Mohanan vs. State Of Kerala

The brief facts of the case as revealed from the Writ Petition relevant for disposal of this Writ Appeal are as follows: Appellant along with his three brothers are the co-owners of the property of around 64 cents situated in Malappuram District. Respondents 6 and 7, who are two among the three brothers of the appellant have been arrayed as parties to the Writ Petition. It is a case of the appellant that by Ext.P1 sale deed, he and his brothers became owners of the relevant landed property. Appellant contends that even though the properties are in joint ownership, he himself had expended substantial amounts and had constructed a residential building as well as a non-residential building in the said property. While so, Ext.P5 notice was issued as against respondents 6 and 7 invoking Section 49 of the Revenue Recovery Act. The specific case of the appellant is that he

The crux of the case of the appellant is that insofar as the properties have not been demarcated and as the respective shares are not identifiable by metes and bounds, it was not proper on the part of the revenue authorities to issue Ext.P5 notice. According to him, unless and until the specific shares of respondents 6 and 7 are discernible and ascertained, the relevant property cannot be proceeded against in revenue recovery. The appellant would further contend that he has already filed a suit numbered as O.S.No.31 of 2023 before the juri ictional Munsiff Court at Ponnani, seeking partition. He contends that insofar as the said suit is pending, the proceedings under Section 49 ought to have been stayed and ought not be proceeded till the culmination of the suit.

Appellant has preferred Ext.P6 representation before the 2nd respondent seeking to drop the revenue recovery proceedings during

We have heard Sri.K.R Avinash, the learned counsel for the appellant and the learned Government Pleader for respondents 1, 2, 3, 4 and 5. Respondents 6 and 7 are not represented.

The learned Single Judge had considered the fact that the partition suit OS.No.31 of 2023 is presently pending, and had found that insofar as no interim injunction had been granted in favour of the appellant, the proper remedy for him lay in pursuing the said civil proceedings, rather than rushing to this Court with the Writ Petition. The learned Single Judge has also found that the Writ Petition is untenable insofar as the appellant has not been able to point out any

We find that the civil proceedings initiated by the appellant is at present pending before the competent Munsiff Court. It is settled law that the revenue recovery authority is entitled to proceed against the property with respect to which Section 49 notice has been issued after due compliance of the procedure envisaged, notwithstanding the fact that the same remains in co-ownership of a person who is not proceeded against for any liability. Further, the appellant has not pointed out any error or non compliance on the part of the revenue recovery authorities in complying with the mandatory procedure before issuing the RR notice impugned. It is also trite that once a civil remedy has been invoked, the revenue recovery authorities have no juri iction to decide on the titular disputes with respect to the property which is the subject matter of such suit. Once proceedings under civil law are invoked and are pending, the proper remedy for the appellant is to continue with the said remedies and pursue the same in accordance with law. At any rate, filing of the Writ Petition while the civil litigation is pending is not the appropriate remedy so as to challenge a proceeding under Section 49 of the Revenue Recovery Act.

The learned Single Judge has thus properly found that the appellant's right, if any, is to move the concerned civil court and to obtain injunction if he is entitled to it under law. We see no reason to interfere with the finding of the learned Single Judge. The Writ Appeal is dismissed. No costs. DR. A.K.JAYASANKARAN NAMBIAR JUDGE SYAM KUMAR V.M. JUDGE mns