Kerala High Court
Mohammedkutty vs State Of Kerala on 31 January, 1997
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 20TH DAY OF OCTOBER 2017/28TH ASWINA, 1939
WP(C).No. 2801 of 2017 (A)
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PETITIONER(S):
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MOHAMMEDKUTTY
AGED 66 YEARS, S/O. LATE CHALILAKATH KUNHAMMEDUTY
A.R.NAGAR AMSOM, PUKAYUR DESOM, TIRURANGADI,
BY ADV. SMT.DENNIS VARGHESE
RESPONDENT(S):
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1. STATE OF KERALA
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM PIN-695001
2. THE TAHSILDAR
TIRURANGADI, MALAPPURAM PIN-676306
3. THE VILLAGE OFFICER
ABDUL RAHMAN NAGAR,
TIRUR, MALAPPURAM PIN-676101
4. N.C.SAMI
A.R.NAGAR AMSOM AND DESOM,
TIRURANGADI TALUK MALAPPURAM PIN-676306
5. N.C.BALAN
A.R.NAGAR AMSOM AND DESOM,
TIRURANGADI TALUK MALAPPURAM PIN-676306
6. N.C.GOPALAKRISHNAN
A.R.NAGAR AMSOM AND DESOM,
TIRURANGADI TALUK MALAPPURAM PIN-676306
7. N.C.VASUDEVAN
A.R.NAGAR AMSOM AND DESOM,
TIRURANGADI TALUK MALAPPURAM PIN-676306
8. N.C.RADHAKRISHNAN
A.R.NAGAR AMSOM AND DESOM,
TIRURANGADI TALUK MALAPPURAM PIN-676306
R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.P.M.MANOJ
R4,R6,R8 BY ADV. SRI.K.JAYESH MOHANKUMAR
R4,R6,R8 BY ADV. SMT.VANDANA MENON
R4,R6,R8,R5,R7 BY ADV. SRI.T.SETHUMADHAVAN (SR.)
R4,R6,R8,R5,R7 BY ADV. SRI.PUSHPARAJAN KODOTH
R4,R6,R8,R5,R7 BY ADV. SMT.N.DEEPA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
20-9-2017, THE COURT ON 20.10.2017 DELIVERED THE FOLLOWING:
WP(C).No. 2801 of 2017 (A)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN OS NO.2/1992 OF THE
MUNSIFF'S COURT, PARAPPANANGADI DATED 31.01.1997
EXHIBIT P2: TRUE COPY OF THE JUDGMENT IN AS NO.39/1997 ON THE
FILES OF THE SUBORDINATE JUDGES COURT, TIRUR DATED 12.10.2006
EXHIBIT P3: TRUE COPY OF THE JUDGMENT IN RSA NO.293/2007 OF THIS
HON'BLE COURT DATED 06.7.07
EXHIBIT P4: TRUE COPY OF THE JUDGMENT IN RP NO1360/2008 OF THIS
HON'BLE COURT DATED 19.12.2008
EXHIBIT P5: TRUE COPY OF THE TAX PAID RECEIPT DATED 02.07.2004
EXHIBIT P6: TRUE COPY OF MEMORANDUM OF WRIT PETITION IN WPC
NO.19969/2016
EXHIBIT P7: TRUE COPY OF THE JUDGMENT IN WPC NO.19969 /2016 DATED
21.10.2016 OF THIS HON'BLE COURT
EXHIBIT P8: TRUE COPY OF THE ORDERS PASSE DBY THE VILLAGE OFFICER,
AR NAGAR VILLAGE, TIRURANGADI, MALAPPURAM
RESPONDENT(S)' EXHIBITS
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EXHIBIT R4(a): COPY OF ORDER IN R.P.NO.134/2017 DATED 10.2.2017.
EXHIBIT R4(b): COPY OF JUDGMENT IN W.P(C).NO.22730/2008 DATED
3.11.2008.
EXHIBIT R4(c): COPY OF BASIC TAX RECEIPT DATED 22.8.2007.
EXHIBIT R4(d): COPY OF ORDER IN O.A.NO.95/1983 ON THE FILE OF THE
LAND TRIBUNAL, PARAPPANANGADI.
/TRUE COPY/
PS TO JUDGE
ANU SIVARAMAN, J.
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W.P(C).No. 2801 of 2017
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Dated this the 20th day of October, 2017
JUDGMENT
The prayers in this writ petition are as follows:
"i. issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exhibit P8 order of the 3rd respondent and quashing the same.
ii. issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to accept the land tax in respect of the property of the petitioner covered by Exhibit P8 order of the Village Officer, A.R.Nagar Village Office, Tirurangadi., viz 99.5 cents in Sy.No.398/4 of A.R.Nagar Village, Tirurangadi."
2. Heard learned counsel for the petitioner, learned Government Pleader and the learned Senior Counsel appearing for respondents 4 to 8.
