W.P (C) 4082 OF 2005

Transcription

1 IN THE GAUHATI HIGH COURT THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA MANIPUR: TRIPURA: MIZORAM: TRIPURA & ARUNACHAL PRADESH Smt. Manjula Haque Islam D/o late Amirul Haque Christian Basti G.S Road, Guwahati Panorama Apartment Chandmari, Guwahati Petitioner -Vrs.- The State of Assam Represented by The Secretary to the Department of Revenue, Dispur Guwahati The Hon ble Board of Revenue, Assam Guwahati, Panbazar Guwahati The Deputy Commissioner Kamrup (Metro), Panbazar Guwahati The Settlement Officer Re-settlement operation Govt. of Assam, Ulubari Guwahati The Assistant Settlement Officer Re-settlement Operation In-charge of Japorigog Revenue Village Ulubari, Guwahati The Guwahati Metropolitan Development Authority, Represented by its Chief Executive Officer, Bhangagarh, Guwahati Page 1 of 42

2 7. Mustafa Shahidul Islam Ex-MLA Christian Basti, G.S. Road Guwahati Sri Kanakeswar Gogoi S/o Sri Budu Ram Gogoi Sarumotoria, Guwahati Respondents BEFORE THE HON BLE MR JUSTICE U.B. SAHA Advocate for the petitioner: Advocate for the respondents 1to 5: Mr. S. Kalita Mr. Mr. B. N. Gogoi Govt Advocate Advocate for the respondent No. 7: Mr. Sheeladitya Ms T. Goswami Advocate for the respondents 6 & 8: None appears Date of hearing : Date of delivery of the judgment: JUDGEMENT AND ORDER 1. The challenge in this writ petition is the judgment, dated , passed by the Court of the Assam Board of Revenue, Guwahati, ( hereinafter, for short, referred to as Board of Revenue ), in case No. 107 RA (K)/02 (Annexure-24 Page 2 of 42

3 to the writ petition) whereby and whereunder the order, dated , passed by the Settlement Officer, Guwahati in R.A. No. 9 of 2002 (Annexure-16 to the writ petition) upholding the order, dated , passed by the Asstt. Settlement Officer, Guwahati in Misc. Case No. 29 of 2000, holding, inter alia, that the dispute in between the appellant and respondent are civil in nature and as such civil court can decide the title and accordingly the misc. case was disposed of thereby the appeal filed by the appellant, respondent No.7 herein, was disposed of 2. Heard Mr. S. Kalita, learned Counsel for the petitioner and Mr. Shiladitya, learned Counsel appearing for respondent No.7. Also heard Mr. B.N. Gogoi, learned Govt. Advocate appearing for the respondents 1 to Admittedly, the petitioner, Smt. Manjula Hoque, was adopted by Md. Amirul Hoque. She happened to be the daughter of his elder brother who died while Manjula was two months old and her mother predeceased him just at her birth time. Since then Majula was living with Amirul Hoque as his only daughter. 4. Amirul Hoque, a resident of Christianbasti, Guwahati, had two plots of land measuring 2 katha 15 lechas covering Dag No. 936, K.P Patta No. 32 and 1 katha 15 lechas covering Dag No. 935, K.P. Patta No Page 3 of 42

4 5. Both plots were contiguous situated on G.S. Road, Christian Basti, Guwahati. In 1 Katha 10 lecha, there was a big R.C.C. building measuring little less of 500 sq. ft which was originally used as residence of Amirul Hoque. Smt. Manjula was brought up there. 6. Respondent 7, Mustafa Shahidul Islam, a Member of Legislative Assembly (MLA), as he then was, married Manjula in the year He was also staying with Manjula at the residence of Amirul Hoque, father of Manjula. It is stated that soon thereafter, he started ill-behaving and torturing with Manjula and her parents to transfer entire landed property of Amirul Hoque in his name. While said proposal was not accepted, respondent No.7 implicated Amirul Hoque, in a false rape case. In the result, Amirul Hoque had to suffer in jail for forty-five days. 7. Thereafter, Amirul Hoque became ill. Ultimately he decided to gift out both plots of land in favour of petitioner and in 1989, he openly declared about gifting of both plots to his daughter only, as he was not even in a position to take effective step for transferring the aforesaid plot of land. 8. Upon accepting and taking possession of gifted lands, Manjula made formal petitions to the Settlement Officer for mutation. Accordingly, two mutation case No. 3424/92-93 and 3425/92-93 was registered and thereafter, records of Page 4 of 42

5 aforesaid cases were transferred to the Assistant Settlement Officer. 9. After considering Lat Mandal s report as to the petitioner s possession, the Assistant Settlement Officer vide order, dated , granted mutation to the petitioner in respect of both plots of land and thus aforesaid two plots of land of Amirul Hoque were transferred in the name of petitioner. Thus, she became a valid owner, title holder and possessor of both plots of land. Subsequently, Guwahati Municipality Corporation (GMC) holding and electricity connection were also transferred in her name and she has been paying the land revenue taxes. 10. In 2 katha 15 lechas of land, there were total fifteen tenants who were shopkeepers at the time of father of the petitioner. But after mutation being granted to the petitioner, they came to be under her tenancy. 11. In 1997, as decided, the petitioner and her husband along with their two minor children and the father of the petitioner came to MLA Hostel to live there. 12. The RCC building they lived in on 1 katha 10 lechas was divided into two parts. One part was let out to one Mrs. Gita Rani Ghosh, proprietress of M/s Ghosh Brother (P) Ltd. and the other part to one Mrs. Nivedita Baruah, proprietress of M/s Olivia Motors which was handed over to them by the petitioner Page 5 of 42

