Madras High Court
R.Mohan Ranganathan vs The District Revenue Officer on 21 December, 2009
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 21.12.2009 Coram THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition Nos.21450 of 2008 and 15851 of 2009 and M.P.No.1 of 2008 in W.P.No.21450 of 2008, and M.P.Nos.1 and 2 of 2009 in W.P.No.15851 of 2009, W.P.No.21450 of 2008:- R.Mohan Ranganathan. ... Petitioner vs. 1.The District Revenue Officer, Kancheepuram District, Kancheepuram. 2.The Revenue Divisional Officer, Chengalpattu Division, Chengalpattu. 3.The Tahsildar, Chengalpattu. 4.S.A.Bheemaraja. ... Respondents W.P.No.15851 of 2009:- S.A.Bhimaraja. ... Petitioner vs. 1.The District Revenue Officer, Kancheepuram. 2.The Tahsildar, Chengalpattu Taluk, Kancheepuram District. 3.R.Mohan Ranganathan, 4.C.A.Kabeer. ... Respondents Writ Petition No.21450 of 2008 is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent in Na.Ka.No.4/30849/2007 dated 16.5.2008, confirming the order of the second respondent made in Na.Ka.No.179/2007 dated 23.6.2007 and direct the second respondent to issue patta in favour of the petitioner by effecting changes in the UDR for the property situated at S.No.223/2, 1.38 acres, Padur Village, Chengalpattu Taluk, Kancheepuram District. Writ Petition No.15851 of 2009 is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the first respondent to consider the review petition dated 30.3.2009 filed against the orders in Na.Ka.No.4/30849/2007 dated 16.5.2008 after giving opportunity to all the parties. For petitioner in WP No.21450 of 2008 and respondents 3 and 4 in WP No.15851 of 2009 : Mr.N.Anand Venkatesh For respondents 1 to 3 in WP No.21450 of 2008 and respondents 1 and 2 in WP No.15851 of 2009 : Mr.V.Manoharan, Government Advocate. For 4th respondent in WP No.21450 of 2008 and Petitioner in WP No.15851 of 2009 : Mr.S.Kamadevan. ----- COMMON ORDER
Writ Petition No.21450 of 2008 is filed to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent in Na.Ka.No.4/30849/2007 dated 16.5.2008, confirming the order of the second respondent made in Na.Ka.No.179/2007 dated 23.6.2007 and direct the second respondent to issue patta in favour of the petitioner by effecting changes in the UDR for the property situated at S.No.223/2, 1.38 acres, Padur Village, Chengalpattu Taluk, Kancheepuram District.
2. Writ Petition No.15851 of 2009 is filed to issue a Writ of Mandamus, directing the first respondent to consider the review petition dated 30.3.2009 filed against the orders in Na.Ka.No.4/30849/2007 dated 16.5.2008 after giving opportunity to all the parties.
3. Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 and Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 claim certain rights over the property in Survey No.223/2, Padur Village, Chengalpattu Taluk in Patta No.65 which originally stood in the name of one Mr.Gulam Rasool Sahib.
4. Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 challenges the proceedings of the Revenue Divisional Officer, Kancheepuram, the first respondent in both the cases whereby the claim of the petitioner Mr.Mohan Ranganathan for grant of patta was rejected and the rival claim made by Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 was negatived and the patta was restored in the name of one Gulam Rasool Sahib, a dead person, who died in the year 1948. Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 is aggrieved by the proceedings, primarily on the ground that the rejection of the application for granting patta in his name and restoring the patta in the name of a dead person Gulam Rasool Sahib is contrary to law and the Standing Orders of the Board of Revenue.
5. Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 on the other hand states that he is entitled to patta and his claim was rejected stating that he has no valid legal right.
6. It is pertinent to point out that both the parties claim rights as purchasers of property. The transfer of the property as claimed is as hereunder.
7. The case of Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 is as follows:-
(i) One C.A.Kabeer, the fourth respondent in W.P.No.15851 of 2009, son of late C.A.Hafees and two others filed a suit O.S.No.8667 of 1985 on the file of the Sixth Assistant Judge, City Civil Court, Chennai against 9 individuals and officials, viz., the Sub Registrar, Thiruporur, as the 10th defendant, and the Tahsildar, Chengalpattu, as the 11th defendant. One Mrs.Mehrunnisa was arrayed as the second defendant. The suit O.S.No.8667 of 1985 was decreed ex parte and a declaratory decree was passed on 11.11.1989, and it reads as follows:-
"thjpfs; vy;yh chpikfisa[k;. cilik chpikfisa[k; j';fs; Kd;ndhh;fsplkpUe;J mile;jhh;fs; vd;W tpsk;g[if bra;ag;gLfpwJ/"
The property which is the subject matter of the present writ petition is found in "B" schedule of the suit decree in O.S.No.8667 of 1985 bearing Survey No.223/2 in an extent of 1.38 acres.
(ii) Prior to passing of declaratory decree in O.S.No.8667 of 1985, certain events happened and the same are as follows. On 6.3.1984 Mrs.Mehrunnissa, the defendant No.2 in O.S.No.8667 of 1985 along with eight others filed a partition suit O.S.No.2241 of 1984 separately against Malik Basha and 115 others before the City Civil Court, Chennai claiming 92/1564 shares in the suit property which includes the Survey No.223/2, Padur Village, Chengalpattu Taluk contained in Patta No.65. After some period of time, on 17.6.1985, the suit O.S.No.2241 of 1984 was dismissed as withdrawn with liberty to file a fresh suit on the same cause of action. The said Mrs.Mehrunnissa, however, did not choose to file a fresh suit, but proceeded to execute a sale deed dated 19.6.1985 bearing document No.1447/85 in favour of one Mr.Manickam and two others, without there being a decree for partition. In the suit O.S.No.2241 of 1984, Mrs.Mehrunnissa claims to be wife of Abdul Hamid alias Hayath Basha and states that the property devolved on the plaintiffs as grandson and daughter of Mohammed Sadiq, son of C.Gulam Hussain. As per the plaint, the cause of action for the suit arose when Gulam Hussain and Mohammed Sadiq, the grandfather and the father of the plaintiffs died. There is no reference to late Gulam Rasool Sahib, the patta holder, as per order of the Revenue Authority.
