Jothibai Kannan vs _____________

[Cites 16, Cited by 0]

Madras High Court

Jothibai Kannan vs ______________ on 3 March, 2017

Rev.Aplw.(MD) No.21 of 2017 has been filed by the respondents 7 and 8 in W.P.(MD) No.8606 of 2010 filed by the first respondent in the review application seeking review of the order, dated 03.03.2017.

2. Cont.P.(MD) No.1109 of 2017 has been filed alleging that there is wilful disobedience of the order and direction issued in W.P.(MD) No.8606 of 2010, dated 03.03.2017 and the respondents have to be punished for such disobedience.

3. W.P.(MD) No.14847 of 2017 has been filed by a third party, who is not a party to the writ petition, review application and contempt petition, seeking to quash the proceedings of the District Registrar, dated 13.07.2017 and to forbear the District Registrar from conducting any enquiry against him. ______________ Page 6 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

4. W.P.(MD) No.16256 of 2017 has been filed by the very same petitioner in W.P.(MD) No.14847 of 2017 praying for issuance of a writ of certiorarified mandamus to quash the order dated 09.06.2017, passed by the Assistant Commissioner, Trichy Corporation and to direct the respondents to accept the gift settlement deed made in favour of the respondent – Corporation.

5. The issue involved in these cases pertains to an unapproved housing layout and as to whether a road is in existence as claimed by the writ petitioner Murali Sundaram. The learned Writ Court, by order dated 03.03.2017, allowed the writ petition by issuing a writ of certiorarified mandamus and quashing the notice issued by the respondent - Corporation in respect of the pathway comprised in New T.S.No.43 of Ward 42, Block AG15, Indian Bank Colony, Simco Meter Road, Tiruchirappalli Taluk and District, as being illegal and consequently, directing the official respondents to remove encroachments committed by the respondents 7 and 8, namely, Jothibai Kannan and R.V.Kannan, on the said street. ______________ Page 7 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

6. The said Jothibai Kannan and R.V.Kannan are the applicants in the review application. As mentioned above, Murali Sundaram has filed Cont.P.(MD) No.1109 of 2017 alleging disobedience of the order passed in the writ petition. The other two writ petitions have been filed by one S.M.Gajendran, who claims to be the original owner of the property, which was developed into a housing layout. The relief sought for in one of the writ petitions is to forbear the District Registrar from conducting any enquiry against him with regard to the Notice dated 13.07.2017, by which there was a proposal to cancel the Gift Settlement Deed registered as document No.6642 of 2015 and the relief sought for in the other writ petition is to quash the notice dated 09.06.2017 issued by the respondent – Corporation refusing to accept the Gift Settlement Deed.

7. Since Jothibai Kannan and R.V.Kannan have filed a review application to review the order passed in W.P.(MD) Nos.8606 of 2010, any order passed in the said review application would have direct bearing on the ______________ Page 8 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 result of the contempt petition and the two writ petitions filed by S.M.Gajendran. Therefore, we take up the review application for consideration.

8. The first respondent / writ petitioner – Murali Sundaram contended that he had purchased Plot No.1, comprised in S.F.No.173/1A, measuring 2862 square feet by a registered Sale Deed dated 20.10.2005, registered as document No.4151 of 2005. It is his case that the plot purchased by him is situate immediately on the southern side of the road and the same vests with the respondent – Corporation. After purchase of the said land, he made arrangements for putting up construction and for which purpose, he obtained planning approval dated 19.10.2005, wherein also, the existence of the road is mentioned. Even in the survey proceedings, on the northern side of his property, the Corporation road is mentioned in T.S.No.43. According to the writ petitioner, the road runs east-west and connects Trichy- Sathanur Main Road, which is situated on the further west of the property of the writ petitioner and that the writ petitioner and others have been using the road. On the northern side of the said road, the property of the seventh ______________ Page 9 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 respondent, namely, the review applicant is situated and it is alleged that the seventh respondent gradually encroached the road and that in the sale deed executed in favour of the second respondent, the disputed road is mentioned and therefore, the seventh respondent can have no right over the said property. Therefore, he had sent a representation to the Authorities to remove the encroachment and since the same was not considered, he filed W.P.(MD) No.10672 of 2006 and pursuant to the directions issued by this Court, the respondent – Corporation passed the order dated 17.07.2008 stating that the writ petitioner Murali Sundaram should approach the Civil Court for necessary relief.

