Mr.Kalimuthu, v. The District Revenue Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 28.10.2021

CORAM:

THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN W.P.NO.2946 OF 2014 AND M.P.NO. 1 OF 2014 Kalimuthu S/o.Veeramuthu

...Petitioner

Vs

1. The District Revenue Officer, Cuddalore District, Cuddalore.

2. The Tahsildar, Virudhachalam Taluk, Cuddalore District.

3. Arumugam

...Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of India to issue a writ of certiorari, calling for the records relating to the order dated 16.08.2013 in Na.Ka.V.2/6590/2013 of the first respondent herein and quash the same.

For Petitioner : Mr.AL.Ganthimathi For R1 & R2 : Mr.M.R.Gokul Krishnan Government Advocate For R3 : Mr.C.Arun Kumar

ORDER

This Writ Petition has been filed for issuance of writ of certiorari, calling for the records relating to the order dated 16.08.2013 in Na.Ka.V.2/6590/2013 of the first respondent herein and quash the same.

2. Heard, Mr.AL. Ganthimathi, learned counsel appearing for the petitioner, Mr.M.R.Gokul Krishnan, the learned Government Advocate appearing for the respondents 1 & 2 and Mr.C.Arun Kumar, learned counsel appearing for the third respondent.

3. The brief facts of the case is that the land admeasuring to an extent of 8 1⁄2 cents in Old Survey No.181/1, New Survey No.339/21 is a common pathway, which is in existence for more than 100 years. It is used by the petitioner, his ancestors, neighbours and also brothers of the third respondent herein.

4. While being so, the third respondent claimed that the said pathway is owned by him. The subject property originally belonged to one Balan and he had two sons viz., Kuppan and Govindan. The said Kuppan had two sons viz., Veeramuthu and Vasudevan. The said Veeramuthu is the father of the petitioner and the said Vasudevan had three sons. The said Govindan had four sons and in which one of the legalheir is the third respondent herein.

5. By a registered partition deed dated 18.08.2006 "A" schedule 1st item was alloted to the petitioner. The land comprised in survey No.339/22, 23, 24 were divided as east and west and western portion was allotted to the petitioner, which is the item one of "A" schedule property. The survey No.339/12, 16, 17 was orally partitioned and survey No.339/12 was alloted to the said Vasudevan. The western portion of the "A" schedule item two is used as garden and cattle shed. Thus the petitioner is in possession and enjoyment of the said partition for more than twenty years.

6. The "B" schedule property comprised in survey No.389/21 is the common pathway, which is in existence for more than 100 years. It is used as a common pathway for all.

However, the third respondent encroached some portion of the common pathway. Therefore, the petitioner was constrained to file a suit in O.S.No.578 of 2006 on the file of the Principal District Munsif, Virudhachalam, for declaration of the said pathway as a common pathway and also permanent injunction restraining the defendants from in any manner interfering with the plaintiff's usage of his share through the common pathway. The petitioner also sought for mandatory injunction to remove the encroachments made in the "C" schedule property. The said suit was decreed in favour of the petitioner by a Judgment and Decree dated 19.01.2010 and aggrieved by the same, the third respondent preferred an appeal in A.S.No.21 of 2010 on the file of the Principal Sub Court, Virudhachalam and the same was also dismissed by a Judgment and Decree dated 08.09.2010. Against the said Judgment and Decree, the third respondent had filed second appeal before this Court in S.A.No.1569 of 2010 and it is pending.

7. Pending second appeal, the third respondent straight away made a representation before the first respondent for cancelling the sub-division as a common pathway in survey No.389/21 and issued house site patta in his favour. The first respondent issued notice and the petitioner appeared for enquiry and submitted his counter by citing the Judgment and Decree passed in his favour. Further, without considering the same, the first respondent directed the second respondent to sub-divide the same and to issue patta in favour of the third respondent herein.

8. The impugned order dated 16.08.2013 reveals that the subject land is not a common pathway at any point of time and wrongly entered into the register as "Sarkkar Poramboke land". The first respondent failed to see the Judgment and Decree passed by the Civil Court. In fact, the third respondent filed the second appeal in S.A.No.1569 of 2010 and it is pending before this Court for adjudication. The first respondent is not a competent authority to decide the title over the property. Therefore, the impugned order cannot be sustained and it is liable to be setaside.

9. In view of the above, the impugned order dated 16.08.2013 passed by the first respondent is hereby setaside. However, the third respondent is at liberty to approach the

second respondent for issuance of patta for the subject land, if he succeeds in the second appeal No.1569 of 2010.

10. In the result, the Writ Petition stands allowed. Consequently, connected Miscellaneous Petition is closed. No costs.

Sd/- Assistant Registrar(CS-III) // True Copy // Sub Assistant Registrar Lpp To

1. The District Revenue Officer, Cuddalore District, Cuddalore.

2. The Tahsildar, Virudhachalam Taluk, Cuddalore District.

+1cc to M/s.AL.Ganthimathi, Advocate, S.R.No.56249 +1cc to the Government Pleader, S.R.No.56664 W.P.No.2946 of 2014 and M.P.No. 1 of 2014 PMK(CO) RLP(17/11/2021)