(iii) While the properties were transferred by Mrs.Mehrunnissa to Manickam and two others, in June, 1985 the said C.A.Kabeer filed suit O.S.No.8667 of 1985 as stated above on 5.11.1985 and obtained the declaratory decree on 11.11.1989. Mr.C.A.Kabeer filed another suit O.S.No.1076 of 1999 on 26.11.1998 against the Sub Registrar, Tiruporur and the Tahsildar Chengalpattu. The second suit was filed to declare that the decree passed on 11.11.1989 in the declaratory suit O.S.No.8667 of 1985 as binding on the official respondents and that they should not make any changes in revenue records contrary to the declaratory decree passed in O.S.No.8667 of 1985. It is not in dispute that the suit O.S.No.1076 of 1999 filed by Mr.C.A.Kabeer was dismissed on 28.7.2005 and the appeal in A.S.No.555 of 2005 filed on 19.8.2005 was dismissed on 30.8.2006. Second Appeal No.21 of 2008 was also dismissed on 17.9.2009.
(iv) Thereafter Mr.C.A.Kabeer, the respondent No.4 in W.P.No.15851 of 2009 applied for patta, but was not granted at that point of time. The said C.A.Kabeer thereafter entered into an agreement with the petitioner Mohan Ranganathan on 29.3.2006. On 18.4.2006, Mr.C.A.Kabeer executed two sale deeds in respect of the property under lis in document Nos.3526 of 2006 and 3545 of 2006 in favour of the petitioner Mr.Mohan Ranganathan. The petitioner Mohan Ranganathan filed an application to the Tahsildar, Chengalpattu on 29.4.2006 for issuance of patta based on the sale documents and other records.
(v) Further, on 21.12.1988, Mr.Manickam and two others who purchased the subject property from Mrs.Mehrunnissa on 19.6.1985 executed a sale deed in favour of one Mrs.P.Kasthuri Ammal residing at Door No.8, Agatheeswarar Koil Street, Villivakkam, Chennai-49. Based on the sale deed dated 21.12.1988, patta No.337 was issued in favour of Mrs.P.Kasthuri Ammal by the Tahsildar, Chengalpattu. On 13.3.2006, even prior to the sale of the property by Mr.C.A.Kabeer to the petitioner Mr.Mohan Ranganathan, the said Mrs.P.Kasthuri Ammal handed over the possession of the property to one Mr.R.Gokulakannan, brother of the petitioner Mohan Ranganathan. On 19.3.2006 a complaint was lodged by Mrs.P.Kasthuri Ammal to the V4 Rajamangalam Police Station stating that she lost the original title documents relating to the property situated at S.No.223/2, Padur village. On the very same day, Mrs.P.Kasthuri Ammal entered into an agreement with Mr.P.Gokulakkannan, brother of the petitioner Mr.Mohan Ranganathan in respect of the above said property comprised in Survey No.223/2, Padur village to an extent of 1.38 acres. On 18.4.2006, the sale agreement entered into between R.Gokulakkannan and Mrs.P.Kasthuri Ammal was cancelled. On 18.4.2006, a release deed was executed by Mrs.P.Kasthuri Ammal in favour of the petitioner Mr.Mohan Ranganathan stating that she has received certain amount and that she is unable to execute the sale deed in view of the declaratory decree passed in O.S.No.8667 of 1985 on 11.11.1989. From the records and pleadings, it is seen that Mrs.P.Kasthuri Ammal after executing the release deed has approached the revenue authorities raising objections for issuance of patta in favour of the petitioner Mohan Ranganathan. On 20.10.2006 Mrs.P.Kasthuriammal, claiming to be residing at No.4, Jawaharlal Nehru Street, VGN Shanthi Nagar, Ambattur, Chennai-53 executed a sale deed in respect of the above said property and registered it as document bearing No.9228/06 before the Sub Registrar Office, Tiruporur in favour of Mr.S.A.Bhimaraja, the fourth respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009. This gave the Bhimaraja the right to claim patta and to enter into the foray claiming right over the property.
(vi) Based on the request made by Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008, for issuance of patta, the Tahsildar, the third respondent in W.P.No.21450 of 2008 passed an order in Na.Ka.No.3723/06/A2 dated 29.12.2006 recommending the deletion of the name of Mrs.P.Kasthuri Ammal from the revenue records and for transferring the patta in the name of Mr.Mohan Ranganathan. He forwarded the file to the Revenue Divisional Officer, Chengalpattu with his comments and recommendation. One of the reasons given by the Tahsildar, recommending the issuance of patta to Mr.Mohan Ranganathan is the declaratory decree which has become final and that the subsequent suit O.S.No.1076 of 1999 filed by Mr.C.A.Kabeer even if dismissed does not negate the right that flows from the decree passed in O.S.No.8667 of 1985. This view is also based on the opinion of the Government Pleader. The Revenue Divisional Officer (R.D.O., in short), thereafter took up the adjudication of the claim for issuance of patta considering the plea of rival parties and by his proceedings Na.Ka.No.179/07 recommended the case of the petitioner Mr.Mohan Ranganathan for issuance of patta and to delete the name of Mrs.P.Kasthuri Ammal from the revenue records. The said R.D.O. proceedings was forwarded to the District Revenue Officer (D.R.O., in short). On 30.3.2007, the District Revenue Officer, the first respondent in both writ petitions by his proceedings No.O.Mu.No.5947/2007/N4 dated 30.3.2007 while concurring with the views of the Tahsildar and the Revenue Divisional Officer, remanded the matter to the Revenue Divisional Officer for effecting the change of patta in favour of the petitioner Mr.Mohan Ranganathan. In other words, the District Revenue Officer returned the file back to the Revenue Divisional Officer for grant of patta as recommended. The file on return to the Revenue Divisional Officer was kept idle for a quite sometime. Petitioner Mr.Mohan Ranganathan filed W.P.No.19784 of 2007 for early disposal and by order dated 9.6.2007 this Court directed the Revenue Divisional Officer, the second respondent in W.P.No.21450 of 2008, to dispose of the file Na.Ka.No.179/07 on merits after hearing the petitioner Mr.Mohan Ranganathan.