9. The review applicants, who were the respondents 7 and 8 in the writ petition, contended that the claim made by the writ petitioner was mala fide and only to harass the review applicants, who are senior citizens and that the claim is based upon fabricated documents as there is no road in existence as claimed by the writ petitioner Murali Sundaram. Further, a team of experts from the Survey Department have verified the boundaries with documents and found no road in the disputed place and the said order passed by the ______________ Page 10 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 Authorities have attained finality and therefore, prayed for dismissal of the writ petition.

10. The respondent – Corporation contended that the layout mentioned by the writ petitioner - Murali Sundaram is an unapproved layout and the roads stated to have been mentioned in the layout have not been vested with the Corporation and therefore, the writ petitioner - Murali Sundaram has to approach the Civil Court to vindicate his claim.

11. The learned Writ Court found that in the Sale Deeds dated 07.12.1981 and 20.10.2005, the road has been mentioned as one of the boundaries to the property described in the Schedule to the document and unless and until there is a road, it would not be mentioned in the Schedule. The learned Writ Court accepted that it is true that the Survey Department has measured the disputed area and passed an order on 12.12.2007. However, the learned Writ Court was not inclined to accept the said report and observed that the Court cannot come to a conclusion that there is no east- west road in the place mentioned in the petition. ______________ Page 11 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

12. Further, the learned Writ Court observed that the settled principle of law is that boundaries prevail over area and both the writ petitioner and the seventh respondent can claim their right only after excluding the width and length of the road mentioned in the petition and therefore, on the basis of the measurements given by the Survey Department, the Court cannot come to a conclusion that there is no road in the place mentioned in the petition and therefore, the contention advanced by the respondents 7 and 8 / review applicants was rejected.

13. After rendering such a finding, the Court observed that S.M.Gajendran (petitioner in W.P.(MD) Nos.14847 and 16256 of 2017), has executed a Gift Settlement Deed in favour of the respondent – Corporation, wherein it has been clearly stated that the roads have been donated in favour of the Corporation for maintenance. Thus, the learned Writ Court concluded that the Gift Settlement Deed having been executed in favour of the respondent – Corporation, the roads vest with the respondent - Corporation and therefore, the encroachments made by the respondents 7 and 8 have to be ______________ Page 12 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 removed. Thus, on a reading of the order passed in the writ petition, the learned Writ Court, though noted that a survey was conducted and a report, dated 12.12.2007, was submitted, was not inclined to go by the said report, primarily, on two grounds. Firstly, on the ground that in two Sale Deeds, dated 07.12.1981 and 20.10.2005, the road has been mentioned as one of the boundaries to property in question. Secondly, on the ground that S.M.Gajendran, Promoter, has executed a Gift Settlement Deed, dated 13.11.2015, by virtue of which, the road is vested with the respondent – Corporation and therefore, they are bound to remove the encroachments made by the respondents 7 and 8.

14. Alleging that the order and observations made by the learned Writ Court suffer from error apparent on the face of the records, review application has been filed by Jothibai Kannan and R.V.Kannan / respondents 7 and 8 in the writ petition on the grounds that the survey report could not be ignored; description of the property in the sale deeds showing the road cannot create a non-existing road and tampering of records had been taken place at the instance of the writ petitioner and the claim is mala fide and lacks bona ______________ Page 13 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 fide and the unilateral execution of the Gift Settlement Deed in favour of the respondent – Corporation cannot give any vested right.

15. First we shall consider the effect of the Gift Settlement Deed executed by S.M.Gajendran and whether it is a valid Gift Settlement Deed and what is the stand taken by the respondent – Corporation.

16. In fact, the review applicant R.V.Kannan had filed a complaint before the District Registrar to enquire into the registration of document No. 6642 of 2015 and for cancellation of the said document, which is a Gift Settlement Deed executed by S.M.Gajendran. Immediately thereafter, on receipt of the enquiry notice, S.M.Gajendran rushed to this Court and filed W.P.(MD) No.14847 of 2017 seeking to quash the notice and not to conduct any enquiry. The case of S.M.Gajendran is that the action of the District Registrar is arbitrary and against the order passed in W.P.(MD) No.8606 of 2010. Further, the writ petitioner – Murali Sundaram had filed Cont.P.(MD) No.1109 of 2017 and the same is pending and therefore, no enquiry can be conducted in respect of the said document. ______________ Page 14 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

17. The respondent – Corporation, by a notice dated 09.06.2017, rejected the request made by the said S.M.Gajendran seeking to hand over the road portion to the respondent – Corporation on the ground that cases are pending. This notice has also been impugned by S.M.Gajendran in W.P.(MD) No.16256 of 2017. Thus, we find that the said S.M.Gajendran has not taken any independent stand insofar as both the writ petitions filed by him and he would rely upon the order and directions issued in W.P.(MD) No.8606 of 2010 filed by Murali Sundaram.

