Kerala High Court
A.Abdul Rasheed vs The Alappuzha Municipality on 30 April, 2012
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:-
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 1ST DAY OF AUGUST 2017/10TH SRAVANA, 1939
W.P(C).No.33446 of 2014(E)
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PETITIONER(S):-
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1. A.ABDUL RASHEED, S/O ABOOBACKER, AGED 54 YEARS,
AL-AMEEN MANZIL, MANAKKAD P.O., THIRUVANANTHAPURAM.
2. MOHAMMED ABDUL RASHEED, S/O A.MOHAMMED, AGED 48 YEARS,
THOOBA HOUSE, THOONGAMPARA, KATTAKADA P.O.,
THIRUVANANTHAPURAM.
BY ADVS.SRI.G.S.REGHUNATH
SRI.P.SHANES METHAR.
RESPONDENT(S):-
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1. THE ALAPPUZHA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY-688001.
2. THE SECRETARY,
ALAPPUZHA MUNICIPALITY-688001.
3. THE EXECUTIVE ENGINEER (L.S.G.D),
ALAPPUZHA MUNICIPALITY-688001.
4. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT (L.S.G.D),
SECRETARIAT, THIRUVANANTHAPURAM-695001.
R1 & R2 BY ADV. SRI.V.V.ASOKAN (SR.)
R1 & R2 BY ADV. SRI.MAYANKUTTY MATHER.K.I.
R1 & R2 BY STANDING COUNSEL SRI.AZAD BABU.
R3 & R4 BY GOVERNMENT PLEADER SMT.RAJI T.BHASKAR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-07-2017, THE COURT ON 01-08-2017 DELIVERED THE FOLLOWING:-
W.P(C).No.33446 of 2014 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS:-
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EXHIBIT P1: TRUE COPY OF THE SALE DEED NO.2061/2012 DATD 30.4.2012
OF S.R.O. ALAPPUZHA.
EXHIBIT P2: TRUE COPY OF THE SALE DEED NO.2062/2012 DATED
30.4.2012 OF S.R.O., ALAPPUZHA.
EXHIBIT P3: TRUE COPY OF THE TAX RECEIPT DATED 6.6.2012 ISSUED TO
THE IST PETITIONER.
EXHIBIT P4: TRUE COPY OF THE TAX RECEIPT DATED 6.6.2012 ISSUED TO
THE 2ND PETITIONER.
EXHIBIT P5: TRUE COPY OF THE APPLICATION FOR PERMIT
DATED 11.9.2012.
EXHIBIT P6: TRUE COPY OF THE PLAN SHOWING THE LOCATION OF THE
CANAL ON THE NORTHER SIDE.
EXHIBIT P7: TRUE COPY OF THE JUDGMENT IN WPC NO.24701/2012
DATED 19.6.2013.
EXHIBIT P8: TRUE COPY OF THE JUDGMENT DATED 30.10.2013 IN
WPC NO.19570/13.
EXHIBIT P9: TRUE COPY OF THE F.I.R. IN CRIME NO.1609/2013 OF THE
ALAPPUZHA SOUTH POLICE STATION.
EXHIBIT P10: TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER
DATED 21.1.2014 BEFORE THE IST RESPONDENT.
EXHIBIT P11: TRUE COPY OF THE NOTICE DATED 12.2.2014 ISSUED BY THE
IST RESPONDENT.
EXHIBIT P12: TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL
NO.297/2014 FILED BEFORE THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS, THIRUVANANTHAPRUAM
DATED 11.3.2014.
EXHIBIT P13: TRUE COPY OF THE NOTICE DATED 12.3.2014 ISSUED BY THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXHIBIT P14: TRUE COPY OF THE ORDER DATED 30.3.2013 OF THE
ADDITIONAL TAHSILDAR, TALUK OFFICE, AMBALAPPUZHA.
EXHIBIT P15: TRUE COPY OF THE ORDER DATED 17.2.02014 OF THE DEPUTY
TAHSILDAR, TALUK OFFICE, AMBALAPPUZHA.
W.P(C).No.33446 of 2014 (E) - 2 -
EXHIBIT P16: TRUE COPY OF THE ORDER DATED 8.7.2014. IN
WPC NO.17321/2014.