(vii) The claim of Mr.S.A.Bhimaraja, the 4th respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 as well as the claim of Mrs.P.Kasthuri Ammal, the vendor of Mr.S.A.Bhimaraja were considered by the Revenue Divisional Officer (RDO) and by proceedings dated 23.6.2007 in Na.Ka.No.179/2007 passed an order rejecting the claim of both the parties and directed them that Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 and Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 to go before the Civil Court for establishing their claim.
(viii) Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 filed appeal on 22.10.2007 to the District Revenue Officer in appeal No.52097/07/N4. It appears that Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 also filed an appeal to the District Revenue Officer on 9.7.2007. This Court by order dated 25.1.2008 in W.P.No.36573 of 2007 directed the District Revenue Officer to dispose of the appeal No.52097/07/N4 in a time bound manner.
(ix) Thereafter, District Revenue Officer, the first respondent in both the writ petitions, decided the appeals and rejected both the appeals stating that the principal vendor Mrs.Mehrunnissa had no title to the property and Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 is not entitled to patta in view of the dismissal of suit O.S.No.1076 of 1999, which was confirmed in appeal. The two claims for issuance of patta was rejected and the District Revenue Officer restored the patta in the name of the dead person Gulam Rasool Sahib. The said order of the District Revenue Officer, the first respondent in both the writ petitions, in proceeding Na.Ka.No.4/30849/2007 dated 16.5.2008, is under challenge in W.P.No.21450 of 2008.
8. As far as Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 and the fourth respondent in W.P.No.21450 of 2008 is concerned, he claims that Mrs.P.Kasthuri Ammal sold the property to him on 20.10.2006. On the basis of the said sale deed, patta was issued in favour of Mr.S.A.Bhimaraja on 7.5.2007. Thereafter, some criminal proceedings were initiated by one or other parties in respect of the property and by proceedings dated 15.5.2007, the Tahsildar cancelled the patta issued in favour of Mr.S.A.Bhimaraja. Challenging the same, Mr.S.A.Bhimaraja filed an application to the Revenue Divisional Officer which was rejected in the common order dated 23.6.2007 in Na.Ka.No.179/07 referred to earlier, directing the parties to go to the Civil Court. Thereafter, an appeal was filed to the District Revenue Officer. The District Revenue Officer in his order dated 16.5.2008 in Na.Ka.No.4/30849/2007 rejected the appeal filed by Mr.S.A.Bhimaraja for issuance of patta and restored the patta in the name of Gulam Rasool Sahib, the dead person. Thereafter, Mr.S.A.Bhimaraja filed Review Petition dated 30.3.2009 and the same is stated to be pending. Hence, Mr.S.A.Bhimaraja, filed W.P.No.15851 of 2009 for a mandamus to direct the first respondent to consider the review petition dated 30.3.2009 filed against the order in Na.Ka.No.4/30849/2007 dated 16.5.2008.
9. It is stated that both the parties filed Second Revision Petition before the Special Commissioner and Commissioner of Land Administration, Chennai-5 and the same was returned stating that as per the present Government Orders, the second Revision will not lie. Hence, Mr.Bhimaraja, the petitioner in W.P.No.15851 of 2009 filed application before the first respondent to review his order. Thereafter, Bhimaraja has filed two petitions M.P.Nos.1 of 2009 and 2 of 2009, one for permitting him to raise additional grounds and other for amendment of the prayer in the Writ Petition to quash the order of the first respondent dated 16.5.2008. In the above stated factual matrix, the plea of both parties for issuance of patta and the order of rejection has to be considered.
10. Heard Thiru Anand Venkatesh, learned counsel for the petitioner in W.P.No.21450 of 2008 and the respondents 3 and 4 in W.P.No.15851 of 2009; Thiru S.Kamadevan, learned counsel for the petitioner in W.P.No.15851 of 2009 and the fourth respondent in W.P.No.21450 of 2008 and Mr.V.Manoharan, learned Government Advocate for respondents 1 to 3 in W.P.No.21450 of 2008 and the respondents 1 and 2 in W.P.No.15851 of 2009.
11. On merits, the learned counsel for Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 contended as follows:-
(i) The rejection of the petitioner's claim for issuance of patta by the Revenue Divisional Officer, the second respondent, directing the parties, the petitioner and the fourth respondent to approach the Civil Court for adjudication of the claim, is clear abdication of his function as a competent authority under the Standing Orders of the Board of Revenue. The authority is bound to decide the issue relating to grant of patta on the basis of available records and cannot relegate the parties once again to civil Court. The civil Court's order already passed is binding on all concerned.
(ii) The authority erred in rejecting the claim for patta in favour of the petitioner Mr.Mohan Ranganathan, who has the benefit of a civil court decree in suit O.S.No.8667 of 2005. There cannot be further adjudication of the claim since the said declaratory decree has not been set aside in a manner known to law and is still in force. The revenue authorities are parties to the suit and is binding on them.