6 in August, 1997 in presence of her husband, respondent No.7, on monthly rental basis. She also signed two separate lease deeds in respect of both the tenants and since then, they possessed the land in question under the tenancy of the petitioner. 13. At the time of handing over the possession, the petitioner accepted some advance amounts from Mrs. Nivedita Baruah and also issued money receipt whereupon the respondent No.7, the husband of the petitioner put his signature as a witness. 14. After completion of interior decoration on , the petitioner signed two separate Lease Deeds in respect of both the tenants. Two affidavits were sworn by them recognizing the tenancy of the petitioner. Copy of the money receipt, two lease deeds and two affidavits aforementioned are annexed as Annexure-9, 10, 11, 12 and 13 to the writ petition 15. It is claimed by the petitioner that father of the petitioner prepared a Deed of Declaration in the form of Affidavit with regard to his gift, but respondent No.7 took away the same to destroy the evidence. 16. It is also alleged that respondent No.7 started frequent torture upon the father of the petitioner. Ultimately, he died on account of his heart attack at Neurological Hospital, Guwahati on Page 6 of 42

7 17. It is further stated that respondent No.7 then liked to take hold of gifted landed property of the petitioner and he also grabbed another plot belonged to one widow Mrs. Sujata Pathak who later recovered it from him. 18. Thereafter, respondent No. 7 has increased inhuman tortures upon the petitioner. She fled away from MLA Hostel and took shelter as guest in another house where she was advised to build a house in her own land. Accordingly, she built up a small type Assam house in a corner of the plot of 2 katha 15 lechas with her own money. From September, 1999 she has been staying at her said house with her children. 19. Subsequently, Respondent No.7 also went there along with his armed house guards who allegedly used them to detain the petitioner at that house. It is also alleged that Respondent No. 7 on broke open the door of the house of the petitioner in her absence, looted many valuables including land documents, bank pass book, many security deposit certificates etc. and also started staying there with one widow, namely, Mrs. Runa Begum. 20. In this connection, the petitioner lodged an FIR to the Officer In-charge, Dispur Police Station, Guwahati which was registered as Dispur P.S. Case No. 87/03 under Sections 454,380,427 IPC, (Annexure -14 to the writ petition). Page 7 of 42

8 21. One Kanakeswar Gogoi, respondent No.8, then came to show that a plot measuring 1 katha 10 lechas was sold to him by the father of the petitioner by a registered deed in 1984 and another plot of land measuring 2 katha 15 lechas was also sold to him by another registered sale deed in the year 1995 who sold the same to respondent No.7 in the year Thus, respondent No.7 claimed mutation striking out the name of the petitioner from the records of chitha/jamabandi. 22. During , the resettlement operation and survey was going on in the city, Guwahati and taking advantage of such situation, respondent 7 managed to record his name as provisional mutator in respect of both plots of land in the Chitha Book (Field Index) in place of petitioner and then claimed for formal mutation thereof. 23. It is contended that when the commission of fraud and cheating of the respondent No.7 and 8 were detected in the year 2000, the petitioner filed Title Suit No. 286 of 2000 before the learned Civil Judge (Senior Division) No.2 praying for decree for declaration that aforesaid sale deeds of the respondent No. 7 are illegal, inoperative and void and also for confirmation of possession. Respondent No.7 filed counterclaim praying for a decree for his right, title and interest in reference of same plots of land. The said suit is still pending. Page 8 of 42

9 24. During pendency of the suit, the petitioner also filed a misc. (J) case under order 30 Rule 1 & 2 of CPC for passing an ad-interim injunction that was allowed which was challenged by respondent No 7 before this Court vide MFA No 62 of While disposing the same, it was ordered to maintain status quo till finalization of the main suit. 25. However, respondent No.7 submitted a petition to the Assistant Settlement Officer, Guwahati for granting mutation in favour of him which was rejected by an order, dated Against the order dated , the respondent No.7 has preferred an appeal to the Settlement Officer which was registered as R.A. Case No. 9 of 2002 which was rejected by the Settlement Officer by order, dated , upholding the order of the Assistant Settlement Officer. 27. Being dissatisfied with the order of the Settlement Officer, respondent No.7 preferred another appeal before the Board of Revenue which was registered as R.A. 107(K)/2002. The said case was contested by the petitioner by filing two sets of written arguments contending, inter alia, that she is the recorded owner since The petitioner also submitted documentary evidence, affidavit sworn by all 17 tenants showing their possession under her tenancy since Page 9 of 42

10 28. It is submitted by the petitioner that in course of hearing of the appeal, the petitioner by filing a petition under Section 141 of Assam Land and Revenue Regulations prayed for recording the evidence of a number of witnesses on the point of her title and possession of the land as the Board is empowered to decide the issue in accordance with the Rule 24 of Board of Revenue Regulation Rule, 1963, but the Board rejected such petition without showing any reason. 29. During the pendency of the appeal, the Board called for para wise comments in reference to the appeal of respondent No.7 and the new Settlement Officer submitted his report on stating, inter alia, that after the death of Amirul Haque, his only daughter Smt. Manjula Hoque s name was mutated. Smt. Manjula s name was mutated in Mutation Case No. 3424/92-93 and 3425/92-93 on However, during the field survey under the resettlement operation, the name of Sri Sahidul Islam was also entered in the same Dag and Patta No. So both Sri Manjula Hoque and Sri Sahidul Islam s appeared in Dag No. 935 and 936 in KPP 305 and 32 respectively in But as a matter of fact, the name of Smt. Manjula Hoque was later struck out from the Dag No. 936 of KP 32 and the respondent No. 7 is in possession and his possession is continuous. Page 10 of 42