EXHIBIT P17: TRUE COPY OF THE PARTITION DEED NO.538/1956
DATED 29.2.1956.
EXHIBIT P18: TRUE COPY OF THE LIST OF DOCUMENTS UNDER WHICH
MUNICIPALITY OBTAINED TITLE TO PROPERTY UNDER VARIOUS
DOCUMENTS.
EXHIBIT P20: TRUE COPY OF THE DECREE IN OS NO.348/2011 DATED
4.4.2012 OF THE SUB COURT, ALAPPUZHA.
EXHIBIT P21: TRUE COPY OF THE COMPROMISE PETITION IN OS NO.348/2011
ON THE FILE OF THE SUB COURT, ALAPPUZHA
DATED 7.3.2012.
EXHIBIT P22: TRUE COPY OF THE MINUTES OF THE MEETING HELD ON
12.11.2008 ISSUED BY THE ALAPPUZHA MUNICIPALITY UNDER
THE RIGHT TO INFORMATION ACT.
EXHIBIT P23: TRUE COPY OF THE NOTICE DATED 24.9.2013 ISSUED BY THE
MUNICIPAL SECRETARY, ALAPPUZHA MUNICIPALITY.
EXHIBIT P24: TRUE COPY OF THE ORDER DATED 10.11.2014 OF THE
TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
EXHIBIT P25: TRUE COPY OF THE THANDAPER NO.3 OBTAINED UNDER
RIGHT TO INFORMATION ACT.
EXHIBIT P26: TRUE COPY OF THE APPEAL MEMORANDUM DATED 19.08.2013
ALONG WITH ANNEXURE FILED BEFORE THE SAID TAHSILDAR.
EXHIBIT P27: TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE
TAHSILDAR IN W.P.(C) NO.17321 OF 2014
DATED 14.10.2015.
EXHIBIT P28: TRUE COPY OF THE REPORT NO.N2-24619/12 OF
TAHSILDAR, AMBALAPPUZHA.
EXHIBIT P29: TRUE COPY OF THE APPLICATION DATED 21.11.2007 ALONG
WITH FEE RECEIPT FILED BEFORE THE TAHSILDAR,
AMBALAPUZHA.
EXHIBIT P30: TRUE COPY OF THE EXHIBIT P19 IN W.P.(C) NO.1732/2014
(LETTER DATED 20.02.2014 ISSUED BY PRINCIPAL
SECRETARY TO GOVERNMENT OF KERALA.
EXHIBIT P31: TRUE COPY OF THE EXHIBIT P20 AND IN W.P.(C)
NO.1732/2014 (NOTICE DATED 2.06.2014 ISSUED BY THE
ADDITIONAL TAHSILDAR, AMBALAPPUZHA.
W.P(C).No.33446 of 2014 (E) - 3 -
EXHIBIT P32: TRUE COPY OF THE EXHIBIT P21 IN W.P.(C) NO.1732/2014
(NOTICE DATED 28.06.2014 ISSUED BY ADDITIONAL
TAHSILDAR, AMBALAPPUZHA.
EXHIBIT P33: TRUE COPY OF THE APPEAL MEMORANDUM IN W.A.NO.405.2017
RESPONDENT(S)' EXHIBITS:-
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EXHIBIT R1(a) TRUE COPY OF THE SALE DEED NO.1195 DATED 2.7.1956
IN FAVOUR OF MEENAKSHI AMMAL.
EXHIBIT R1(b) TRUE COPY OF THE SALE DEED NO.400 DATED 3.2.1972
IN FAVOUR OF THE 3RD RESPONDENT.
EXHIBIT R1(c) TRUE COPY OF THE SALE DEED NO.399 DATED 3.2.1972 IN
FAVOUR OF THE 3RD RESPONDENT.
EXHIBIT R1(d) TRUE COPY OF THE PETITION SUBMITTED BY THE 1ST
RESPONDENT BEFORE THE DISTRICT COLLECTOR,
ALAPPUZHA DATED 26.6.2013.