(iii) The Sub Registrar, Tiruporur and the Tahsildar, Chengalpattu filed I.A.No.248 of 2006 on 6.11.2006 in O.S.No.8667 of 2005 before the Sixth Assistant City Civil Court, Chennai to set aside the ex parte decree. They are the 10th and 11th defendants in O.S.No.8667 of 1985. The said I.A.No.248 of 2006 was dismissed on 6.11.2006 and no further proceedings were taken. Therefore, the Revenue Authorities are bound by the declaratory Decree in O.S.No.8667 of 1985 dated 11.11.1989 and cannot take a different plea now and call upon the parties to go to civil Court once again.
(iv) The Tahsildar, Chengalpattu at the first instance in proceeding Na.Ka.No.3723/06/A2 dated 29.12.2006 has considered the objections filed by Mrs.P.Kasthuri Ammal and based on the various documents executed by Mrs.P.Kasthuri Ammal and also taking note of the opinion of the Government Pleader wherein it has been clarified that the suit O.S.No.1076 of 1999 has no bearing insofar as the judgment and decree in O.S.No.8667 of 1985, recommended that the patta issued in the name of Mrs.P.Kasthuri Ammal should be cancelled and the petitioner Mr.Mohan Ranganathan is entitled to grant of patta. In the same manner, the Revenue Divisional Officer in his proceedings Na.Ka.No.179/07 dated 29.1.2007 after detailed enquiry concurred with the recommendation of the Tahsildar for grant of patta to the petitioner and forwarded the same to the District Revenue Officer. In the proceedings O.Mu.No.5947/07/N4 dated 30.3.2007, the District Revenue Officer on considering the report of the Tahsildar and the Revenue Divisional Officer held as follows:-
@vdnt Mtz';fs; mog;gilapYk;. ,e;neh;t[ bjhlh;ghf ,Ujug;gpYk; bgwg;gl;l ePjpkd;wj; jPh;g;g[fspd; mog;gilapYk; tUtha; epiy Miz vz; 31y; cs;s TWfspd; mog;gilapy; ,e;neh;tpy; chpa eltof;if vLj;jpLkhW nfl;Lf; bfhs;fpnwd;/ ,dptUk; fhy';fspy; ,k;khjphp ,d';fspy; epy clikg; gjpt[ nkk;ghL jpl;l fhyj;jpy; Vw;gl;l jtwpid rhp bra;jplf;nfhhp tUk; kDf;fspd; nghpy; chpa tprhuiz nkw;bfhz;L jFjpapd; mog;gilapy; chpa eltof;if vLj;jpLk; bghUl;L rkh;g;gpj;jpl nfl;Lf; bfhs;fpnwd;/@ The specific direction in the proceedings of the District Revenue Officer set out above to the Revenue Divisional Officer is that he should decide the claim for patta in accordance with the BSO 31 of the Standing Orders of the Board of Revenue based on the records produced by the rival parties and the decision of the Courts. On remand, the Revenue Divisional Officer in his order dated 23.6.2007 in Na.Ka.No.179/2007, after considering the objections of the rival parties, came to hold that the claim of Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 and Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009, for patta in respect of same property, is based on purchase from different source, namely, representatives of the patta holder. In view of the above, they are directed to approach the civil Court for appropriate remedy. The above said finding is contrary to the direction to the order of the District Revenue Officer.
(v) The order of the Revenue Divisional Officer directing the parties to go before the civil Court is based on a misreading of the declaratory decree passed in favour of the vendor of petitioner Mr.Mohan Ranganathan which is in force. In any event, the Tahsildar, the 11th defendant in O.S.No.8667 of 1985 has filed an application to set aside the ex parte declaratory decree dated 11.11.1989 which was dismissed and against that order no appeal has been filed by the Revenue Authorities and therefore, the Civil Court decree in O.S.No.8667 of 1985 is binding on the authorities and in terms of BSO 31 of the Standing Orders of the Board of Revenue the second respondent herein is bound to accept the declaratory decree and grant the patta.
(vi) The District Revenue Officer, the first respondent in both the writ petitions, while deciding the matter in appeal misconstrued the judgment passed in O.S.No.1076 of 1999, confirmed in A.S.No.555 of 2005. It has nothing to do with claim for title or right over property. It has no relevance insofar as patta proceedings.
(vii) The said Authority while exercising the power under BSO 31 of the Standing Orders of the Board of Revenue restored the patta in favour of a dead person Gulam Rasool Sahib without taking into consideration the fact that the declaratory decree in O.S.No.8667 of 1985 is binding on the said Authority. The dismissal of the suit O.S.No.1076 of 1999 and the appeal is of no consequence as it has nothing to do with the title to the property in question. The restoration of patta in the name of the dead person Gulam Rasool Sahib is contrary to the BSO 31 of the Standing Orders of the Board of Revenue and the Authority ought not to have restored the patta in the name of a dead person in the light of the decree passed by a competent Civil Court which is binding on all persons concerned including respondents. Learned counsel for Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 relied upon the decision of the Apex Court in Saroja vs. - Chinnusamy (dead) by LRs. and another reported in (2007)8 Supreme Court Cases 329 where the Apex Court held in paras 13, 15 and 16 as follows:-
"13. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the Court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition (iv) was not satisfied and accordingly it cannot be held that the principle of res judicata would not apply in the present case."
"15. In this connection, reference can be made to a decision of the Madras High Court in Arukkani Ammal v. Guruswamy [(1987)100 LW 707)] which was also relied on by the first appellate Court. The Madras High Court in that decision observed as follows: (LW p.708, para 1) "It is also difficult to appreciate the view taken by the District Munsif that ex parte decree cannot be considered to be 'full decree on merits'. A decree which is passed ex parte is as good and effective as a decree passed after contest. Before the ex parte decree is passed, the Court has to hold that the averments in the plaint and the claim in the suit have been proved. It is, therefore, difficult to endorse the observation made by Principal District Munsif that such a decree cannot be considered to be a decree passed on merits. It is undoubtedly a decree which is passed without contents; but it is only after the merits of the claim of the plaintiff have been proved to the satisfaction of the trial Court, that an occasion to pass an ex parte decree can arise."