11 30. But it is the case of the petitioner that she is having three GMC holdings, 2 electricity connections, affidavits of all 17 tenants which show that the petitioner is in active possession over two plots of land- one measuring 1 katha 10 lecha and 2 katha 15 lechas except 2/3 lecha thereof wherein the respondent No.7 has been staying in an Assam Type House belonging to the petitioner since and the respondent No.8 never took over the possession of those plots of lands and acquired right to sell the lands in question. 31. It is further stated that the petitioner has filed a criminal complaint against the respondent No. 7 and 8 to the Officer In-charge, CID Police Station that was registered as CID P.S case No. 44 of 2002 under Sections 406/420/468/471/120-B IPC. 32. It is also alleged by the petitioner that though at the initial stage, the police was very serious in the process of investigation, but after few months, they went slow against respondent No.7. However, respondent No.8 published a news in a local Assamese daily, namely, AJI declaring that he neither purchased lands measuring 2 katha 15 lecha and 1 katha 10 lecha from Amirul Haque nor sold them to anyone. 33. The Board of Revenue of Assam ultimately allowed the appeal preferred by the respondent No 7 by setting aside the order of the Settlement Officer as noted above. Page 11 of 42

12 34. Being aggrieved by the judgment of the Board of Revenue, the petitioner has filed the instant writ petition. 35. It is the contention of the petitioner that as per provisions of Chapter VIII of Assam Land and Revenue Regulations and Board of Revenue Regulation Rule, 1963, the Board of Revenue has the power to adjudicate any revenue appellate dispute by way of properly framing the issues in dispute, taking evidence, examining the real situation, documents and records etc., but the learned members failed to act in accordance with aforesaid provisions, thus failed to appreciate the tenancy of the petitioner and also the mutation of the land in question granted to the petitioner for which the limitation period prescribed for two months. 36. It is also stated by the petitioner that Board of Revenue also did not consider whether the appellant satisfied the provisions of Chapter-IV, Part-B i.e. the Section 50 to 53 of Assam Board of Revenue Regulations or not while claiming mutation to be granted in favour of him when the records furnished to the Board clearly show that since 1993 till date, the entire estate is under active possession of the petitioner. 37. It is further stated that the Board of Revenue passed the impugned judgment on the basis of the report, dated , submitted by the Settlement Officer which was a fabricated one and distorted the real facts stating, inter alia, Page 12 of 42

13 that respondent No.7 has been in possession and his possession is continuous while the petitioner got her name mutated at the life time of her father in the year 1993 while her father died on , and the said mutation order dated in favour of the petitioner is protected by Section 153 of Chapter IX of Assam Land & Revenue Regulation, but the Settlement Officer recorded in his report that the father of the petitioner died in 1993 and thereafter, the name of the petitioner got mutated. The petitioner raised this point by submitting the written argument, but the Board of Revenue did not discuss the same, rather overlooked it, therefore, the impugned judgment is liable to be set aside and quashed. 38. Further contention of the petitioner is that for the first time, respondent No.7 raised an issue before the Board of Revenue alleging that mutation case No. 3424/92-93 was recorded in the name of one Bijoy Sharma and 3425/92-93 was recorded in the name of one Nripendra Nath Talukdar and the mutation cases as referred to by the petitioner are false. But the Board of Revenue, though prayed by the petitioner, did not call for the records or Register Book of , as the petitioner s mutation was made in the month of June, The Board of Revenue acted only on the report of the Settlement Officer that original case records of 3424/92-93 Page 13 of 42

14 and 3425/92-93 are missing and thus held that such registration numbers are false. 39. It is also contended by the petitioner that though the Board of Revenue consisted of two Members, but out of them, one Member heard the appeal preferred by the respondent No.7 and other Member was absent, but ultimately, the judgment was pronounced and signed by both the members of the Board of Revenue, for which the entire proceeding is liable to be quashed. 40. The petitioner also filed the additional affidavit contending inter alia, that the transfer of municipal holding in the name of petitioner was well aware to the respondent No. 7 as on numbers of occasion he deposited the municipal taxes on behalf of the petitioner which would be evident from Annexure 1 to 3 to the Additional affidavit filed by the petitioner and the tax receipt was signed by the respondent No.7 as depositor on and as the owner of the land, the petitioner leased out in two parts of 1 katta 10 leches to two tenants, namely, Smt. Nibedita Baruah and Smt. Gitarani Ghosh, which facts was admitted by the respondent No. 7 in his affidavit in opposition. 41. Respondent No. 4 has filed the counter affidavit to the writ petition stating, inter alia, that the mutation in Dag No. 935 and 936 was granted in favour of the petitioner, the Page 14 of 42