EXHIBIT R1(e) TRUE COPY OF THE POKKUVARAVU APPEAL SUBMITTED BY
THE 2ND RESPONDENT BEFORE THE THSILDAR, AMBALAPUZHA
DATED 19.08.2013.
EXHIBIT R1(f) TRUE COPY OF THE NOTICE NO.E5-18225 DATED 24.09.2013
ISSUED BY THE 1ST RESPONDENT TO THE PETITIONERS.
EXHIBIT R1(g) TRUE COPY OF THE RELEVANT PAGE OF THE DESPATCH
REGISTER MAINTAINED BY THE MUNICIPALITY.
EXHIBIT R1(h) TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY
THE RESPONDENTS BEFORE THE TRIBUNAL FOR SELF
GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
EXHIBIT R1(i) TRUE COPY OF THE JUDGMENT DATED 30.03.2016 IN
WP(C).17321 OF 2014 OF THIS HON. COURT.
EXHIBIT R1(j) TRUE COPY OF THE JUDGMENT DATED 20.01.2017 IN
WP(C).2115 OF 2017 OF THIS HON. COURT.
EXHIBIT R1(k) NOTICE DATED 31.12.2016 ISSUED BY THE ADDL. TAHSILDAR,
POSTING THE POKKUVARAVU APPEAL FOR HEARING.
EXHIBIT R1(l) INTERIM ORDER DATED 28.02.2017 IN WRIT APPEAL
NO.405 OF 2017.
vku/- [ true copy ]
K. Vinod Chandran, J
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W.P.(C).No.33446 of 2014-E
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Dated this the 01st day of August, 2017
JUDGMENT
The petitioners challenge Exhibit P11, as confirmed by Exhibit P24 order of the Tribunal for Local Self Government Institutions [for brevity "Tribunal"] and Exhibit P23, which, the petitioners allege, was never served on the petitioners, but was produced before the Tribunal.
2. The question raised in the writ petition essentially is the denial of consideration of an application for building permit, to construct a wall on the southern and eastern boundaries of the properties owned by the petitioners, covered by Exhibits P1 and P2; the total extent of which is 1.13 Acres. The petitioners contend that the said properties are lying contiguous to the properties owned by the respondent-Municipality. The respondent-Municipality contends that there is no such property available and the petitioners have fraudulently created Exhibits P1 and P2, to reduce the property of the Municipality into their possession. Both the petitioners and the Municipality have purchased from parties; who trace their title to a WP(C) No.33446 of 2014 - 2 - partition deed of 1957. Though the claim is for the construction of a wall and consideration of a building permit, the petitioners in fact, by way of the writ petition, seek to assert their title over the properties covered by Exhibits P1 and P2 title deeds; over which properties the Municipality too raise a claim.
3. The learned Counsel appearing for the petitioners has painstakingly taken me through the documents to assert title over the 1.13 Acres comprised in Survey No.578/2A of Alappuzha West Village, now comprised in Re-survey No.81 of Block 53 (Exhibits P1 and P2). The petitioners trace their vendors' title to the deed produced as Exhibit P17, which is a partition deed of 1956, in which the vendors are described as the 'second branch'. The entire properties existed in the name of one Raman Vasudevan, who is said to be the 'Karanavar' of the tharawad; to which tharawad belonged the property. The respondent-Municipality trace the title of their vendors, to that of the "first branch' referred to in the very same partition deed.
4. The petitioners obtained the property by Exhibits P1 and P2 deeds. They contend that the deeds were executed in accordance with the compromise entered into by the persons representing the second branch as agreed to in Exhibit P21 compromise dated WP(C) No.33446 of 2014 - 3 - 07.03.2012 in a suit for partition. By the compromise, 1 Acre and 13 cents was found entitled to the plaintiff and 1st defendant in the partition suit, as agreed to be equally shared between the said parties. As per clause 6 of the compromise, it was also agreed that the said property would be sold to a third party for a consideration of not less than Rupees Ten Lakhs and shared equally by the plaintiff and the 1st defendant. As per the compromise dated 07.03.2012, Exhibits P1 and P2 deeds were executed on 13.04.2012. This was also in pursuance of the compromise decree at Exhibit P20 dated 04.04.2012. The petitioners paid tax as per Exhibits P3 and P4, of the respective properties they purchased as per Exhibits P1 and P2 title deeds. An application for permit to construct a compound wall (Exhibit P5) was filed before the Municipality on 11.09.2012. The dispute arose then and the petitioners submitted an application before the Taluk Surveyor for demarcation of the boundaries of their property and that belonging to the Municipality.