"16. We are in full agreement with this view of the Madras High Court holding that a decree which is passed ex parte is as good and effective as a decree passed after contest. A similar view has also been expressed by a Division Bench of the Allahabad High Court in Bramhanand Rai v. Dy. Director of Consolidation (AIR 1987 ALL. 100). However, the learned counsel for the appellant relying on a decision of the Madras High Court, namely, A.S.Mani v. Udipi Hari Niwas invited us to hold that the principle of res judicata would not apply as the former suit was decided ex parte. This decision, in our view, is distinguishable on facts. In that decision, the observation that the ex parte decree shall not operate as res judicata was made on the basis that the earlier petition which was filed for eviction against the tenants was dismissed only on technical grounds, and after keeping this fact in mind only, the Madras High Court held that the ex parte decree would not operate as res judicata inasmuch as the petition was not heard and finally decided as contemplated in Section 11 CPC. Therefore, in our view, since Condition (iv), as noted hereinbefore, was satisfied, we hold that the principles of res judicata would be applicable in the present case as held by the first appellate Court and also affirmed by the High Court."
The vendor's title based on the ex parte declaratory decree is binding on the authorities and therefore, petitioner prayed for setting aside the order of the first respondent confirming the order of the second respondent stating that both the authorities have acted contrary to the law and have rejected the claim of the petitioner in W.P.No.21450 of 2008 merely on technical plea and without taking into consideration the binding nature of the Civil Court Decree on the authorities.
12. Thiru S.Kamadevan, learned counsel appearing for respondent No.4 in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 submitted as follows:-
(i) The petitioner Mr.Mohan Ranganathan claims through Mr.C.A.Kabeer who has no right, title or interest over the property and the suit was originally filed for bare injunction and subsequently by amendment he has obtained a decree for declaration. The decree passed in O.S.No.8667 of 1985 is a nullity as it is beyond the territorial jurisdiction of the Court which passed the decree.
(ii) The ex parte decree dated 11.11.1989 will not bind the transferee of the property (i.e.) Manickam and others, who are the vendors of the property in favour of Mrs.P.Kasthuri Ammal who in turn sold the same to Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009. In any event, Mrs.Mehrunnissa who sold the property to Manickam and others had executed the sale deed prior to the filing of the suit by Mr.C.A.Kabeer and others.
(iii) The said C.A.Kabeer filed Execution Petition No.71 of 1995 for execution of the decree passed in O.S.No.8667 of 1985 and such Execution Petition was dismissed on 19.11.2007 as filed beyond the period of limitation.
(iv) Whether C.A.Kabeer has a valid title to execute the sale deed in favour of the petitioner Mr.Mohan Ranganathan based on the decree dated 11.11.1989 in O.S.No.8667 of 1985 when two other plaintiffs died after passing of the decree.
(v) In so far as Mr.S.A.Bhimaraja, is concerned, the claim for title is based on the sale deed executed by Mrs.P.Kasthuri Ammal, and she had a valid title on the date of sale. On this premise, it is submitted that the vendor of Mohan Ranganathan had no valid title and therefore, the claim for patta was rightly dismissed. The said Bhimaraja has the right to claim patta as his vendor was in possession of the property by a valid sale deed and patta was also issued but cancelled arbitrarily. The counsel for Bhimaraja pleaded that order restoring patta to the name of dead person is bad in any case.
13. Insofar as W.P.No.21450 of 2008 is concerned, the direction of the first respondent District Revenue Officer in his order dated 30.3.2007 is to the effect that the Revenue Divisional Officer has to take into consideration, the records, the proceedings of the Court relied upon by either parties and decide the issue of grant of patta in terms of BSO 31 of Standing Orders of the Board of Revenue. BSO 31 deals with the Rules for the transfer of registry of holdings. BSO 31(2) deals with three classes of transfers and is as follows:-
"2. Three classes of transfers:- All legal transfers of property take place either (a) by the voluntary action of the owners or (b) by virtue of decrees of Court or revenue sale, or (c) accrue by succession, and in dealing with three classes of transfers, the following procedure should be observed in altering the registers."
The Rule (3) to BSO 31 of Standing Orders of the Board of Revenue deals with voluntary transfers of title and Rule (4) to BSO 31 deals with compulsory transfers of title. Rules (3) and (4) of BSO of Standing Orders of the Board of Revenue read as follows:-
"3. Voluntary transfers of title:- (i) In all cases of absolute transfer of title, the registry of a holding may be altered to correspond with the transfer of its ownership on the application of both the parties to the transfer of either of them, provided that the application for change of registry is in every case made in writing and is signed by the party or parties making it. It may be sent by post or presented in person or by duly authorized agent. It is left to the option of the parties to have the application attested by the karnam and the headman of the village in which the land is situated. Such attestation may be taken as evidence of the identity of the party or parties. Where such an application is presented by both the parties and one of them is the registered holder, change of registry as requested may be ordered at once. But where only one of the parties to the transfer makes the application, notice should be served on the other party through a peon or the village staff or by registered post where correct address is known. If the address is not known the registered letter may be directed to the last-known place of residence of the addressee. If personal service is not possible, service should be effected in the other ways prescribed in section 25 of the Tamil Nadu Revenue Recovery Act, 1894. Where the registered holder is not a party to the transaction, notice should also be issued to him whether the application for transfer of registry is presented by both the parties or one of them. Where only one party to the transaction applies and the other either object is silent, the parties should be connected by a complete chain of documents. When the chain is not complete, it should be filled in by other evidence, such as statements of respectable ryots, kist receipts, etc. A fortnight's time should be allowed for filing objections and if any objection is made, an enquiry should be held and unless the objection is found to be valid, transfer of registry should be ordered."