15 adopted daughter of pattadar by virtue of gift and possession by the then Asstt. Settlement Officer in Mutation case No. 3424/92-93 and 3425/92-93 on and during field survey under re-settlement operation, name of respondent No. 7 was mutated in the above Dags by virtue of purchase by the then Asstt. Settlement Officer. 42. It is further stated by the respondent No. 4 that as per records, the mutation in the name of respondent No.7 was granted on the basis of sale Deed No. 4043/98 and 3514/98 of Guwahati Sub-Register Office. The said Sale Deed showed that respondent No. 7 had purchased the aforesaid plots of land from respondent No It is also stated that as per link, Sale Deed No. 5445/84 and 299/95 of Sub Registry Office, Guwahati, the respondent No.8 appeared to have purchased the above plots from Md. Amirul Haque, father of the petitioner. 44. It is further stated by the respondent No.4 that as per draft chitha, the name of respondent No.7 was mutated in Dag No. 936(old), 2451(new) covered by K.P. Patta No. 32(old), 199(new) along with petitioner and in place of her Dag No. 935(old), 2452(new) covered by K.P. Patta No. 305(old), 30(new) of village Japorigog. Thus the name of the petitioner was struck off from Dag No. 935(old), 2452(new) and land records were corrected accordingly. It is also stated that the Page 15 of 42

16 dispute over the possession was still on and it changed time and again. But recently Smt. Manjula Islam has sold 1 katha 10 lechas land under Dag No. 935 of K.P. Patta No. 305 to Shri Pranab Kumar Ghosh vide Regd. Deed No dated At present both the purchasers are in possession. 45. Respondent No.7 also filed affidavit in opposition on denying all the allegations made by the petitioner. But he admitted that father of the petitioner was the original pattadar of the aforesaid two plots of lands and he married the petitioner and out of their wedlock, two children were born. But he denied his stay with the petitioner at petitioner s father s house. 46. Respondent No.7 further contended in his affidavit in opposition that the father of the petitioner by registered sale deed dated sold 1 Katta 10 lechas of land under Dag No. 935 of K.P Patta No. 305 to respondent No.8 which he sold to respondent No.7 by a sale deed dated He also contended that by another sale deed dated the father of the petitioner sold 2Katta 15 lechas of land under Dag No. 936 to respondent No.8 and later on respondent No.8 sold the same to the respondent No.7. Respondent No.7 thus became the owner of the entire land together with the house thereon. Thereafter, he applied for mutation, but as re-settlement Page 16 of 42

17 process was going on, the same could not be made. But he is paying the land revenue. 47. It is also contended by the respondent No. 7 that mutation does not confer title on anybody. Therefore, the petitioner by obtaining fraudulent mutation in the year 1993 cannot claim ownership over the land on the basis of the said mutation order in Mutation case No. 3424/92-93 and 3425/92-93 which was not instituted by the petitioner, but by other two separate persons. 48. The respondent No. 7 has filed another affidavit in opposition wherein he annexed the final report submitted in CID police station case. One Grindra Narayan Roy, CID Inspector of Police, CID P.S submitted the final report on stating, inter alia, that it is found to be correct that the accused Mustafa Shahidul Islam (respondent No.7) has purchased the land, there is no illegality or conspiracy or cheating in so purchasing the land. This case is an outcome of misunderstanding between both. 49. Mr. Kalita, learned Counsel appearing for the petitioner while urging for the relief sought for submits that admittedly the land in question for which mutation is sought for by the petitioner was the land of her father who orally gifted the said land to the petitioner and oral gift is valid under the provisions of Sections 147 to 150 of Mahammedan Law for which writing Page 17 of 42

18 is not necessary. In support of his contention, he relied upon two decisions of the Apex Court in Mahboob Sahar Vs. Syed Ismail and ors (1995) 3 SCC 693 and Ram Niwas Todi and another Vs. Bibi Jabrunnissa and ors, (1996) 6 SCC He further submits that admittedly the land in question was/is under the possession of the petitioner. He further urges that the order, dated , in original mutation proceedings being case No. 3424/92-93 and 3425/92-93 wherein the prayer for mutation was allowed by the Assistant Settlement Officer and the order of the Settlement Officer dated, , in R.A. No. 9 of 2002 affirming the order of the Assistant Settlement Officer is valid and reasonable. 51. He further submits that the story of selling of landed property in question by the father of the petitioner to the respondent No. 8 is nothing but an attempt of fraud on the part of the respondent No.7, as the respondent No. 8 himself made a declaration in a local paper AJI that he had never purchased the land at Dag No. 936 Patta No. 32 measuring 2 Katta 15 lechas and Dag No. 935 Patta No 305 measuring 1 Katta 10 lechas from the father of the petitioner at any time and he also did not sell the same to anybody and he is not answerable to anybody relating to that land which would be Page 18 of 42

19 evident from Annexure-6 to the affidavit in reply filed by the petitioner on before this Court. 52. He further contends that the respondent No.7 in his Memo of appeal stated that after two and half years of the death of the petitioner s father, he first time came to know about GMC mutation of the petitioner and consequent thereto, he applied for cancellation of the mutation of the petitioner. In fact, the respondent No.7 was not only aware about GMC mutation, but he himself acted as an agent of the petitioner to deposit the municipality tax in the year 1997, particularly, on which will be evident from Annexure-1 to the affidavit in reply filed by the petitioner and father of the petitioner died on , i.e. after the said deposit of the municipal tax by the respondent No It is also contended by the learned Counsel that in 1997 during the life time of the father of the petitioner, she became the owner of the land and house of her father and in that capacity, she divided the entire RCC building into two parts and let out one part to Mrs Nivedita Baruah, the proprietress of M/s Oliva Motors and Mrs. Gita Rani Ghosh, the proprietress of M/s Ghosh Brothers. The lease deed prepared for that purpose was signed by the respondent No. 7 as a witness and advance payment was also received by the petitioner in respect of such lease which would be evident from the Page 19 of 42