5. The petitioners filed W.P.(C) No.24701 of 2012, claiming that after the Taluk Surveyor had conducted measurement of the properties when boundary stones were attempted to be laid, certain Councillors representing the Municipality opposed the same. The WP(C) No.33446 of 2014 - 4 - petitioners also contended in the writ petition that the application for construction of a compound wall was kept pending by the Municipality without consideration. The Municipality, before this Court contended that the properties claimed by the petitioners belong to the Municipality and that they have already constructed a stadium and commercial complex in the property purchased by them from persons who acquired their title from Exhibit P17 partition deed. The title deeds, Exhibits P1 and P2, were alleged to be fraudlent. The writ petition was disposed of by Exhibit P7 judgment. The learned Single Judge found that the only prayer was for a direction to the survey department to complete the survey proceedings initiated by the petitioners, under Section 10 of the Survey and Boundaries Act. The obstruction of the Councillors, at any rate, was found to be totally illegal. The Municipality was found to be under an obligation to assist the survey authorities even if their claim was of a valid title. The title dispute had to concede to the procedure prescribed. If at all the Municipality had a claim of fraud having been committed in creating the title deeds of the petitioners, the Municipality was entitled to reject the application for building permit. But, the same had be done as per the procedure prescribed. The Court also directed the respondents, WP(C) No.33446 of 2014 - 5 - officials of the Survey Department, to complete the survey and reserved right of either of the parties, disputing the findings on survey, to challenge it in appropriate proceedings. It was found that if any property of the petitioners were found to be in the possession of the Municipality, it would be open for the petitioners to approach the appropriate forum for recovery of possession. The building permit application was also directed to be considered in accordance with the procedure prescribed.
6. Later it was alleged that the Municipality had removed the boundary marks, including the survey stones. The report of the Taluk Surveyor, called for by this Court in W.P.(C) No.19570 of 2013, admitted that the survey was conducted and the boundary stones were laid; which were, on later inspection, found to be missing. The Municipality contended that the stones laid were boundary stones and not survey stones. In the process, the survey effectively conceded to the petitioners'; property within the boundary stones which was in violation of Exhibit P7 judgment. The Division Bench directed a survey to be conducted with the assistance of an Advocate Commissioner. The survey was also conducted by the District Superintendent of Survey, Alappuzha; with police protection. Before the Division Bench, WP(C) No.33446 of 2014 - 6 - the Municipality had also submitted that they have filed an appeal against the mutation effected in favour of the petitioner under the Transfer of Registry Rules. The judgment is produced at Exhibit P8. Later to that, the application for building permit was declined as per Exhibit P11. Exhibit P11 informed the petitioners that since the proceedings under the Transfer of Registry Rules were pending, the Municipality was disabled from considering the application for construction of a compound wall.
7. Exhibit P12 was an appeal filed from the said order. Before the Tribunal, the Municipality produced Exhibit P23 dated 24.09.2013. This, according to the Municipality, was a communication issued long prior to Exhibit P11 and intimated the petitioners three objections with respect to the building permit application. The objections were that (i) the application had to be submitted through the Town Planning Committee, (ii) the property on which the construction was applied for, belongs to the Municipality and is in possession of the Municipality and (iii) the title deeds submitted were not valid. It was also pointed out in Exhibit P23 that the proceedings under the Transfer of Registry Rules initiated by the Municipality, for cancellation of the mutation effected was also pending. The WP(C) No.33446 of 2014 - 7 - Municipality before the Tribunal asserted that without a challenge to Exhibit P23, there could be no appeal against Exhibit P11. By Exhibit P24, the Tribunal held that the appeal was maintainable, but rejected it on merits confirming Exhibit P11.