18. Admittedly, the Gift Settlement Deed, dated 13.11.2015, has heen unilaterally executed by S.M.Gajendran. In terms of Section 251 of the Coimbatore City Municipal Corporation Act, which has been made applicable to the Trichirappalli City Municipal Corporation, prior permission is required to execute a Gift Deed in favour of the Corporation. Therefore, unilateral registration of the document at the behest of S.M.Gajendran can hardly create any right either in favour of S.M.Gajendran or in favour of Murali Sundaram. Therefore, we are of the view that the learned Writ Court could not have taken ______________ Page 15 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 a decision in favour of the writ petitioner Murali Sundaram relying upon the Gift Settlement Deed, dated 13.11.2015, which is an unilateral document executed by S.M.Gajendran illegally with no prior permission of the respondent – Corporation. Furthermore, the Gift Settlement Deed having not been accepted and having not been made in the manner provided for under the statute is a nullity and the said document, namely, document No.6642 of 2015 requires to be struck off.

19. Having held so, we have to see as to whether the other reason given by the learned Writ Court to justify the observation that there is a road in existence is sustainable. This observation is on account of the fact that in two sale deeds, the boundary of the property has been shown as road. The question would be whether if in a sale deed executed between two private parties, if the boundary is mentioned as road, can it be a conclusive proof that there is a public road. Interestingly, the order, which was impugned in W.P. (MD) No.8606 of 2010 is dated 17.07.2008. The writ petition has been filed after a period of two years. This would have been sufficient to dismiss the writ petition on the ground of delay and laches. The writ petition was pending ______________ Page 16 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 before this Court and allowed only on 03.03.2017. In the interregnum, S.M.Gajendran has executed two documents, one being a Sale Deed bearing document No.6640 of 2015, dated 13.11.2015 in favour of the writ petitioner Murali Sundaram and another document bearing document No.6642 of 2015 also dated 13.11.2015, which is a Gift Settlement Deed in favour of the respondent – Corporation. Thus, it is clear that the execution of the Gift Settlement Deed was fraudulent for the purpose of creating some document with in an intention to establish that there was a road. Furthermore, the question would be whether S.M.Gajendran could have executed the Gift Settlement Deed when he is not the predecessor-in-title of the respondents 7 and 8 / review applicants and their predecessor-in-title was Tmt.Sakunthala Bai.

20. As pointed out, the learned Writ Court rejected the survey report, dated 12.12.2007 and chose to rely upon the description of the property mentioned in the Sale Deed, dated 17.12.1981 executed by Sakunthala Bai in favour of the seventh respondent / review applicant and Sale Deed dated 20.10.2005 executed by R.Sundaramoorthi and M.Vijaya, ______________ Page 17 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 represented by their General Power of Attorney Agent V.Annamalai, wherein one of the boundaries is shown to be a road. In our considered view, merely because two private parties described one of the boundaries of their property to be a road or a Government property, that itself will not confer any right on any individual to claim that the property adjoining his property is a road and it is only the Department of Land Survey and Records, who have to confirm as to whether there is any road in existence.

21. The eighth respondent – R.V.Kannan had submitted a complaint to the Director of Settlement and Survey, vide letter dated 11.09.2007, followed by a reminder dated 07.11.2007, requesting for an enquiry into the tampering of records and survey sketches stating that his house comes under S.F.No.173/1A & 1B and in the Natham Survey, New T.S.No.30 was allotted to his house in Ward-AG in Block No.15. To the southern side of his property, there are two house sites i.e., in the eastern side, the house site belongs to R.M.Narayanan in T.S.No.32 and on the western side, the house site belongs to Anantha Shankar in T.S.No.31. In between the eighth respondent's house and the houses of R.M.Narayanan and ______________ Page 18 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 Anantha Shankar, there is a permanent compound wall in existence running east-west of the property and the compound wall was constructed commonly by both parties sharing expenses and such a construction was put up even before the Natham Survey and Settlement Proceedings.

