Begum Nasima Ahmed vs Assam Board Of Revenue And Anr

Heard Mr. A. Ikbal, learned counsel appearing for the writ petitioner. I have also heard Ms. N. Bordoloi, learned Standing Counsel, Assam Board of Revenue, appearing for the respondent No.1 as well as Mrs. M. Hazarika, learned senior counsel assisted by Mr. M. K. Borah, learned counsel representing the respondent No.2.

This writ petition has been preferred against the judgment and order dated 05.09.2018 passed by the Assam Board of Revenue, Guwahati in Case No.76RA(k)/2017 allowing the appeal preferred by the respondent No.2 thereby setting aside the order of mutation earlier granted in favour of the writ petitioner. The respondent No.2/appellant had made a claim before the Board of Revenue that the plot of land measuring 2 Bigha 3 Kathas covered by Dag No.215(Old)/700 (New) of Patta No.44/214/215 (old)/362/422 (new) of village Khanapara, Lat No.II under Mouza - Beltola falling in the Dispur Revenue Circle originally belonged to her father Late Fakira Kachari who had expired on 02.02.1969 leaving behind the respondent No.2/appellant and her mother Smti. Puwali Bala Garo as the surviving legal heirs. After the death of Puwali Bala Garo, the respondent No.2 had applied for mutation of her name over the said plot of land whereafter, it transpired that the names of the writ petitioner and Dr. Thaneswar Baruah were already recorded in respect of a part of the said land. When the application for cancellation of the mutation granted in favour of the writ petitioner and Dr. Thaneswar Baruah was rejected by the learned Additional Deputy Commissioner, Kamrup(M) vide order dated 17.11.2017 passed in connection with KRC(M)/975/213, the respondent No.2 as appellant had approached the Assam Board of Revenue by filing the aforementioned appeal.

By the impugned order dated 05.09.2018, the prayer made by the respondent No.2/appellant for cancellation of mutation was allowed by the learned Board of Revenue inter-alia on the ground that there is no evidence to support the order of mutation granted in favour of the writ petitioner and Dr. Karabi Baruah i.e. the daughter of Dr. Thaneswar Baruah who were impleaded as respondent Nos.3 and 4 in that appeal. The operative part of the impugned judgment and order is reproduced herein below for ready reference :-

"The respondents No.3, 4 and 5 have also failed to substantiate their claims that they have purchased the land in question from Minia Roy, the recorded pattadar by producing relevant documentary evidence as to how and on what basis Minia Roy became the pattadar of the land in question and she sold the land to them. It is also seen from the jamabandi of the land in question that Minia Roy's name was mutated along with recorded pattadar Fakira Kachari. There is no evidence on record to show how and on what basis the name of Minia Roy was mutated along with pattadar Fakira Kachari in respect of the land in question. It is also seen that the name of respondent No.4 Thaneswar Barua was recorded along with the pattadar on the basis of partition; but there is also no evidence on record as to on what basis and vide whose order the partition was made and his name was recorded. The respondent No.4 has also failed to produce any reliable documentary evidence in his support. Further, it is also seen that the name of respondent No.3 Nasima Ahmed was mutated on the basis of purchase only without having possession over the land in question. But to get mutation, there must be title and possession over the said land at the time of mutation. The name of Dr. Karabi Baruah, respondent No.5 was made on the basis of gift by her father Thaneswar Baruah, but it is not evident on record as to how Thaneswar Baruah's name was recorded. Hence, these raise some question of doubt as to the legality and validity of the mutations of the private respondents over the land in question.

In view of the above legal position in hand we are of the considered view that the mutation in the name of Minia Roy (respondent No.6), Begum Nasima Ahmed (respondent No.3) Dr. Thaneswar Baruah (respondent No.4), Dr. Karabi Barua (respondent No.5) and Haranath Das (respondent No.7) are not in accordance with the prescribed provisions of law of the Assam Land and Revenue Regulation and are liable to be set aside. Hence the said mutation of the respondent Nos.3, 4, 5, 6 and 7 over the land in question are hereby set aside.

Accordingly, the impugned order dated 17/11/2017 is not in accordance with law and liable to be set aside. Hence, the appeal has sufficient force."

By referring to the materials brought on record Mr. Ikbal submits that the petitioner is not only holding a registered deed of sale but even a patta has been issued in her favour by the competent authority. Mr. Ikbal has also invited the attention of this Court to the order dated 19.06.1974 passed by the learned Circle Officer, Kamrup at Guwahati granting mutation over a plot of land measuring 1Bigha 10 Lechas covered by Dag No.215 comprised in K.P. Patta No.44 of village- Khanapara under Beltola Mouza in favour of his client. Under the circumstances, the learned counsel for the petitioner submits that the judgment and order passed by the learned Board of Revenue is wholly unsustainable in the eye of law and deserves to be set aside.

Mrs. Hazarika, learned senior counsel appearing for the respondent No.2, on the other hand, contends that the claim of her client pertains to land covered by K.P. Patta No.48 of village-Khanapara under Beltola Mouza but the petitioner is illegally occupying the said plot of land which belongs to the respondent No.2. Mrs. Hazarika further submits that the predecessor-in-interest of the respondent No.2 had never transferred any land by way of sale to the Smti. Minia Roy, who was a raiyot under Fakira Kachari, and therefore, Minia Roy does not have any marketable title so as to transfer the land in favour of the petitioner by executing a registered deed of sale. It is also the submission of the learned senior counsel that the writ petitioner had never produced the sale deed or the patta before the learned Board of Revenue, Assam and hence, she cannot be permitted to rely upon those documents at this belated stage.

I have considered the submissions advanced by learned counsel for the parties and have perused the materials available on record.

It appears from the materials on record that the petitioner had purchased a plot of land measuring 1 Bigha 10 Lechas covered by Dag No.215 of K.P. Patta No.44 falling under village Khanapara, mouza-Beltola in the district of Kamrup, Assam by means of a registered deed of sale bearing No.2051 dated 01.03.1973 executed by Smti. Minia Roy. Accordingly, by the order dated 19.06.1974, mutation was also granted by the Circle Officer in favour of the petitioner in respect of the said plot of land. Materials available on record further goes to prima-facie indicate that a patta had also been issued in favour of the writ petitioner. Therefore, there are sufficient materials on record to prima-facie establish the title of the writ petitioner over the aforesaid plot of land. As such, I am of the view that unless such document of title is set aside by a competent civil court, the petitioner cannot be denuded of her right to occupy the plot of land in question. Moreover, the competent forum to go into the question of right, title and interest over immovable property is the civil court and hence, any question touching upon the title of the parties cannot be adjudicated in a revenue proceeding. Such being the position, I am unable to agree with the conclusion drawn up by the learned Board of Revenue whereby the mutation granted in favour of the writ petitioner has been cancelled. Consequently, the impugned judgment and order dated 05.09.2018 is held to be unsustainable in law and hereby set aside.

At this stage, the learned senior counsel for the respondent No.2 submits that since there is also a dispute as regards the true identity of the land under possession of the writ petitioner, her client be granted leave to approach the revenue authorities seeking demarcation of the land for the purpose of removing any doubt as to the identity of the land. The prayer made by the learned senior counsel appears to be reasonable and therefore, is hereby allowed.

It is also made clear that notwithstanding the judgment and order passed by this Court in the present proceeding, it would be open to both the parties to approach the civil court, if so advised, in the event any bonafide dispute arises as regards the right, title and interest of the parties over the disputed plot of land.

The writ petition is accordingly disposed of.