20 contention of wherein he respondent No.7 in para-10 of his affidavit admitted that contention of the petitioner in paragraph-8 of the writ petition, inter alia, that in August, 1997, the petitioner having divided her said RCC building at 1 Katta 10 lechas into two parts let out one part to one Mrs Gita Rani Ghosh, proprietress of M/s Ghosh Brothers and other part to one Mrs. Nivedita Baruah, the proprietress of M/s Oliva Motors on monthly rental basis. 54. The learned Counsel further submits that both the tenants took up their respective possession in the month of August, 1997 from the petitioner and they took about 6/7 months for interior decoration. At the time of handing over the possession, the petitioner accepted some advance amounts from Mrs Nivedita Baruah against issuance of money receipt, and in the money receipt, the respondent No. 7, the husband of the petitioner also signed as one of the witness. Thus, he knew well in 1997 that the petitioner was the owner of such plots of land. Therefore, the claim of the respondent No.7 that he was not aware regarding transfer of land to the petitioner by her father is totally unacceptable. 55. He also submits that in view of Section 148 of the Assam Land and Revenue Regulation, the order dated has to be challenged within two months from the date of such order, but it was not done by the respondent Page 20 of 42

21 No.7 and at that relevant time, he was admittedly not the owner of the land as alleged by him, far to question of title over the land. 56. He further urges, even if for the argument sake accepted the contention of the respondent No.7 that he purchased the land from respondent No.8, who allegedly purchased the land in question from the father of the petitioner in his life time and the said respondent No.8 again sold the land to the respondent No.7 in the year 1998, then also he is not entitled to get mutation as on , as the petitioner has become owner of the land in question and the same has already been mutated in her name which the respondent No.8 never challenged and he also not challenged the aforesaid contention of the petitioner in the instant writ petition by way of filing any counter. 57. Against the decision of the Revenue Board, learned Counsel also submits that mere Sale Deed is not enough for getting mutation. Acquiring possession over the land alleged to have been purchased is a sine qua non for getting mutation as per Section 50 of the Assam Land Revenue and Regulation and admittedly the respondent No.7 did not acquire the possession over the land measuring 1 katta 10 lechas which would be evident from paragraph-10 of the affidavit in opposition wherein he admitted the contention of the Page 21 of 42

22 petitioner in paragraph-8 of the writ petition and admittedly till date the position stands in favour of the writ petitioner. 58. Learned Counsel further submits that the Board of Revenue failed to take note all those facts though the petitioner made an application before it for taking evidence. Learned Counsel would contend that the petitioner lived with the respondent No.7 along with her father since 1993 to till August, 1998, and between this time admittedly the respondent No.7 deposited the municipal tax with the Gauhati Municipal Corporation on behalf of the petitioner as her agent and since 1993 to 1998, August, the respondent No.7 never raised his voice for cancellation of mutation granted in favour of the petitioner. 59. He further submits that order of mutation passed in favour of the petitioner cannot be challenged after long eight years without becoming aggrieved party on the date of cause of action. Thus the challenge of the respondent No.7 to the granting of mutation in favour of the petitioner is barred by law of limitation as prescribed in Section 148 of the Assam land and Revenue Regulation. 60. Learned Counsel also contends that the Board of Revenue though constituted by the appropriate authority with two members but only one learned member heard the appeal proceedings in absence of other learned member and on that Page 22 of 42

23 aspect, a specific contention has been made in the writ petition and learned Govt. Advocate even on direction given by this Court is not in a position to produce the proceedings of the revenue appeal wherein the impugned order has been passed for which it can be presumed that the contention of the petitioner is correct. 61. He further contended that the father of the petitioner was the original recorded pattadar of the land in question but as per the reports and documents available, if accepted, it also appears that the father of the petitioner sold the land to respondent No. 8, (the respondent No.5 therein), and the respondent No.7, (the appellant therein), purchased the said land from the respondent No.8 by registered sale deed but the respondent No.8 has got no mutation over the land, the name of the petitioner (respondent No.1 therein) who is stated to be only daughter of Amirul Hoque, the original pattadar, has been mutated in respect of the land in question on , that also before the death of the father of the petitioner vide mutation case No. 3424/92-93 and 3425/92-93 which is challenged by the respondent No.7 herein. 62. Learned counsel also submits that the respondent No. 7 has no right to ask for mutation and consequent thereto, the Board of Revenue has no power to set aside the order of mutation passed in favour of the petitioner as the alleged Sale Page 23 of 42

24 Deed was allegedly executed by the respondent No. 8 without obtaining mandatory sale permission from the District Revenue Authority as well as Guwahati Municipal Corporation, which is at present Guwahati Metropolitan Development Authority under Section 32 of the GMDA Act. 63. His further contention is that the Board of Revenue failed to appreciate the factual and legal position so far the order of mutation dated is concerned as on that date or thereafter if anybody is aggrieved by the said order that was the father of the petitioner who was alive upto i.e. about nine years from the date of oral gift and five years from the date of mutation of the land in the name of the petitioner and the respondent No.7 never raised his voice during the life time of the father of the petitioner questioning the mutation of the land in her name and admittedly on the date of order of mutation, the respondent No.7 had no relation with the land in question. He was completely stranger and even if for the argument sake, it is admitted that the respondent No.8 might have some grievances in respect of land measuring 1 katta 10 lechas as he was allegedly to have been purchased such plot of land in the year 1984, but the said respondent No. 8 did never challenge either the oral gift made by the father of the petitioner to her and consequent thereto, the title over the Page 24 of 42