22. Further, it is submitted that when the eighth respondent approached the Corporation to verify the Survey Sketch, he was shocked to see that manipulation and tampering of the survey map has been made and that no proper procedure has been followed before making of such correction. When the eighth respondent pointed out the same to the Surveyor, he was advised to approach the Assistant Director of Land Survey and Records, because the original records have been supplied by the said Department. Further, on approaching the Assistant Director of Land Survey and Records, he was shown the original Sketch and thereafter, he noticed the deliberate tampering and manipulation made in a clandestine manner in the Sketch and this was brought to the notice of the Manager Technical and requested his permission to inspect the other Survey Sketches, namely, Location Map, True Location Map, Survey Maps (before natham survey and after survey map), ______________ Page 19 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 G.O. G.O.P.No.1177, C.T. & R.E., dated 30.10.1987 and the District Gazette No.3 of Trichy District, dated 13.03.2006.

23. The eighth respondent has also mentioned about certain monetary demands made by certain officers in the Department. Further, it was stated that R.M.Narayanan, who is the neighbour on the southern side of the eight respondent's house, had sold his house several years back and it has changed several hands and lastly during 2005, Murali Sundaram / writ petitioner had purchased the house and the Sale Deed was executed by V.Annamalai, a Real Estate Dealer / Broker, who always deals with litigated properties and they joined together and with the help of the one staff working in the Office of the Assistant Director of Land Survey and Records, effected tampering and manipulation of the records. Further, it was mentioned that the employee, who is a conspirator, still continues to work in the Office of the Assistant Director. Even thereafter, immediate action was not taken and the eighth respondent submitted a reminder, dated 07.11.2007, after which, the matter appears to have gained seriousness and the Regional Joint Director of Survey and Land Records had conducted inspection and a report had been ______________ Page 20 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 submitted to the Special Commissioner, dated 12.12.2007, confirming the tampering of records. The relevant portion of the report reads as follows:

“BkYk; efu g[yvz;.31-w;fhd gj;jpu vz;.2104/85 ehs; 1.4.85-d;go Fwpg;gpl;Ls;s brl;a{ypy; B$hjpghapd; nlj;jpw;F bjw;F vd;W Fwpg;gplg;gl;Ls;sJ. g[yvz;.30-f;Fk;, 31-f;Fk;

nilapy; ghij nUg;gjhf Fwpg;gplg;gltpy;iy. BkYk; g{kpapy; mDgtg;goa[k; ghij Vjkpy;iy vd;gJk; mDgtj;ij mog;gilahff; bfhz;Bl Vw;fdBt epymsit bra;ag;gl;Ls;sJ vd;gJk; MtzA;fspypUe;J bjspthfj; bjhpfpwJ.

kDjhuUk; mtuJ kidtpa[k; Brh;e;J 16.500 rJu mo epyk; fpiuak; bgw;Ws;sdh;. Mdhy; efusit MtzA;fspd; goa[k;, mdgtg;goa[k; tp!;jPuzk; 15.750 rJu mo gjpt[ bra;ag;gl;Ls;sJ. ne;j kidfs; mlA;fpa Lay-out mA;fPfhpf;fg;glhj xd;whFk;. mA;fPfhpf;fg;glhj kidg;gphpt[ vd;gjhy; bghJ cgBahfj;jpw;F tplg;gl;l rhiyfs;, re;Jfs; Mfpait guhkhpg;gpw;F cs;shl;rp eph;thfj;jplk; xg;gilf;ftpy;iy. 1993-ypUe;J jpU.Mh;.tp.fz;zd; jdJ epyj;jpw;F Rw;Wr;Rth; vGg;gp mDgtpj;J tUtJk; MtzA;fspd; mog;gilapy; cWjpahfpwJ. 13.03.2006-y; 13- tJ nWjp tpsk;guk; bra;ag;gl;L efu msit Ky MtzA;fs; khefuhl;rp kw;Wk; guhkhpg;g[f;F xg;gilf;fg;gl;l epiyapy; kDjhuh; jpU.Mh;.tp.fz;zd; vd;gtuJ kDtpy; Fwpg;gpl;Ls;sgo tpjpKiwfis mDrhpf;fhky; RBM, DBM Mfpa MtzA;fspy; 'Malafide Intention' Dld; jpUj;jA;fs; bra;ag;gl;Ls;sJ. cWjpahfj; bjhpa tUtjhy; tpjpKiwfis ______________ Page 21 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 mDrhpf;fhky; bra;j jpUj;jA;fis nuj;J bra;J Kd;gpUe;jgoBa MtzA;fis rhp bra;a chpa eltof;if vLf;Fk;go cjtp naf;Feiu Bfhuyhk;.

