Rajeswari.S v. The Revenue Divisional Officer of Madurai

ORDER The above writ petition is filed for the issue of a Writ of Certiorari calling for the records of the impugned order passed by the first respondent in Ni.Mu.No. 2020/2021/B dated 11.06.2021 and quashing the same as illegal.

2.The facts in brief which precedes for filing of the writ petition are herein below set out.

3.It is the case of the petitioner that the land comprised in S.No.24/5, measuring an extent of 0.05-5 hectares (13.05 cents), situate in Keelamathur Village, Madurai West Taluk, Madurai is the ancestral property of one A.Periyasamy Aasari. On the demise of A.Periyasamy Aasari, the property devolved on his son, P.Selvaraj and his grandsons, S.Selvaprabhu and S.Rajiv by virtue of partition dated 02.06.1974. Revenue records were also mutated in their names. Thereafter, by a registered sale deed dated 30.12.2005, Selvaraj and his sons, S.Selvaprabhu and S.Rajiv had sold the land to the third respondent. The third respondent, in turn, had sold the land to one S.Rajasekaran and his wife R.Shanthi under a registered sale deed dated 26.09.2007. They had also got the revenue records mutated in their names by the second respondent. The petitioner has purchased the said land from Rajasekaran and his wife Shanthi under a registered sale deed dated 28.10.2020 and the second respondent had granted patta in her name. Therefore, it is the case of the petitioner that from 1974 till 2021, the patta in respect of the above lands stood in the name of the petitioner and her predecessor in interest.

4.After her purchase, the petitioner had got the lands surveyed by the Surveyor belonging to the second respondent on 23.03.2021. The Surveyor had measured the petitioner's land and laid a survey stone leaving an extent of 930 sq.ft., for pathway. The petitioner had therefore fenced an extent of 4510 sq.ft., and was enjoyment of the same.

5.It is the further case of the petitioner that the fourth respondent, who owned 20 cents of land in S.No.24/4 in the same village and situate opposite to the petitioner's land had not left out any space for pathway. This was confirmed by the Surveyor. Therefore, the petitioner had called upon the fourth respondent to leave out some space for the pathway from out of her lands. However, the fourth respondent was not willing to do so and on the contrary was trying to encroach into the petitioner's land with the active connivance of the third respondent. The petitioner was therefore constrained to file a suit O.S.No.11 of 2021 for declaration and injunction on the file of the learned Vacation Civil Judge, Madurai and the same is pending.

6.While so, the first respondent without conducting any enquiry and issuing notice to the petitioner has cancelled the patta granted to the petitioner and her vendor and directed the second respondent to restore the patta in the name of A.Periyasamy Aasari as it stood in the year 1974. Therefore, the petitioner was constrained to move this Court for the relief of Certiorari.

7.The respondents have been served and are represented by the counsels.

8.The third respondent has filed a petition for vacating the stay in which he has contended as follows: "12. In this case, the writ petitioner had suppressed the fact that she has attempted to encroach and block a portion of the road which is an access to more than 150 families. She has also suppressed the criminal complaint and enquiry before the Police station. Further, on the strength of interim order granted by this Hon'ble Court, she has infact put up a fencing by planting fencing stones upto the middle of the road in S.No.24/5 by showing the erroneous patta."

9.Heard the learned counsels appearing on either side.

10.Admittedly, the impugned order does not reflect the service of notice on the petitioner and affording her an opportunity to put across her case which forms the touchstone of justice delivery system. Therefore, the impugned order passed by the first respondent in Ni.Mu.No.2020/2021/B dated 11.06.2021 is set aside and the matter is remitted back to the first respondent for fresh consideration. The petitioner has himself filed a suit in O.S.No.11 of 2021 before the Sub Court, Thirumangalam, seeking declaration and injunction and the suit schedule property has been described as follows: "khz;G ePjpkd;w mjpfhu tuk;gpw;Fl;gl;l kJiu khtl;lk;> kJiu Nkw;F tl;lk;> fPokhj;J}h; fpuhkj;jpy;> mad; hPrh;Nt vz;: 24/5-y; fl;Lg;gl;lJk;> kJiu njw;F> 1 eph; ,iz rhh;gjptf Mtz vz;:7782/2020-d;gb> ghijf;fhf tplg;gl;l 930 rJub Nghf thjpf;F chpikAk;> ghj;jpaKkhdjhd 4510 rJub cs;$L msTs;s fhyp kidaplj;jpw;F ehd;Fkhy;> mbasT tpguk;. tlf;Nf : Jthpkhd; fpuhk ghrd tha;f;fhy; fpof;Nf : ,uh[uhN[];thp GQ;ir njw;Nf : ehpkil tha;f;fhy; Nkw;Nf : thjp Nuhl;bw;fhf tpl;l ,lk; ,jw;Fl;gl;l Nkw;Gwk; 1-tJ jhf;F kid [hjpabahy; fpoNkyb tlGwk; 42> njd;Gwk; 34> njd;tlyb fPo;Gwk; 70> Nky;Gwk; 62-f;F 2508 rJub cs;s kidAk;> ,jd; fPo;Gwk; 2-tJ jhf;F fpoNkyb tlGwk; 28> njd;Gwk; 28> njd;tlyb fPo;Gwk; 73> Nky;Gwk; 70-f;F 2002 rJub cs;s kidAk;> Mfpa ,uz;L jhf;FfSk; $ba nkhj;jk; 4510 rJub cs;s kidAk;> Nkw;gb kidAld; ,ize;j midj;J ghj;jpa Rje;jpu rk];jq;fSk;."

11.Further, the sale deed under which the petitioner has purchased her property also demarcates the western boundary as the 30' pathway. It is this 930 sq. ft. pathway which is now claimed to have been encroached by the fourth respondent. It is needless to state that the first respondent shall first consider as to whether there is such encroachment on the 930 sq. ft. pathway. If there is such encroachment, the same shall be removed and thereafter, the first respondent shall proceed to pass orders on the representation. The first respondent is directed to pass appropriate orders on merits and in accordance with law after issuing notice to the petitioner, the third respondent and all other parties concerned within a period of 8 weeks from the date of receipt of a copy of this order.

12.In the result, the Writ Petition is allowed. However, there shall be no order as to costs. Consequently, connected Miscellaneous Petitions are closed.

Speaking : Yes / No

0.06.2023 NCC : Yes / No Internet : Yes / No Index : Yes / No mm/abr To

1.The Revenue Divisional Officer of Madurai, Collectorate Buildings, Madurai 625 020.

2.The Tahsildar of Madurai West, Theni Main Road, Madurai 625 016.

P.T.ASHA, J. abr/mm

07.06.2023

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 07.06.2023 CORAM THE HONOURABLE Ms.JUSTICE P.T.ASHA and W.M.P.(MD) Nos.7954 and 8785 of 2021 S.Rajeswari ... Petitioner /vs./ 1.The Revenue Divisional Officer of Madurai, Collectorate Buildings, Madurai 625 020. 2.The Tahsildar of Madurai West, Theni Main Road, Madurai 625 016. 3.S.Kudbudeen 4.P.K.Vanitha ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, calling for the records of the impugned order passed by the first respondent in Ni.Mu.No.2020/2021/B dated 11.06.2021 quash the same as illegal. For Petitioner : Mr.K.Murugesan For R1 & R2 : Mr.D.Ghandhiraj Special Government Pleader For R3 : Mr.H.Lakshmi Shankar