8. Before the Tribunal, the Municipality questioned the maintainability of the appeal on the ground that Exhibit P11 was only a reply to a letter sent by the petitioners and in fact the building permit application was rejected by Exhibit P23. The Tribunal found that it was by Exhibit P11; the petitioners were made aware of the rejection of the building permit application. With respect to Exhibit P23, the Tribunal perused the registers maintained by the Municipality, since additional plea taken was of limitation against a challenge from Exhibit P23. The Tribunal found that Exhibit P7 judgment had specifically directed the Municipality to consider the application in accordance with the procedure prescribed and pass appropriate orders within a period of two months. The order was seen to have been passed after the judgment; but, however, the same was not seen received by the petitioners. No documents were available in the files perused; to substantiate the receipt of the order by the petitioners. The question of maintainability was found in favour of the petitioners. WP(C) No.33446 of 2014 - 8 -
9. The next issue considered by the Tribunal was the dispute between the Municipality and the petitioners as to the title of the property; claimed by the petitioners in accordance with Exhibits P1 and P2 title deeds. The Tribunal noticed the suit filed as O.S.No.348 of 2011 and the compromise entered into; pursuant to which the sale is alleged to have taken place. It was found that the compromise only resulted in the passing of a preliminary decree. The partition would happen only when a final decree is passed, the property is divided, the respective shares apportioned by metes and bounds and each of the party's shares delivered to them. The mutation effected on the basis of the partition effected by virtue of a compromise in a partition suit and the contention of the Municipality that it was a collusive suit was pertinently referred to. It was also found that no actual possession of the properties, were obtained by the appellants/petitioners. The recitals in the partition deed were referred to, to find that even the vendors did not have possession of the properties said to have been conveyed. Finding favour with the contention that the suit itself was a collusive affair, the Tribunal refused to interfere with the action of the Municipality. The appeals were dismissed, noticing the claim for title and possession raised by WP(C) No.33446 of 2014 - 9 - the Municipality; but, however, observing that the respondent would have to prove such claims before the proper forum. The appellants were also left remedy to move for final decree so as to obtain actual possession of the property conveyed by Exhibits P1 & P2.
10. The learned Counsel for the petitioners would contend that the Tribunal has misdirected itself, in so dismissing the appeal filed by the petitioners. Relying on the decision in Bimal Kumar and Another v. Shakuntala Debi and Others [(2012) 3 SCC 548] it was argued that when a compromise is filed in a partition suit admitting the respective shares, the allottment and the separate and exclusive possession of the individual shares by the respective parties; the preliminary decree drawn up incorporating the compromise is a final decree and hence executable. Acknowledging the distinction between a preliminary and final decree in a partition suit; it was held that the decree drawn up incorporating such final determination of rights of parties is in effect a final decree. It was also argued that even otherwise the necessary implication of the compromise and the sale entered into by the parties based on the compromise is only that, the petitioners would be co-owners of the property, who would be entitled to move for the construction of a compound wall to protect the WP(C) No.33446 of 2014 - 10 - property without prejudice to the right of the other co-owners. The Municipality, who has to consider the application, has absolutely no business to dispute title, is the contention. Reliance is also placed on the decisions in India Umbrella Manufacturing Co. & Others v. Bhagabandel Agarwalla (dead) by LRs. Savitri Agarwalla (Smt.) & Others [(2004) 3 SCC 178], Valsala v. Sundaran Nadar [1993 (2) KLT 67] and Velayudhan Pillai v. Krishnan Asan [1988 (2) KLT 472].
11. The learned Counsel for the petitioner also took me through the partition deed produced at Exhibit P17, which is of the year 1956. The plaintiff in O.S.No.348 of 2011 is said to be one of the persons (Uma, then aged 10), who, along with her mother and other siblings, are parties at Serial No.4. The other sharers referred to as party No.4 are the mother Arya Antherjanam and the siblings of Uma - Thrinethran Bhattathiripad, Sreedevi and Arya - all of whom were minors at the time of execution of the partition deed. The properties allotted to the persons at Serial No.4; Arya Antherjanam, who represented herself and the minors, is seen at page 10 of Exhibit P17, as B-Schedule allotted to the second branch. At page 15 of Exhibit P17, the properties under B-Schedule includes inter alia 3 WP(C) No.33446 of 2014 - 11 - Acres 16 cents in Survey No.578/2A. This, according to the petitioners, is the total extent of property from which they purchased 1.13 Acres; which alone remained in the possession of the sharers under the second branch at the time of sale.