BkYk; jpUr;rp cjtp naf;Fehpd; mwpf;ifapd;go efu msit vz; 30 kw;Wk; 32y; tpjpKisfSf;F Kuz;ghlhf jpUj;jA;fis (Tampering of Records of Right) bra;ag;gl;ljw;F bghWg;ghd bjhHpy;El;g Bkyhsh; jpU.f.fjpBurd; kw;Wk; tiuthsh; jpU.Bt.jA;fuh$; MfpBahh;fs; kPJ xGA;F eltof;if Bkw;bfhs;syhk; vd;gija[k; gzpt[ld; bjhptpj;Jf; bfhs;fpBwd;.”

24. The Survey Report, dated 12.12.2007, has attained finality and though the writ petitioner purchased the property in the year 2005 and the report was placed in the year 2007, till date, the said report was never questioned by the writ petitioner. In such circumstances, the learned Writ Court cannot brush aside the Survey Report, dated 12.12.2007, which has brought to light a serious fraudulent activity committed in the Office of the Assistant Director of Land Survey and Records and that it was with the connivance of one of the employees / staff working in the very same office, whose name was disclosed confidentially to the Special Commissioner and Commissioner of Land Survey and Records. The said Survey Report in no ______________ Page 22 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 uncertain terms states that there is no road in existence as claimed by the writ petitioner. In such circumstances, we are of the firm view that the Survey Report, dated 12.12.2007, could not have been ignored by the learned Writ Court and the finding that road is in existence based upon a description in two Sale Deeds, dated 07.12.1981 and 20.10.2005 cannot bring into existence a road, which was never in existence.

25. Mr.K.S.Sankar Murali, learned counsel, placed reliance on the decision of the Honourable Supreme Court in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan and others [(1997) 11 SCC 121] for the proposition that footpath, street or pavement are public properties, which are intended to serve the convenience of general public. They are not laid for private use and indeed their use for a private purpose frustrates the very object for which they are carved out from portions of public roads. In our considered view, this decision can render no assistance to the case of the writ petitioner as the question, which was considered, is whether at all there was a road as claimed by the original writ petitioner and if there was a road, whether it has been encroached. We have enough material to hold that there was no ______________ Page 23 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 such road and the road was sought to be shown to be in existence by tampering of official records. Equally, the decision in the case of Ammani vs. The Tiruchengode Municipality [2004-2-L.W.112] can have no application to the facts and circumstances of this case.

26. The learned counsel placed reliance on the decision in Ranganathan and another vs. Damodaran [1999 (II) CTC 446] to support his contention that the recitals in the sale deeds were rightly looked into by the learned Writ Court while allowing the writ petition. As observed by us earlier, if two private parties execute a sale deed, in which one of the boundaries shown to be a public property, that by itself will not change the character of the property into a public property unless and until the official records demarcate the property as a public property. Furthermore, the said decision arose out of a civil litigation where the facts are entirely different and therefore, the decision can render no assistance to the case of the writ petitioner.

______________ Page 24 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

27. Reliance was placed on the decision in S.Syed Abubakkar (died) and others vs. Sardhar [(2011) 4 MLJ 744] for the proposition that boundaries shall prevail over extent. This decision also arose out of the civil litigation where the extent of the property appears to have been in dispute. Whereas, in the case on hand, whether there was a public road in existence or not. Thus, this decision can hardly help the case of the original writ petitioner.