25 land or the order of mutation which was passed in favour of the petitioner in the year The Board of Revenue also failed to consider all those aspects, the learned Counsel submits. 64. His another contention is that that though the order of mutation was passed in favour of the petitioner on but the Register of the cases maintained by the Settlement Officer from the period from to could be placed and the Settlement Officer specifically stated in his comments that the records relating to two relevant cases wherein the order dated was passed are missing, The learned Revenue Board did not consider those aspects and the points which was not taken before the Assistant Settlement Officer and the Settlement Officer by the respondent No. 7 raised before the appellate Court for the first time and the appellate court, the Board of Revenue considering those points passed the impugned order which is wholly unsustainable under the law. 65. The authority who filed the final report in the CID case as annexed by the respondent No.7 with his affidavit in opposition cannot also be treated as a document of proving the status of sale deed or right of the petitioner for the land on the basis of mutation as ordered by the appropriate authority, the learned Counsel further submits. Page 25 of 42

26 66. He also submits that the civil suit T.S. No. 286 of 2000 is pending before the learned Civil Judge, No. 2 since 2000 as filed by the petitioner claiming declaration of her right, title and interest over the land in question and confirm of possession. 67. He finally submits that mutation proceeding, title of the land cannot be decided being the same is only for the purpose of collection of revenue on consideration of the possession over the land. Thus it would be proper for this Court to affirm the order dated passed by the Assistant Settlement Officer in mutation case No. 3424/92-93 and 3425/92-93 and the order dated passed by the ASO in Misc. Case No. 29 of 2000 and the order dated passed by the learned Settlement Officer in R.A. 9 of 2002 by setting aside the order dated passed by the Board of Revenue in 107 RA (K)/ He also refers to the decision in Nar Bahadur Gurung and ors Vs. Anil Krishna Bhattacharya and ors, AIR 1957 Manipur 25, the Judicial Commissioner s Court, while deciding an appeal preferred against the judgment and decree of the District Judge, Manipur in Civil Suit No. 4 of 1955 dismissing the plaintiff s claim for declaration in respect of about 70 paris (about 175 acres) of land situated at Pangei village, dealt with Sections 40,50(a) and 53 of the Assam Land Revenue Page 26 of 42

27 and Regulation and noted that a person who claiming to be the landlord gives notice to a tenant terminating his tenancy expressly recognizes that he is a tenant and in the event of a suit for ejectment being filed the tenant always has the right to show that the plaintiff is not the landlord. Wrong mutation cannot, therefore, give the plaintiffs a right to claim a declaration under S. 42 of the Specific Relief Act. 69. From the aforesaid finding, it cannot be said that even when a person purchased a land which is not within the possession of the seller at the relevant time and the purchaser did never take possession and even formal possession is also not delivered at the time of sale, mutation cannot be sanctioned in favour of the purchaser. When the person having the possession over the land do not claim to be pattadar of the land, wrong mutation in favour of the purchaser does not in any way affect their legal character or right to any property. 70. But in the instant case, it is admitted position that the land was mutated earlier in favour of the petitioner on the basis of her possession over the land, even if this Court considered that the Revenue authority passed the order of mutation wrongly in favour of the petitioner, then also such order of mutation may entitled the petitioner to get a declaration of title over the land subject to she established Page 27 of 42

28 that land in question has been transferred in her favour by the original pattadar by way of adducing evidence as the Civil Court has also the power to cancel the mutation after taking evidence in a suit where the mutation is also challenged. 71. In the instant case, when the name of the petitioner was struck out from the revenue record, no notice was issued in favour of her as required under Section 116 of the Assam Land and Revenue Regulation, In Paramesh Sarmah and ors Vs. Islam Ali and ors, (2002) 3 GLR 1, a coordinate Bench of this Court while dealing with the provisions of Sections 40 and 53 of the Assam Land and Revenue Regulation noted that Section 40 of the Assam Land and Revenue Regulation provides records of rights. The Settlement Officers has to frame for each estate a record of right in the prescribed manner. The record of rights is the Jamabandi based on the Chitha and Fieldmap. Entry in the record of rights is to be founded on the basis of actual possession. Undoubtedly at the time of settlement the Jamabandi is prepared which records the name of the pattadar on the basis of possession (see AIR 1967 Assam and Nagaland 9 Abdul Hasen and others vs. Haji Mahiuddin and ors). Section 4(1) (2) read with Section 53 of the Assam Land and Revenue Regulation raises a presumption regarding possession in Page 28 of 42

