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Case Title:   Sulthan Beevi.                                               … Petitioner                                  
                                              Versus

The Director of Town and Country Planning and  Anrs        … Respondents

Date of Decision:  Pronounced On 27.06.2023

Coram: THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN.

Citation: W.P(MD)No.1770 of 2022 and W.M.P(MD)Nos.1557 & 1558 of 2022.

Introduction:

Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari to call for the records of the second respondent pertaining to Na.Ka.No.2752/2020 TN2, dated 12.11.2021 granting technical approval vide Ko.O.Ma.Va/Na.Vuu.Vu.E (Tha.Maa) No.37/2021 to regularize the unapproved layout called “IBN BATTUTA CITY” formed by the respondents 5 and 6 and quash the same in so far as the lands comprised in SR.Nos.376/1B, 376/2 and 376/4B to an total extent of 50 cents in Soolamangalam 2- Sethi Revenue Village, Ayyampettai Town Panchayat, Thanjavur District.

Facts:

The petitioner had claimed that the property aforementioned belong to her grandfather Meeran Mydeen. During his life time, he had allotted the property to his 4 sons by executing four different registered settlement deeds. The petitioner’s father, Mohammed Ismail, stood benefited to the properties aforementioned measuring 50 cents in Survey Nos.376/1B,
376/2 and 376/4B in Soolamangalam 2 – Sethi Revenue Village, Ayyampetti Town Panchayat, by a settlement deed, dated 26.10.1997, registered as document No.1022 of 1977 in the office of the Sub Registrar, Ayyampetti.
The petitioner further stated that her father died intestate on 04.03.1992 leaving behind her mother and two other brothers of the petitioner. One of the brother died and the mother had also died. The petitioner claimed that she is in possession along with the other brother, but who however, is now abroad. The petition claimed that she is therefore, directly interested in the lands aforementioned and she came to know that the respondents 5 and 6 had formed a layout of a large area of the property, including the property aforementioned. Claiming that her property had been unlawfully included in the layout, the Writ Petition has been filed seeking interfernce with the order granting such approval of the lay out.

Issues:

• If the grand father had settled excess lands, then what he was allotted in the partition deed, then the issue of title itself must be adjudicated?
• Whether  the Writ Court can  adjudicate the issues on the basis of documents?

Legal Analysis:

The petitioner claims that the approval granted for the lay out bit “IBN BATTUTA CITY” in Soolamangalam 2 – Sethi Revenue Village, Ayyampetti Town Panchayat, Thanjavur District, by the respondents 1 and 2 should be interefered with, since she claimed title to
50 cents of lands in Survey Nos.376/1, 376/2 and 376/4. The flow of title for the said lands is not direct but rather had taken various turns and twist. The lands originally belonged to the
grand father of the petitioner and his brother Abdul Khader. They had entered into a parition deed. By the partition, the grand father was allotted portions of land in each one of the survey numbers. If he where to deal with the lands subsequently, by a further settlement deeds
infavour of his sons, then he could do so only with respect to the lands which had been allotted to him under the partition deed.
But a perusal of the record shows that he had dealt with excess land. Once this fact stares in the face of the petitioner, the petitioner should institute a suit seeking a relief to divide the lands, to demarcate the lands, to identify the lands and to partition the lands and to sub-divide the lands. Without a suit for declaration of title, as against her own paternal uncle since there has been a overlapping of lands in the four separate settlement deeds executed by the paternal grand father, the petitioner can never claim exclusive title for 50 cents of lands in the
aforementioned 3 survey numbers. She can claim joint title, but it is only with her brother who is surviving, and more importantly with the legal heirs of with her paternal uncles as there has been four separate settlement deeds executed by her grand father.

The records reveal that the paternal grand father of the petitioner had settled 24 cents of land in excess in survey No.376/1 in favour of his 4 sons. He had similarly, settled 21 cents of land in excess in Survey No.376/4. These facts may be right. These facts may be wrong, but the only forum to test these facts is the Civil Court where the settlement deeds will have to be put to test and marked as documents and will have to pass the test of admissibility, of proof and of being relevant. The partition deed will have to be examined. The schedule of the lands
in the partition deed between her grand father and his brother will have to be examined. Thereafter, the lands which was allotted to her grand father will have to be crystalized. Thereafter, the four settlement deeds executed by the grand father will have to be examined. The lands settled will have to be identified and finally the lands settled to the father of the
petitioner herein will have to be identified. If the grand father had settled excess lands, then what he was allotted in the partition deed, then the issue of title itself must be adjudicated. That would be a question to be adjudicated not between the petitioner and the respondents 5 and 6, but between the petitioner and her paternal uncles who were the beneficiaries of the settlement deeds executed by her grand father. Without there being a proper demarcation of lands, there can never be an adjudication in this Writ Petition on the basis of an affidavit.

Judgement:

It is thus seen that the petitioner will necessarily have to approach the Civil Court, seek necessary relief, to identify the lands and then, question the approval if the lands are identified and if they fall within the lands for which lay out was approved in favour of the
respondents 5 and 6. Without that preliminary examination of title, of possession and of demarcation of lands, this Court never can adjudicate on the issue raised by the petitioner. I cannot grant any relief to the petitioner herein. The petitioner should put the horse before the cart. She should first institute a suit, identify her lands and then question the approval order, if the lands fall within the approval granted for the lay out formed by the respondents 5 and 6. She cannot approch the Writ Court first and seek an order. The Writ Court can never adjudicate the issues on the basis of documents.

Conclusion:

The records reveal that the paternal grand father of the petitioner had settled 24 cents of land in excess in survey No.376/1 in favour of his 4 sons. He had similarly, settled 21 cents of land in excess in Survey No.376/4. These facts may be right. These facts may be wrong, but the only forum to test these facts is the Civil Court where the settlement deeds will have to be put to test and marked as documents and will have to pass the test of admissibility, of proof and of being relevant. The partition deed will have to be examined. So the court says The Writ Court can never adjudicate the issues on the basis of documents.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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