28. Furthermore, unilateral execution of the Gift Settlement Deed and getting it registered as document No.6642 of 2015 by S.M.Gajendran is a fraud committed by him, who admittedly on the date when he executed the document, had no right to do so nor he was predecessor-in-title of the respondents 7 and 8. Furthermore, on account of certain untoward behaviour of Murali Sundaram, a criminal case was registred against him in Crime No. 149 of 2015, on the file of the Inspector of Police, K.K.Nagar Police Station. The said Murali Sundaram filed Crl.O.P.(MD) No.12451 of 2015 to quash the said complaint. Copy of the quash petition has been filed in the typed set of papers, from which, we see upto Paragraph No.18 of the petition, it is all ______________ Page 25 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 averments about the claim of the writ petitioner, the various litigations etc., and he sought for quashing complaint on the only ground that no such occurrence took place on 01.03.2015 and that he did not made any attempt to remove the compound wall nor he used any filthy language against Jothibai Kannan and that a false case has been registered against him for alleged offence under Sections 427 and 294(b) of Cr.P.C. and subsequently, it was changed for the offence under Section 3 of the Tamil Nadu Property (Prevention and Damages and Losses) Act. Curiously, the petitioner did not prosecute the quash petition and the learned counsel for the petitioner did not appear and consequently, the quash petition was dismissed by order dated 08.10.2015.

29. Further, it is relevant to note that the layout is an unapproved layout and the entire case of the writ petitioner was based upon tampered survey records and the Survey Report, dated 12.12.2007 clearly states that there was no road in existence. In the absence of any challenge to the said report, the very foundation of the case of the writ petitioner – Murali Sundaram has to necessarily fail as unsubstantiated and fraudulent. ______________ Page 26 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 Furthermore, we find that the contentions of the respondent – Corporation as well as the contentions of the respondents 7 and 8, as mentioned in their counter affidavit, have not been dealt with by the learned Writ Court. More importantly, the learned Writ Court did not consider the aspect that the Layout was an unapproved Layout and therefore, the question of vesting of any common area with the respondent – Corporation would not automatically arise. Even assuming there was any approval granted for the Layout, there is a procedure to be followed before a Gift Deed can be registered. Thus, we are of the clear view that the case as developed by Murali Sundaram is absolutely without any basis and the entire edifice sought to be created by Murali Sundaram has to be necessarily crumble and crushed on account of the fraudulent activity with the active assistance of a person in the Office of the Assistant Director of Land Survey and Records by tampering of the survey records and when such a serious mistake had been committed, the learned Writ Court ought not to have allowed the writ petition solely based upon the description of the property in the two Sale Deeds and the unilateral Gift Settlement Deed. As mentioned above, S.M.Gajendran, who had absolutely no right to execute the Gift Settlement Deed and any such a deed cannot be ______________ Page 27 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 unilaterally accepted and therefore, rightly refused to be accepted by the respondent – Corporation.

30. The facts make it clear that S.M.Gajendran is also a part of the racket in the attempt made by Murali Sundaram and the power agent of his vendor to gain some unfair advantage. Fortunately, for the respondents 7 and 8, the Special Commissioner and Commissioner of Land Survey and Records had taken up the matter seriously and ordered enquiry and the Regional Joint Director, after conducting enquiry, has brought out the fraud and tampering of final records committed.

31. Mr.K.S.Sankar Murali, learned counsel appearing for the writ petitioner, relied upon the following decisions to explain the scope of review:

i. Meera Bhanja vs. Nirmala Kumari Choudhury [(1995) 1 SCC 170] ii. Parsion Devi and others vs. Sumitri Devi and others [(1997) 8 SCC 715] iii. Lily Thomas and others vs. Union of India and others [(2000) 6 SCC 224] ______________ Page 28 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 iv. The Government of Tamil Nadu vs. Registration Department SC/ST and M.B.C.Employees General Welfare Sangam [2006 (1) CTC 161] v. Promoters & Builders Assn. of Pune vs. Pune Municipal Corpn. and others [(2007) 6 SCC 143] vi. Bagirathi Ammal vs. Palani Roman Catholic Mission [(2009) 10 SCC 464] vii. R.Karuppusamy vs. The Regional Manager, Tamil Nadu Co-op. Marketing Federation [2010 (2) CTC 40] viii. M.Kamala Kannan and others vs. M.Manikandan [2014 (3) CTC 28] ix. Sivakami and others vs. State of Tamil and others [2018 SAR (Civil) 817] : [(2018) 4 SCC 587]

32. The legal principles deducible from the above decisions are as hereunder:

(i) Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1 CPC.

______________ Page 29 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

(ii) A review petition has to be entertained only on the ground of error apparent on the face of the record and not on any other ground.