12. The learned Counsel for the petitioners specifically points to the list of title deeds held by the Alappuzha Municipality, produced at Exhibit P8; wherein a claim raised under Survey No.578/2A is only for 0.03 cents. It is also pointed out, even the Municipality acknowledged the said properties to be in the possession and ownership of another; when they had decided to purchase properties lying contiguously, to theirs, as per Exhibit P22. Exhibit P22 is the minutes of a meeting of the Council of the Municipality on 12.11.2008 when Exhibits P1 and P2 had already come into existence and a mutation was effected as per P.V.No.2666. In page 8 of Exhibit P22, an extent of 113 cents and 52 links covered by P.V.2666 was resolved to be purchased and it is later to that such a turnabout has been made by the Municipality to illegally reduce the properties purchased by the petitioners to the possession and ownership of the Municipality.
WP(C) No.33446 of 2014 - 12 -
13. The petitioners also would point out that as of now the Transfer of Registry Appeal is over, as is discernible from Exhibit P15 as early as on 17.02.2014. Nothing remains now, but a consideration of building permit application. It is, hence, prayed that the order of the Tribunal be set aside as also Exhibits P11 and P23 and the Municipality directed to consider the application for building permit.
14. The learned Counsel for the Municipality, however, contends that a fraud has been committed in showing certain properties under Survey No.578/2A. It is pointed out that the partition deed itself admits that the total extent, originally in the ownership of the tharawad was not available at the time of partition. The Municipality claims title to various deeds executed by the members of the first branch under the partition deed. It is the properties which were allotted to the first branch and purchased by the Municipality, that was sought to be conveyed to the petitioners; by some of the parties to the partition; in the collusive suit filed by the said parties. It is pointed out that the suit was filed on 13.12.2011 and a compromise was filed on 07.03.2012, within about four months, and the preliminary decree passed on 04.04.2012. This throws a valid suspicion on the conduct of the parties. Even if the preliminary decree, based on a WP(C) No.33446 of 2014 - 13 - compromise, is executable, this does not necessarily indicate the possession of the properties by the vendors or by the subsequent purchasers, the petitioners.
15. The claim of the Municipality is that there is no such property existing and one of the sharers in the second branch of the partition deed filed a suit and saw to it that a compromise was entered; so as to procure the decree on the strength of which, transfer of the properties by title deeds at Exhibits P1 and P2 is attempted to be effected. Nothing is stated about who the defendants in the suit, and what exactly is their right in the properties. It is also not clear as to whether the plaintiff and defendants in the suit were in possession of such properties at the time of the transfer effected by the title deeds. It is pointed out that by P.V.2666 the mutation was effected from the name of one Raman Vasudevan, who was the `Karanavar' of the tharawad and this itself indicates that even after the 1957 deed, the sharers who are the present vendors at Exhibits P1 and P2 never effected a mutation in their favour. This specifically goes against the claim of possession, is the compelling contention advanced. The decision at Exhibit P22, to purchse lands covered by P.V.2666, was one bona fide taken. Only later, the Municipality realised that the WP(C) No.33446 of 2014 - 14 - attempt was to fraudulently reduce the property of the Municipality into the possession of the petitioners.
16. The learned Counsel for the respondent-Municipality also contends that Exhibit P15 is not a conclusive order. Exhibit R1(d) is a proceeding initiated under Section 13A of the Survey and Boundaries Act. This is also an appealable order. In fact there are two proceedings pending, one under the Transfer of Registry Rules and the other under the Survey and Boundaries Act. Both the proceedings are pending and the only caveat in Exhibit P15; is that the tile dispute has to be resolved in a proper suit. This in fact is the specific direction in Exhibit P7 judgment also. The proceedings taken under the Survey and Boundaries Act does not confer title on the petitioners. Even if certain properties are found in Survey No.578/2A, if the possession is with the Municipality, then the petitioners would have to necessarily file a suit for recovery of possession, which is again the finding in Exhibit P7 judgment. Specific reference is made to sub-section (vi) of Section 393 of the Kerala Municipality Act, 1994 to contend that the title and possession being with the Municipality, it is a valid ground for rejection of building permit. It is asserted that the Municipality had validly declined the permission to construct a boundary wall on the WP(C) No.33446 of 2014 - 15 - east and south of the petitioners' property, which, in effect, would permit the petitioners to reduce the properties in the ownership and possession of the Municipality, to themselves. This cannot be done merely by a mutation effected or by laying of survey stones. There should be a proper adjudication by a Civil Court, is the specific contention.