"4. Compulsory transfers of title:- (i) Transfers to decree-holders:- In cases of transfers of title of holdings in the name of decree-holders with reference to a decree of a civil court or of purchasers in auction sales held in execution of civil court decrees, change of registry may be ordered at once on the application of any of the parties to the suit or of the auction-purchasers and on the production of an authenticated copy of the decree or a certificate of sale, as the case may be, and a certificate of delivery of possession in pursuance thereof provided the transfer is from the registered holder. When the transfer is from a person who is not the registered holder, notice should be given to the registered holder in the manner provided in paragraph 3(a) change of registry is ordered. In cases, however, in which a certificate of delivery of possession cannot be produced, as for instance, where on decree past possession is ceded without execution proceedings and the decree is apparently final, the case should be dealt with as provided in paragraph 3(i) in regard to applications for change of registry presented only by one of the parties to the transfer.
(ii) Transfers under declaratory decrees:- In cases where transfer of registry is sought under a declaratory decree on which no execution can be taken out i.e., where the decree merely declares the title to be vested in a particular person, so as to entitle him to registration, the Collector or other authorised officer may, on production of an authenticated copy of such decree, at once order the transfer of registry."
14. Rule (3) to BSO 31 of Standing Orders of the Board of Revenue is relatable to Rule 2(a) of BSO 31 and the claim of the fourth respondent Mr.S.A.Bhimararaja, the petitioner in W.P.No.15851 of 2009 is on the basis that there is a voluntary transfer of title in his favour by Mrs.P.Kasthuri Ammal who claims right by way of transfer of the property by Mrs.Mehrunnissa.
Rule 4(ii) to BSO 31 of Standing Orders of the Board of Revenue relates to transfers under declaratory decrees. Insofar as Mr.Mohan Ranganathan is concerned he claims transfer of patta by way of transfer under a declaratory decree dated 11.11.1989 in O.S.No.8667 of 1985 referred to earlier.
15. As to the scope of enquiry that has to be undertaken by the authority under the Standing Orders of the Board of Revenue for grant of patta is that the authority deciding the issue has to go into the claim of rival parties with regard to their title and interest in the property and take a decision as to how the claims of rival parties can be best assessed for the grant of patta.
16. The original patta stood in the name of Mr.Gulam Rasool Sahib and thereafter at one point of time it was transferred in the name of Mr.Manickam and others and then in the name of Mrs.P.Kasthuri Ammal which was cancelled and the name of Mr.S.A.Bhimaraja was also recorded and was cancelled by the Revenue authorities later. Therefore, the revenue records cannot create or extinguish the title of the person who is lawfully entitled to the same. The reasons or the opinion of the revenue authorities while deciding the patta proceedings will not decide the title to the property in question. It enables the person who has the benefit of patta to pay the land revenue as applicable. The entry of the name in the patta register will not convey any title to one or other party. In other words the title to the property is an independent right and that has to be established by one or other party as per law. In a series of decisions, the Apex Court has time and again emphasised that the mutation of the revenue records does not create a right or title to the property, but only enables the party to claim possession and pay revenue on the same. This view is emphasised in several decisions as hereunder.
17. In Sankalchan Jaychandbhai Patel and others vs. - Vithalbhai Jaychandbhai Patel and others reported in (1996)6 Supreme Court Cases 433, the Apex Court held in para 7 as follows:-
"7. It is settled law that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property and that the right, title and interest as to the property should be established dehors the entries. Entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest therein. Therefore, the view taken by the learned Single Judge, with due respect, is not correct in law. The civil suit is clearly maintainable. The High Court rightly granted injunction restraining the appellants from alienating the land. Even otherwise, Section 52 of the Transfer of Property Act, 1882 lis pendens always stands in the way of the purchaser of the land subject to the result in revision."
18. In Sawarni (Smt) vs. - Inder Kaur (Smt) and others reported in (1996)6 Supreme Court Cases 223, the Apex Court held in para 7 as follows:-
"Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment."
Therefore, the order of the Revenue Divisional Officer dated 23.6.2007 in Na.Ka.No.179/07 directing the petitioner in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 to approach the civil Court in the patta related proceedings cannot be justified. The said authority has to decide the issue independently.
19. Insofar as the order of the first respondent is concerned, the issue before the first respondent was with regard to the claim of Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 for grant of patta based on the declaratory decree dated 11.11.1989 granted in O.S.No.8667 of 1985. As far as the claim of Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 is concerned, the claim will fall under Rule (3) to BSO 31 of Standing Orders of the Board of Revenue. Insofar as the petitioner Mohan Ranganathan is concerned, his claim will fall under Rule 4(ii) to BSO 31 of Standing Orders of the Board of Revenue, (i.e.) transfers under declaratory decrees. The authority has to decide the issue in terms of the BSO and cannot relegate the parties to civil Court. The first respondent on his part should have considered the claim of rival parties and decide who will be entitled to for grant of patta. Without doing so, the first respondent has restored the patta in the name of Gulam Rasool Sahib. This will fall outside the purview of patta proceedings contemplated under BSO 31 of Standing Orders of the Board of Revenue which the first respondent is bound to follow. The first respondent has to either accept the claim of one or other party based on records. The said authority is not justified in restoring the patta in the name of Gulam Rasool Sahib, a dead person, particularly, in view of the fact that rival parties rely on documents to show the transfer of right in their favour. The first respondent who is bound to decide the claim of the rival parties has ignored BSO 31 and restored the patta in the name of Gulam Rasool Sahib and thereby abdicated his function. Therefore, the order of the first respondent and the second respondent in W.P.No.21450 of 2008 rejecting the claim of the petitioner Mr.Mohan Ranganathan to grant of patta cannot be sustained.