29 favour of recorded pattadar unless rebutted (See 1952 Assam 34, 40, 41 Pratap Chandra Sarma V. Abannth Sarma). 73. Mr. Shiladitya Datta, learned Counsel for the respondent No.7 while placing reliance on the Sale deed executed between the respondent 8 and respondent No. 7 would contend that the Board of Revenue passed the impugned order very rightly holding that the order of the ASO and SO are contrary to the records as available. 74. He further submits that admittedly the petitioner and the respondent No.7 were married and lived together till 1998, but thereafter separated. He also contended that for the land in question, the name of the petitioner was recorded in the municipal holding but the electricity connection is still in the name of her deceased father. 75. His further contention is that that the respondent No.7 is paying the land revenue relating to the land in question. Learned Counsel also denied the contention of Mr. Kalita inter alia that the petitioner is the recorded owner of the land since According to him, the petitioner by way of fraud obtained mutation order from the revenue Authority. 76. He further contended that admittedly there is a civil suit filed by the petitioner which is still pending and this court also stayed the impugned order vide its order dated Page 29 of 42

30 77. He further contended that mere non-mutation by the respondent No. 8 would not itself entitled the petitioner to get mutation for the land in question when the respondent No.8 purchased the said land admittedly prior to and he finally contended that the petitioner made allegation against the learned Members of the Board of Revenue but none of them are personally made party in the instant proceeding. 78. He also urges that Jamabandi was prepared at the time of settlement and name of the pattadar recorded on the basis of possession. In the instant case, at the time of resettlement operation, the respondent No.7 was found in possession on the basis of Sale deed executed by the respondent No. 8 and his name was provisionally mutated, though his claim for mutation initially rejected by the ASO and SO, but subsequently allowed by the appellate authority by passing impugned judgment. He also submits that wrong mutation cannot entitle the petitioner to claim title over the land in question. 79. Mr. Gogoi, learned Govt. Advocate appearing for the respondent No.1 to 5 fairly submits that even after full attempt on his part, he could not collect the record of the Board of Revenue i.e. the Appellate Court proceedings and admittedly the Settlement Officer in parawise comments furnished before the Board of Revenue stated that the record Page 30 of 42

31 relating to the order of mutation passed by the ASO in favour of the petitioner is missing and it is also admitted position that the respondent No.8 did not apply for mutation before the appropriate authority, even after his purchase. 80. Mr. Gogoi further contended that the mutation in the name of the respondent No.7 was granted on the basis of sale deed No and 3514 of Gauhati Sub-Registrar Office as executed by the respondent No.8, he finally contended that admittedly the respondent 1,2,3 and 5 have not filed their respective counter-affidavit denying the allegations of the writ petitioner. Hence, the Court may pass any order appropriate in accordance with law. 81. In the instant case, questions arise for decisions are as follows: (1) Whether on the date of order of mutation in favour of the petitioner, the respondent No. 7 had/have any cause of right to challenge the order of mutation granted in favour of petitioner; (2) Whether the order of the Board of Revenue is hit by the provisions of Section 148 of the Assam Land and Revenue Regulations? (3) Whether the impugned order is also sustainable due to non-production of relevant Register wherein the relevant order dated was passed by the ASO in favour of the petitioner? 82. Before dealing with the submission of the learned Counsel of the parties, it would be proper for the Court to Page 31 of 42

32 discuss about the order passed by the learned Assistant Settlement Officer, Guwahati in Case No. 3424/92-93 and 3425/92-93 (Annexure-1 and 2 to the writ petition respectively), wherein it is specifically stated that the case was registered on the application of the petitioner for mutation of the land of 2katta 15 lechas and 1katta 10 lechas under Dag No. 936, K.P patta No. 32 and Dag No. 935, K.P patta No. 305 respectively in Japorigog, Mouza- Beltola on the basis of gift and possession and on perusal of the report of the process server stating that notice on behalf of both sides received by the applicant. ASO also has perused the report of the Lat Mandal, copy of Jamabandi and Gift Deed and considering that the petitioner is the only daughter of the registered Pattadar, Amirul Hoque and as there is no other child of the pattadar other than the petitioner and no dispute regarding the possession of the land, mutation was allowed in the name of the petitioner regarding the aforesaid plots of land of Amirul Hoque and such order was not admittedly challenged before 2002 by the respondent No.7 and there is limitation prescribed for making a prayer for cancellation of the mutation under Section 148 of the Assam Land and Revenue Regulation which is not admittedly made neither by respondent No.7 nor respondent No.8. Page 32 of 42

33 83. Respondent No.8 by a statement in a local daily, AJI, inter alia, stated that he has not purchased the land in question from the original pattadar, Amirul Haque, the father of the petitioner, and also did not sell the said land to anybody as well as he is also not answerable so far as the said land is concerned. The said publication is not denied by the respondent No.7. Therefore a doubt has been created regarding the said sale in the mind of this court. But a writ court cannot decide whether a sale deed is a genuine one or not. The appropriate forum is the civil court and so far as the land in dispute is concerned, there is a civil case pending before the Civil Judge, Senior Division, No. 2, Kamrup, Guwahati. Thus it would not be proper to make any comment regarding the said sale deed. 84. As the question in this case is the mutation which was ordered in favour of the petitioner and subsequently on the basis of the prayer of the respondent No.7, the same was cancelled. Therefore, it would be proper for this court to restrain itself within the question of limitation. 85. Mutation is nothing but record of rights which is to be founded on the basis of actual possession. In the instant case, it is evident from the affidavit in opposition of the respondent No.4, the Settlement Officer, that the petitioner was granted mutation in Misc. Case No. 3424/92-93 and Page 33 of 42