17. To challenge the order of the Tribunal and the specific finding; that without a final decree there cannot be any possession found on the petitioners, the learned Counsel places reliance on Bimal Kumar v. Shakuntala Debi [(2012) 3 SCC 548]. The Hon'ble Supreme Court held that when there is a compromise petition filed in a partition suit, which admits the respective shares in the property, and has already allotted it to the the parties, who are in separate and exclusive possession thereof; there being no further course of action intended by the sharers, the decree drawn up incorporating the compromise is a final decree and executable. In the present case, though a preliminary decree has been passed, the compromise settles the issue and there cannot be any warrant for filing a final decree application. It is also submitted that the vendors of the petitioner do not challenge the conveyance and, hence, the petitioners can protect WP(C) No.33446 of 2014 - 16 - the property which has been assigned to them, which would take in any right that was available with the vendors.
18. Kochara Panicker v. Sekhara Panicker [1988 (2) KLT 469, Valsala v. Sundaram Nadar [1993 (2) KLT 67] and India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla [(2004) 3 SCC 178] are relied upon to assert that the application filed before the Municipality is only to build a compound wall to protect the property assigned to them as per Exhibits P1 and P2; which they could validly do by virtue of the conveyances. The dictum in the above cited decisions, according to this Court, does not at all advance the case of the petitioners.
19. The attempt of the petitioners to give the conveyance a stamp of approval based on the preliminary decree entered into on the basis of the compromise, is misplaced. The decree, if at all, only binds the parties to the suit and none of them can challenge the right of the petitioners flowing from the conveyance executed on the basis of the decree. This Court is of the opinion that the decree passed or the nature of it is not of any consequence. The finding of the Tribunal that since a final decree has not been passed and the properties have not been taken delivery of, there cannot be any interference caused to the WP(C) No.33446 of 2014 - 17 - action of the Municipality, impugned in the appeal; cannot be sustained. However, it is very pertinent that the possession of the property is in dispute and even Bimal Kumar found that a preliminary decree on the basis of a compromise petition could be treated as a final decree, if there existed; inter alia, the separate and exclusive possession of the property. This is what is lacking in the present case.
20. The contention of the petitioners is that the properties conveyed as per Exhibits P1 and P2 by the vendors who were the second branch as per Exhibit P17 partition deed was the property comprised in Survey No.578/2A and the first branch from whom the Municipality traces the title has no property in the said survey number. In this context, it is to be specifically noticed that the vendors of the petitioners never obtained mutation in their name. It cannot also be said that Exhibit P15 is in conclusion of the proceedings under the Transfer of Registry Rules. It is trite that a mutation effected or the land tax payment cannot by itself substantiate the title or the possession of a property.
21. There are two proceedings initiated, one under the Transfer of Registry Rules for cancellation of the mutation effected by TR.143/12 and TR.144/12, which effected mutation of the properties WP(C) No.33446 of 2014 - 18 - covered by Exhibits P1 and P2 from P.V 2666 to P.V.24367 and 24366. The proceedings for survey was directed as per Exhibit P8. The same was concluded and the properties are said to be demarcated on the supervision of the District Survey Superintendent as per the directions of this Court in W.P.(C) No.19570 of 2013 [Exhibit P8 judgment]. This is an appealable order. The property stood mutated in the name of the petitioners, which was sought to be challenged by the Municipality under the Transfer of Registry Rules. The records indicate that there was a communication from the State Government, wherein the Land Revenue Commissioner directed necessary action to be initiated to cancel the mutation. This was challenged in a writ petition and by judgment in W.P.(C) No.17321 of 2014 the same was set aside. Liberty was left to the Tahsildar, Ambalapuzha Taluk to proceed in accordance with law. Based on the liberty so reserved, the Tahsildar had issued notice, No.N6-24619/12 dated 31.12.2016, which was challenged by the petitioners in W.P.(C) No.2115 of 2017.