20. Insofar as the claim relating to Mr.S.A.Bhimaraja, the petitioner in W.P.No.15851 of 2009 and the fourth respondent in W.P.No.21450 of 2008, it was urged that the petitioner Mr.Mohan Ranganathan does not have a valid decree. It is stated that Mr.Mohan Ranganathan claimed as a owner of the property pursuant to sale executed by Mr.C.A.Kabeer whose claim supported by declaratory decree in O.S.No.8667 of 1985 is a decree in nullity and that the said property was sold by Mrs.Mehrunnissa even before filing of the suit by Mr.C.A.Kabeer and others and therefore, there is no title to consider his claim. Admittedly, there is a decree of the civil Court which has not been set aside in the manner known to law. The petitioner Bhimaraja has to establish his title independently and cannot claim patta stating that Mohan Ranganathan does not have valid title and the decree is bad or invalid. These are issues which cannot be decided by this Court under Article 226 of the Constitution of India, more particularly, when the decree passed by a civil Court is now sought to be challenged. This has been the consistent view taken by the Courts. (See) Kuppuswami Nainar vs. - The District Revenue Officer, Thiruvannamalai and others reported in 1995 MLJ 426. Para 4 which is relevant reads as follows:-
"4. Now the question for consideration is, having regard to the fact that the District Revenue Officer has expressed his opinion on the question of title whether the order under question should be interfered with. It may be pointed out here that in a petition under Art.226 of the Constitution the question of title regarding immovable property cannot properly be gone into, because a mass of evidence may be required for adjudicating the question of title. Even if we are to interfere with the order under appeal, it is the other party, who has to go to a civil Court and establish title. As far as the exercise of jurisdiction under Art.226 of the Constitution is concerned, it does not matter to it whether 'A' party goes to civil Court or 'B' party. Therefore, we are of the view that the question of title has to be decided by the civil Court, without reference to the order under question."
It may be that Mr.S.A.Bhimaraja, the fourth respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 can persuade the authority to hold that the claim of Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 for patta is not based on valid title. The objection that has been raised before this Court can be canvassed before the authority. This Court is not inclined at this point of time to go into the merits of the factual and legal issues raised by the fourth respondent, the petitioner in W.P.No.15851 of 2009 challenging the validity of the declaratory decree in O.S.No.8667 of 1985 dated 11.11.1989 which is still in force and binding on all concerned vide (2007)8 SCC 329 (cited supra).
21. Mr.S.A.Bhimaraja, the fourth respondent claims the patta based on voluntary on transfer which will be covered by Rule (3) to BSO 31 of Standing Orders of the Board of Revenue. However, Rule 4(ii) to BSO 31 enjoins the authority while altering the register to follow certain procedure. In a case of declaratory decree, the Collector or the Authorised Officer on production of authenticated copy of decree is obligated to effect transfer of the entry in the register at once. It has to be pointed out that in a patta transfer proceedings the BSO 31 is binding on the first respondent. It is for the authority to come to a definite conclusion one way or other in accordance with the BSO 31 while deciding the issue with regard to claim for grant of patta. That decision, however, will have to be based on the documents or records relating to transfer of title or decree of Court as the case may be. This position cannot be ignored or avoided.
22. Insofar as the revenue department is concerned, they have challenged the declaratory decree O.S.No.8665 of 1985 dated 11.11.1989 by filing an application to set aside the ex parte decree for whatever reason and such application was rejected by the Court and has become final. This factor has not been considered by the first or second respondent while directing the petitioners in both writ petitions, to go to the civil Court. Having failed before the civil Court, the revenue authorities cannot turn around and call upon the petitioners to approach the civil Court to prove his title. In the same manner, the first respondent has to consider the relevance of the applications filed by the Revenue Authorities before the civil Court and the order of Court dismissing their applications. This become relevant in view of the stand by the revenue department that the other suit filed by Mr.C.A.Kabeer in O.S.No.1076 of 1999 has been dismissed and confirmed in appeals. It is also necessary for the respondent authority to go into the nature of reliefs sought for in the suit O.S.No.8667 of 1985 and the nature of reliefs sought for in the suit O.S.No.1076 of 1999. The claim for patta by Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 is based only on the declaratory decree dated 11.11.1989 in O.S.No.8667 of 1985 in favour of his vendor. As to how the relief sought for in O.S.No.1076 of 1999 will be relevant for deciding the issue relating to grant of patta has not been explained by the authority. In any event, Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 does not claim any right, title or interest or declaratory relief with regard to the properties in O.S.No.1076 of 1999 nor does his vendor. That being the position, the authorities has to state as to how the dismissal of suit O.S.No.1076 of 1999 will have a bearing on the decree in O.S.No.8667 of 1999 when the relief sought for in the two suits are distinct and different.
23. As has already been pointed out in 2007(8) SCC 329 (cited supra), the ex parte decree is good and effective as a decree passed without any protest unless the decree is set aside in the manner known to law. The revenue authorities cannot brushed aside the same relying upon another suit under which no title is claimed in respect of the property in issue. Therefore, reliance or placing emphasis on the dismissal of the suit O.S.No.1076 of 1999 and further appeal may not be appropriate insofar as the patta proceedings is concerned. Such a digression is meaningless and shows non application of mind.