3. The case of the writ petitioner is as follows: The petitioner is the owner of 99.5 cents of land in Sy.No.398/4 of A.R.Nagar Village, Tirurangadi Taluk. The predecessor of respondents 4 to 8, one Nechichinakkal Kelu, filed O.S.No.2/1992 before the Munsiff's Court, Parappanangadi WP(C).2801/17 2 seeking a decree of injunction on the claim that the above property belongs to him. In Exhibit P1 judgment, the Munsiff's Court found that the petitioner and his siblings have title and possession over the property. In appeal, the Sub Court, Tirur as well as this Court confirmed Exhibit P1 judgment by Exhibits P2 and P3 respectively. The review petition instituted against Exhibit P3 judgment was dismissed by Exhibit P4. Exhibit P5 is the tax paid receipt of the property by the petitioner and others indicating mutation in favour of the petitioners. It is contended that when the Village Officer refused to accept tax from the petitioner, he filed W.P(C).No.19969 of 2016 and by Exhibit P7 judgment, the petitioner was relegated to the Village Officer. By Exhibit P8 order, the Village Officer came to the conclusion that there are several litigations touching the property and that tax cannot be accepted from the petitioner as the party respondents claim a right over the property. It is contended that the Village Officer has failed to note the fact that by Exhibit P4, all litigations have terminated finally and the title of the petitioner has been upheld upto this court. Exhibit P8 is, therefore, unsustainable in law.
4. It is contended by learned counsel for the petitioner that in view of the findings of the competent civil court which WP(C).2801/17 3 have become final, the claim raised by the party respondents over the petitioner's property stands concluded in favour of the petitioner. It is therefore contended that the refusal to effect mutation in favour of the petitioner was totally misconceived.
5. A counter affidavit has been filed by the 2nd respondent stating that from the contentions raised by the parties and from a perusal of the documents produced at the time of hearing, it was clear that a civil dispute was pending in respect of the property and therefore basic tax could not be accepted from the petitioner.
6. Respondents 4 to 8 have filed a detailed counter affidavit. It is contended by them that after the dismissal of the second appeal in the civil suit filed by the contesting respondents, a review petition had been filed and by Exhibit P4 order dated 19.12.2008, it was held that the question of title was not gone into by the Munsiff or Sub Judge and that there is no necessity to vacate the findings by reviewing the judgment in the second appeal. It was further stated as follows:
"....It is made clear that as the suit is one for injunction and it was dismissed for failure of plaintiffs to identify the plaint schedule property, dismissal of the suit will not prevent the plaintiff from instituting a suit based on title."
WP(C).2801/17 4
With this observation, the review petition was dismissed. It is contended that the Village Officer or the Tahsildar is not empowered to adjudicate on the question of title. It is stated that since both the petitioner and the contesting respondents are claiming title to the property, the finding in the impugned order that the issue can be decided only after a competent civil court renders a finding as to who has title over the property is unassailable. It is further stated that the contesting respondents have title to the property on the basis of Exhibit R4(d) purchase certificate and that they are entitled to remit basic tax in respect of the property. Any findings with regard to title as obtained by Exhibits P1 and P2 judgments are eschewed by Exhibit P4 order in review and therefore the contention is that in case the petitioner wants to establish that he is the person entitled to pay basic tax in respect of the property, he will have to file a fresh suit for establishing his title.
7. I have considered the contentions advanced. I have also perused the records of the authority which passed the impugned orders. It is clear from the records that the petitioner had produced a copy of the purchase certificate issued to the predecessor-in-interest of the petitioner on 22.3.1977, which WP(C).2801/17 5 was available before the 3rd respondent. Copy of the settlement register has also been produced. All the documents produced before this Court were also available in the files of the 3rd respondent. It is seen from the records that apart from the purchase certificate, which was relied upon by respondents 4 to 8 before the Civil Court, no other material was produced by the respondents before the Tahsildar. It is apparent from the findings of the civil court as contained in Exhibits P1 to P4 that the competent civil courts, on examination of evidence, had found that the purchase certificate relied upon by the contesting respondents was not sufficient to find that they had title and possession over the properties as claimed by them. It was held that there was no material to identify the property as the property admittedly is in the ownership and possession of the petitioner on the basis of the purchase certificate relied on by him. All that has been left open by Exhibit P4 order in review was the right of the contesting respondents to agitate the question of title to the property in properly constituted civil proceedings. Admittedly, no such proceedings had been instituted by respondents 4 to 8 or anybody claiming through them. In the above circumstances and in view of the findings contained in Exhibits P1 to P4, I am of the opinion that the WP(C).2801/17 6 contention raised to the effect that the petitioner has to file a further suit for declaration of his property before tax can be accepted from him is completely misconceived and is clearly an abdication of the authority granted to the Tahsildar in terms of the provisions of the Kerala Land Tax Act. Since the title of the petitioner to 99.5 cents of property in terms of the purchase certificate of the year 1977 is an admitted fact and since the survey number, in which the property is situated, covers several other properties as well, in view of the findings contained in Exhibits P1 and P2 judgments, I am of the opinion that the petitioner had established his status as holder of the property covered by the purchase certificate of 1977. If respondents 4 to 8 have a case that they are entitled to the very same property, it was for them to have approached the competent civil court and got the question of title adjudicated. In the absence of any such adjudicatory exercise, it is not open to them to contend, in the face of Exhibits P1 to P4, that land tax in respect of the property claimed by the petitioner shall not be accepted from them. The finding contained in Exhibit P7 to the effect that land tax can be accepted only after the title to the property is declared by the competent civil court is therefore erroneous and is not based on any material. The WP(C).2801/17 7 Tahsildar is duty bound to accept land tax from the holder of property in due course, though the acceptance of such tax by itself may not be decisive as to the title to the property in a properly constituted suit as to title. Exhibit P7 order is therefore set aside. The respondents are directed to receive basic tax from the petitioner in respect of the property covered by the purchase certificate and title deeds which he claims under. The acceptance of land tax will of course be subject to any findings by competent civil courts as to title, in a properly instituted proceeding.
The writ petition is ordered accordingly.
ANU SIVARAMAN JUDGE vgs