTY. TRUE COPY OF THE POSSESSION CERTIFICATE EXHIBIT P1(B) DATED 03/07/2001 ISSUED BY THE 3RD RESPONDENT TO VAYALAIL NECHOOLI ABOOBACKER. TRUE COPY OF THE LAND TAX RECEIPT DATED EXHIBIT P1(C) 20/03/2007 ISSUED BY THE 3RD RESPONDENT TO VAYALIL NECHOOLI ABOOBACKER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2006-2007 IN RESPECT OF THE SAID PROPERTY. TRUE COPY OF RECEIPT NO.7945232 DATED 10/04/2007 ISSUED BY THE 3RD RESPONDENT TO EXHIBIT P1(D) VAYALIL NECHOOLI ABOOBACKER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2007-2008 IN RESPECT OF THE SAID PROPERTY. EXHIBIT P1(E) TRUE COPY OF RECEIPT NO.7549845 DATED 08/05/2008 ISSUED BY THE 3RD RESPONDENT TO VAYALIL NECHOOLI ABOOBACKER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2008-2009 IN RESPECT OF THE SAID PROPERTY. TRUE COPY OF RECEIPT NO.7497262 DATED 05/06/2009 ISSUED BY THE 3RD RESPONDENT TO EXHIBIT P1(F) VAYALIL NECHOOLI ABOOBACKER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2009-2010 IN RESPECT OF THE SAID PROPERTY.** **WP(C) NO. 21611 OF 2019** **10** **EXHIBIT P1(G) TRUE COPY OF RECEIPT NO.7395658 DATED 12/05/2010 ISSUED BY THE 3RD RESPONDENT TO VAYALIL NECHOOLI ABOOBACKER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2010-2011 IN RESPECT OF THE SAID PROPERTY. EXHIBIT P1(H) TRUE COPY OF RECEIPT NO.7406947 DATED 12/05/2011 ISSUED BY THE 3RD RESPONDENT TO VAYALIL NECHOOLI ABOOBACKER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2011-2012 IN RESPECT OF THE SAID PROPERTY. EXHIBIT P2 TRUE COPY OF THE REGISTERED SALE DEED NO.3733/2011 DATED 11/11/2011 OF SRO, MUKKAM. Exhibit P3 TRUE COPY OF THE BASIC TAX RECEIPT NO.I0612637 DATED 23/01/2013 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER HEREIN IN RESPECT OF 49.78 ARES OBTAINED BY HIM AS PER EXT.P3 SALE DEED AND COMPRISED IN R.S. NO.24/1, FOR THE PERIOD FROM 2012-13. Exhibit P3(A) TRUE COPY OF RECEIPT NO.088027 DATED 16/05/2013 ISSUED BY 3RD RESPONDENT TO THE PETITIONER FOR PAYMENT OF BASIC TAX FOR THE YEAR 2013-2014 IN RESPECT OF THE VERY SAME PROPERTY. Exhibit P3(B) TRUE COPY OF RECEIPT NO.5666700 DATED 18/07/2017 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER FOR PAYMENT OF BASIC TAX FOR THE PERIOD 2017-18 IN RESPECT OF THE VERY SAME PROPERTY OBTAINED BY HIM AS PER EXT.P3. Exhibit P4 TRUE COPY OF THE RECEIPT NO. KL11012503619/2018 DATED 29/10/2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER FOR PAYMENT OF BASIC TAX FOR THE PERIOD 20182019 IN RESPECT OF 49.78 ARES OF LANDED PROPERTY. Exhibit P5 TRUE COPY OF THE THANDAPER ACCOUNT IN RESPECT OF THANDAPER NO.205 MAINTAINED BY** **WP(C) NO. 21611 OF 2019** **11** **THE 3RD RESPONDENT AND ISSUED TO THE PETITIONER ON 27/02/2017 IN RESPECT OF 49.78 ARES IN R.S. NO.24/1.** **Exhibit P6 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 30/10/2018 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER IN RESPECT OF THE VERY SAME ITEM OF LANDED PROPERTY.** - **Exhibit P7 TRUE COPY OF THE JUDGMENT DATED 18/09/2018 IN WRIT PETITION NO.30587/2018 PASSED BY THIS HONOURABLE COURT.** - **Exhibit P8 TRUE COPY OF THE ORDER NO. B3-19641/12 DATED 11/06/2019 PASSED BY THE 2ND RESPONDENT.** - **Exhibit P9 TRUE COPY OF THE BASIC TAX RECEIPT KL11012503394/2019 DATED 12/06/2019 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** - **Exhibit P10 TRUE COPY OF THE STATEMENT OF FACTS SUBMITTED BY THE THEN TAHSILDAR, KOZHIKODE TO THE ADVOCATE GENERAL FOR FILING COUNTER AFFIDAVIT IN THE MATTER ALONG WITH THE COVERING LETTER DATED 10/11/2010 OBTAINED UNDER THE RIGHT TO INFORMATION ACT.** - **Exhibit P11 TRUE COPY OF THE REPORT DATED 09/01/2014 SUBMITTED BY THE VILLAGE OFFICER, KUMARANELLOOR TO THE 2ND RESPONDENT OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT.** - **RESPONDENTS'S EXHIBITS** - **Exhibit R4(A) TRUE COPY OF THE DOCUMENT NO.1472/1974 OF MUKKOM SUB REGISTRY, EXECUTED ON 04/07/1974.** **Exhibit R4(B) TRUE COPY OF THE DOCUMENT NO.1510/1974 OF MUKKOM SUB REGISTRY EXECUTED ON 05/07/1974.** **TRUE COPY OF THE JUDGMENT DATED 24/11/2015** **WP(C) NO. 21611 OF 2019** **12** **Exhibit R4(C) OF THIS HONOURABLE COURT IN WPC NO.35541/2015.** **Exhibit R4(D) TRUE COPY OF THE ORDER DATED 10/01/2018 IN SMC/OA-263/12 OF THE COURT OF THE LAND TRIBUNAL DEVASWOM, KOZHIKODE.** **Exhibit R4(E) TRUE COPY OF THE CERTIFICATE OF TITLE DATED 05/06/2018, CERTIFYING THAT SRI. JOSEPH, HUSBAND OF SMT. MANOTH ANNA AND MARY, ROSAMMA, JOHN (4TH RESPONDENT), PHILOMINA AND SHAJU, CHILDREN OF ANNA ARE THE TENANTS.** **Exhibit R4(F) TRUE COPY OF THE CHALAN EVIDENCING REMITTANCE OF RS.6,516/-.** **Exhibit R4(G) TRUE COPY OF THE REPRESENTATION RECEIVED BY THE 3RD RESPONDENT ON 07/06/2018.** - **Exhibit R4(H) TRUE COPY OF THE COMMON JUDGMENT DATED 18/01/2002 IN OS NO. 858/1997 AND 886/1997 OF THE MUNSIFF'S COURT, KOZHIKODE-2.** - **Exhibit R4(I) TRUE COPY OF THE COMMON JUDGMENT DATED 30/05/2006 IN A.S. 62/02 AND A.S. 116/03 OF THE SUB COURT, KOZHIKODE.** - **Exhibit R4(J) TRUE COPY OF THE JUDGMENT DATED 17/02/2009 OF THIS HONOURABLE COURT IN RSA NO.71/2008.** **Exhibit R4(K) TRUE COPY OF THE RECEIPT DATED 12/06/2019 ISSUED BY THE VILLAGE OFFICER, KUMARANALLUR.** **Exhibit R4(L) TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUMARANELLUR DATED 12/06/2019.**