24. The first respondent has to decide the issue of grant of patta or alteration of revenue records in the patta proceedings on the basis of the declaratory decree passed in O.S.No.8667 of 1985 dated 11.11.1989 as it is the source of title to petitioner's vendor. This will be keeping in line with the decision of the Apex Court cited above. It is needless to point out that the Apex Court in the decision of Sawarni case (cited supra) and Sankalchan Jaychandbhai Patel case (cited supra) has held that the mutation of records does not create or extinguish title. It is for the fourth respondent or any other person claiming right to the suit property as against Mr.Mohan Ranganathan, the petitioner in W.P.No.21450 of 2008 to establish his claim or refute petitioner's claim. Insofar as the patta proceedings is concerned, the first respondent as already observed that the original vendor Mrs.Mehrunnissa has no title to the property as she had already withdrawn the partition suit O.S.No.2241 of 1984 and therefore, the right to the property as claimed by Mr.S.A.Bhimaharaja the fourth respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 vanishes. The petitioner in W.P.No.15851 of 2009 seeks review of the order stating that there are subsequent events and documents to show that the claim to the property by Mr.Mohan Ranganathan is invalid. It is open to the 4th respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 to establish before the revenue authority that the right to patta claimed by the petitioner Mr.Mohan Ranganathan or alteration of revenue records in the patta proceedings is not supported by valid documents or that the claim is not valid in law. In other words the fourth respondent Mr.Bhimaraja seeks title to the property by default. It may be pointed out that there are several documents issued by Mrs.Kasthuri Ammal in favour of both Mr.Mohan Ranganathan as well as Mr.S.A.Bhimaraja thereby creating a cloud as to the identity of the property as well as her individual right to transfer the property. This aspect also has to be gone into by the revenue authority while deciding the claim of Mr.S.A.Bhimaraja, the fourth respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009.
25. As has already been observed, the BSO 31 of the Standing Orders of the Board of Revenue is binding on the authorities and the first respondent is bound to strictly adhere to the procedure prescribed under the BSO 31 in the patta related proceedings. In any event, when the BSO 31 provides that a patta transfer proceedings is to be done in a particular manner, particularly, under Rule 4(ii) of BSO 31, the authority has to do so accordingly, if not the authority has to spell out as to how Rule 4(ii) of the BSO 31 will not apply to the facts of the claim. Without doing so, the impugned order restoring the patta in the name of Gulam Rahool Sahib, rejecting the claim of the petitioners in both writ petitions is erroneous and contrary to the BSO. Such an exercise done by the first respondent cannot be sustained. Therefore, the order impugned deserves to be set aside.
26. As far as the claim of Mr.S.A.Bhimaharaja, the petitioner in W.P.No.15851 of 2009 as has been observed by the Division Bench of this Court in 1995 MLJ 426 (supra), the civil Court jurisdiction is not ousted in matters relating to title over immovable property. The proceedings under the BSO is independent of the same. The various points urged by Thiru S.Kamadevan learned counsel appearing for the fourth respondent in W.P.No.21450 of 2008 and the petitioner in W.P.No.15851 of 2009 are with regard to the validity of the declaratory decree dated 11.11.1989 granted in favour of Mr.C.A.Kabeer. These are matters which cannot be decided in a proceedings under Article 226 of the Constitution of India and that has been emphasised by the Division Bench of this Court in the decision cited above and the relevant portion is extracted hereunder:-
"3. No provision is brought to our notice in the Standing Orders of the Board of Revenue taking away the jurisdiction of the civil Court to adjudicate upon the question of title relating to immovable property. Revenue Officers in a patta proceedings may express their views on the question of title, but such expression of opinion or decision is not conclusive and it is only intended to support their decision for granting patta. Ultimately, it is the civil Court which has to adjudicate the question as to whether the person claiming patta is the title-holder of the land. Even if the revenue authorities decide the question of title, that will not in any way affect the jurisdiction of the civil Court, which has to decide the question without reference to the decision of the revenue authorities.
"4. Now the question for consideration is, having regard to the fact that the District Revenue Officer has expressed his opinion on the question of title whether the order under question should be interfered with. It may be pointed out here that in a petition under Art. 226 of the Constitution the question of title regarding immovable property cannot properly be gone into, because a mass of evidence may be required for adjudicating the question of title. Even if we are to interfere with the order under appeal, it is the other party, who has to go to a civil Court and establish title. As far as the exercise of jurisdiction under Art. 226 of the Constitution is concerned, it does not matter to it whether 'A' party goes to civil Court or 'B' party. Therefore, we are of the view that the question of title has to be decided by the civil Court, without reference to the order under question. Hence, we decline to interfere with the order challenged in the writ petition. However, we make it clear that in the event a suit for declaration of title and for appropriate consequential relief is filed, the civil Court shall decide such a suit, without reference to the findings recorded by respondents 1 and 2 in the impugned orders, but only on the basis of the pleadings of the parties and evidence adduced by them before it. We also make it clear that any opinion expressed by the learned single Judge,contrary to what we have stated above, shall also stand modified accordingly. With these observations, the writ appeal is dismissed."
Hence, the plea that Mr.Mohan Ranganathan's vendor has no valid title and the declaratory decree is a nullity cannot be adjudicated by this Court. The said plea is rejected declining to enter upon factual aspects and disputes.
27. In the result, the impugned proceedings of the first respondent in both writ petitions, confirming the order of the Revenue Divisional Officer is set aside and the matter is remitted to the Revenue Divisional Officer, Chengalpattu Division, Chenaglpattu, the second respondent in W.P.No.21450 of 2008 for considering the claim of the petitioner Mohan Ranganathan in terms of the BSO 31 of Standing Orders of the Board of Revenue taking into consideration of the relevant materials that have already been placed on record. The Revenue Divisional Officer shall give the petitioner Mr.Mohan Ranganathan as well the fourth respondent Mr.S.A.Bhimaraja an opportunity of hearing before deciding the matter. The proceeding on remand shall be concluded at the earliest preferably within three months from the date of receipt of a copy of this order. Both the Writ petitions are ordered as above. No costs. The miscellaneous petition filed in W.P.No.21450 of 2008 is closed as no further order is necessary.
28. Since the orders that are challenged have been set aside and the matter is remanded to the authority to rehear the parties, the miscellaneous petitions filed in W.P.No.15851 of 2009 for raising additional grounds and for amending the prayer does not survive at this point of time. Accordingly, the same are dismissed.
ts To
1.The District Revenue Officer, Kancheepuram District, Kancheepuram.
2.The Revenue Divisional Officer, Chengalpattu Division, Chengalpattu.
3.The Tahsildar, Chengalpattu