22. In the said writ petition also, a contention was taken that Exhibits P14 and P15 (Exhibits P15 and P16 in that writ petition) are final. This Court in Exhibit R1(j) judgment found that Exhibit P14 WP(C) No.33446 of 2014 - 19 - was only a communication and Exhibit P15 merely expressed an opinion that only a Civil Court could resolve the dispute. The apprehension of the petitioners that the notice so issued was also at the instigation of the Municipality based on the earlier direction given by the Government was found to be misplaced. The 4th respondent was found to be a statutory authority exercising the function of a quasi-judicial authority who had to take an independent and impartial decision after making due enquiries. The position has not changed even now.
23. The proceedings before the Tahsildar has not been finalised for reason of an interim order,in an appeal from Ext.R1 (j) judgment; produced as Exhibit R1(l). The Tahsildar was allowed to proceed; but, however, the final decision was directed to be not enforced. In the said circumstance, even now the question is alive and it cannot be said that the petitioners are in possession of the lands over which the Municipality also raises a claim nor that it is covered by the mutation effected in favour of the petitioners.
24. The property though demarcated, is still in dispute and in such circumstance, it may not be proper for this Court to direct a consideration of the application for building permit. Exhibit P23 WP(C) No.33446 of 2014 - 20 - specifically found that the dispute has not been resolved and, hence, there can be no consideration of the application for building permit to construct a compound wall. The construction of a compound wall if permitted would reduce the possession of the property to the petitioners and this is what is attempted by the petitioners. Even in Exhibit P7 judgment; which directed survey of the properties, it was directed that if any property is found to be in the possession of the Municipality; the petitioners could approach the appropriate forum for recovery of possession. The attempt of the petitioners is to obtain the same indirectly by seeking construction of a compound wall.
25. The partition effected by Exhibit P17 is of the year 1957 and both the Municipality and the petitioners claim to have purchased from persons who claim under the partition deed. It is an admitted fact that despite the partition in the year 1956, no mutation was effected of the properties and it remained in the name of the Karanavar of the tharawad. The conveyance to the petitioners in 2012 was on the basis of a decree obtained in a partition suit which was also on the strength of a compromise. The respondent's contention that the suit was a collusive one, cannot be upheld only on the ground that it was concluded with undue haste and in very minimal time. But WP(C) No.33446 of 2014 - 21 - the fact remains that there is a cloud of suspicion, especially since the right of the respective parties to the suit is not clear and there is nothing to indicate the exclusive possession, of the respective shares, having been taken by the sharers to Exhibit P17 partition deed.
26. The Municipality contends that the property as conveyed to the petitioners do not exist and the petitioners claim that in the survey, the properties in Sy. No.578/2A have been demarcated. The conveyance effected by Exhibits P1 and P2 are properties, confined exclusively within Survey No.578/2A, and that the Municipality has no claim over any property in Survey No.578/2A. In this context, it is to be observed that the proceedings under the Survey and Boundaries Act has also not acquired finality.
27. The issue essentially is of identification of the property and this Court cannot embark upon such an exercise in this proceedings. As rightly found in Exhibit P7, the remedy lies in the Civil Court. The proceedings on survey and that initiated under the Transfer of Registry Rules are not final and can be challenged by either of the parties before a Civil Court. This Court need not at this stage contemplate as to who has to initiate the proceedings before the Civil Court. The Municipality, as of now, is well within its powers to WP(C) No.33446 of 2014 - 22 - have declined the building permit under Section 393(1)(iv) of the Kerala Municipality Act. Though not for the reasoning as entered into by the Tribunal, this Court is also not inclined to issue any directions in the matter as sought for in the writ petition. There is also no warrant for interference with the orders passed by the Municipality. Suffice it to observe that the question would be left for consideration in appropriate proceedings which either of the parties could take up.
The writ petition would stand dismissed, with the above reservation. Parties are left to suffer their respective costs.
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K.Vinod Chandran Judge.
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