34 3425/92-93 on and she has subsequently sold a plot of land measuring 1 katha 10 lechas to one Pranab Kumar Ghosh under Dag No. 935, K.P. Patta No. 305 by a sale deed No on who is now in possession. 86. In case of Abdul Hasem and ors Vs. Haji Mahiuddin and ors, AIR 1967 Assam and Nagaland 9, a Division Bench of this Court headed by Mr. Justice G. Mehrotra, Chief Justice the then, while dealing with a dispute relating to joint landed property discussed regarding Jamabandi and stated that entries in the record-of-rights are to be founded on the basis of actual possession. Undoubtedly at the time of settlement, the jamabandi is prepared which records the name of the pattadars on the basis of possession. But in respect of the annual patta the entry is bound to change from year to year. It is also noted that when the land is an annual patta land, the settlement entry of cannot be conclusive proof of the fact that all along the patta was in the name of Mahiuddin. 87. In Sukumari Dev & ors Vs. On the death of Manindra Ch. Dev, his legal heirs Madan Dev and ors, (1991) 1 GLR 236, a coordinate Bench discussed about the provisions of Section 154 (1)(c) of the Assam Land and Revenue Regulation, 1886 as well as Section 62 of the said Regulation and held that civil court is the best authority to decide the title over property to any person and can also Page 34 of 42

35 direct cancellation of mutation in the revenue record and that Section 154 of the Assam Land and Revenue Regulation, 1886 is not a bar for issuing such a direction for cancellation. It is further held that entry in the revenue record does not confer any title on any person and at best it a piece of evidence. 88. In Dayal Hari Paul & ors Vs. Pradip Kumar Lahkar & ors, 2006 (3) GLT 680, a coordinate Bench of this Court while dealing with the provisions of Section 50 of Assam Land and Revenue Regulation, 1886, held that order of mutation is only to facilitate payment of land revenue and the Revenue Court is not entitled to decide the title in respect of landed property which is the subject matter of Civil Court. The Apex Court also in various decisions held that the order of mutation does not confer any title. (See Smt. Sawarni Vs. Smt. Inder Kaur and ors, 1996(6) SCC Before cancellation of the mutation of the land as recorded in favour of the petitioner, the Revenue Board should have consulted the Municipal record and the statement of witnesses and when admittedly the respondent No. 8 did not get the possession of land in question before sale of the land in question to respondent No.7, the duty of the learned Revenue Board was to examine the witnesses and also to consider the enquiry report relating to the possession over the land in question. Page 35 of 42

36 90. It also appears from record that the dispute over possession was still on and it was challenged time and again. It cannot be said that at the relevant time of mutation in the year 1993, neither the respondent No.7 nor the respondent No. 8 was in possession and being possession is the sine qua non for mutation of record of right, according to this Court, the Assistant Settlement Officer on proper enquiry of the Lat Mandal report rightly mutated the land in favour of the petitioner. 91. As the respondent No.8 by way of paper statement made it clear that in no way he is involved with the land in question as he neither purchased the said land from the original pattadar, the father of the petitioner nor sold the same to the respondent No.7, therefore, his possession over the land in question does not arise at all. And when the respondent No.8 was not in possession, admittedly, at the time of execution of the alleged sale deed in favour of the respondent No.7 and thereafter till 2002, the respondent No.7 was also not in possession, particularly, when he himself deposited the municipal taxes in the name of the petitioner with the GMDA, then it can be easily held by this Court that the Respondent No.7 was aware about the oral gift as well as order of mutation in the year 1993 and subsequent recording the municipal holding in favour of the petitioner as he himself Page 36 of 42

37 deposited the amount with the GNDA in favour of the petitioner. The contention of the petitioner to that aspect has also not been reverted by the respondent No This Court is also further opinion that the investigating authority of the case filed by the petitioner in the CID police station is not authorized to decide regarding the genuineness of the sale deed executed allegedly in favour of the respondent No.7 by the respondent No.8 and also relating to the possession over the land, as that was not subject matter of that case. 93. In Mahboob Sahab (supra), the Apex Court considered the essential requirement so far as the validity of a gift under the provisions of Mohammedan law and said that it is essential to the validity of a gift that the donor should divest himself completely of all ownership and dominion over the subject of the gift as required under Section 148 and also said that under Section 147 of the Principles of Mahomedan Law by Mulla, 19 th Edn. Edited by Chief Justice M. Hidayatulla, envisages that writing is not essential to the validity of a gift either of moveable or of immovable property. The Apex Court also held that it would, thus, be clear that though gift by a Mohammedan is not required to be in writing and consequently need not be registered under the Registration Act; for a gift to be complete, there should be a declaration of Page 37 of 42

38 the gift by the donor; acceptance of the gift, expressed or implied, by or on behalf of the donee, and delivery of possession of the property, the subject-matter of the gift by the donor to the donee. The donee should take delivery of the possession of that property either actually or constructively. On proof of these essential conditions, the gift becomes complete and valid. In case of immovable property in the possession of the donor, he should completely divest himself physically of the subject of the gift. No evidence has been adduced to establish declaration of the gift, acceptance of the gift by or on behalf of the minor or delivery of possession or taking possession or who had accepted the gift actually or constructively. 94. In the instant case, it is the admitted position that the original pattadar/ donor Amirul Haque never raised his voice regarding mutation of the land in favour of the petitioner during his life time and it is also admitted position that the donee petitioner had also taken possession of the land in question in the life time of donor and entered with an agreement with the tenants of the donor in his life time in which the respondent No.7 was admittedly an witness. Therefore, it cannot be said that the land in question was not gifted with the petitioner donee by her father donor. Page 38 of 42