(iii) An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions.

(iv) In exercise of the jurisdiction under Order 47, Rule 1 CPC, it is not permissible for an erroneous decision to be “reheard and corrected”.

(v) Power of review cannot be exercised merely to substitute a point of view.

(vi) Review may be called for where new and important matter has been discovered, which after exercise of due diligence was not within the knowledge of petitioners at the time of the passing of the judgment under review.

______________ Page 30 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

(vii) The phrase “any other sufficient cause” occurring in Order 47, Rule 1 CPC must mean reason sufficient on grounds at least analogous to those specified in the rules.

(viii) Review is not a routine procedure.

(ix) Review of an earlier order is not permissible unless the Court is satisfied that material error manifest on the face of the order undermines its soundness or results in miscarriage of justice.

(x) A review of judgment in a case is a serious step and resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

(xi) The error should be something more than a mere error and it must be one which must be manifest on the face of the record.

(xii) In review re-arguing matter on merits is not permissible.

______________ Page 31 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017

(xiii) Review application cannot be construed as an appeal in disguise.

(xiv) Power of review is not to be confused with the appellate power.

(xv) Power of review under Order 47 Rule 1 CPC is very limited and it may be exercised only if there is a mistake or an error apparent on the face of the record.

33. The above legal principles were borne in mind by this Court while considering the review application. Brushing aside a survey report, which was available on record and which brought out tampering of official records, ought to have been taken note of by the learned Writ Court, while considering the prayer sought for in the writ petition. This has led to an error, which is manifest on the face of the order. Furthermore, The Court proceeded on the basis that S.M.Gajendran had executed a gift deed without noting the fact that the gift deed was a document, which was unilaterally executed by ______________ Page 32 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 him, not accepted by the respondent – Corporation and could not have been treated to be a valid gift. These facts have emerged on the face of the order passed in the writ petition without any requirement for a long drawn reasoning. Therefore, we are fully satisfied that we are justified in exercising our review jurisdiction. For the above reasons, we are of the clear view that the order passed in the writ petition suffers from error apparent on the face of the records warranting exercise of review jurisdiction.

34. In the result,

(i) Rev.Aplw(MD) No.21 of 2017 is allowed and the order dated 03.03.2017 passed in W.P.(MD) No. 8606 of 2010 is set aside. Consequently, the said writ petition is dismissed.

(ii) W.P.(MD) Nos.14847 & 16256 of 2017 are dismissed.

(iii) Since the order dated 03.03.2017 passed in W.P. (MD) No.8606 of 2016 has been set aside, the question of entertaining a contempt petition ______________ Page 33 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 does not arise. Accordingly, Cont.P.(MD) No. 1109 of 2017 is dismissed.

(iv) No costs. Consequently, connected miscellaneous petitions are closed.

[T.S.S., J.] [S.A.I., J.] 29.06.2021 Index : Yes / No Internet : Yes / No Note :

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate / litigant concerned.

krk ______________ Page 34 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 To:

1.The Special Commissioner & Director of Survey & Settlement, Chepauk, Chennai-600 005.

2.The Deputy Director, Survey & Settlement, Kalaiarangam Building, Tiruchirappalli-620 001.

3.The District Collector, State of Tamil Nadu, Tiruchirappalli-620 001.

4.The Thasildar, Town Hall, Tiruchirappalli-620 002.

5.The Inspector General of Registration, 100, Santhom High Road, Chennai-600 028.

6.The District Registrar, Office of the District Registrar, Trichy.

7.N.Ravichandran, The Commissioner, Tiruchirappalli City Municipal Corporation, Tiruchirappalli-620 001.

8.M.Dhayanithi, The Assistant Commissioner, Ponmalai Zone, Tiruchirappalli City Municipal Corporation, Circuit House Road, TVS Tollgate, Tiruchirappalli-620 001.

______________ Page 35 of 36 https://www.mhc.tn.gov.in/judis/ Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 T.S.SIVAGNANAM, J.

and S.ANANTHI, J.

krk COMMON ORDER IN Rev.Aplw(MD) No.21 of 2017 and W.P.(MD) Nos.14847 & 16256 of 2017 and Cont.P.(MD) No.1109 of 2017 29.06.2021 ______________ Page 36 of 36 https://www.mhc.tn.gov.in/judis/

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