DIGANTA DAS and ORS. vs THE SUB-DIVISIONAL OFFICERC, RANGIA and ORS.

Heard Mr. G.P. Bhowmik, learned Sr. counsel for the petitioners. Also heard Ms. M. Bhattacharjee, learned Addl. Sr. Govt. Advocate, Assam

appearing for the official respondent. None appears for the private respondents despite the name of the learned counsel having been reflected in

the cause list. This matter was taken up for hearing on 09-01-2018 and 11- 01-2018 and on both the occasions, the hearing of this case was

adjourned due to nonavailability of the learned counsel for the private respondents. Today also when the matter is taken up, Mr. Bhowmik submits

that despite giving proper intimation about this case, the learned counsel for the private respondents has not shown any interest to come and argue

in this case. Under the circumstances, this Court is left with no other option but to proceed with the matter.

The dispute in this case relates to prayer for perfect partition of an ancestral plot of land belonging to the petitioners and the private respondents.

It appears from the record that the respondent No. 3 had earlier filed an application seeking ""perfect partition"" of the ancestral land belonging to

both the parties. The land is covered by two separate K.P. Patta Nos. 74 and 636 of Rangia Town, Panduri Mouza under Rangia Revenue Circle.

By the order dated 21-08-1997, the learned Sub-Divisional Officer (Civil), Rangia had allowed the prayer for perfect partition made by the

respondent No. 3.

Aggrieved by the order dated 21-08-1997, the writ petitioners had filed an appeal being Case No. 98 RA(K)/2005 before the Assam Board of

Revenue, which was dismissed by the judgment and order dated 01-09-2011 thereby upholding the order dated 21-08-1997 passed by the

SDO(C), Rangia. Assailing the judgment and order dated 01-09-2011, the petitioners are before this Court by filing the present writ petition.

Mr. Bhowmik, learned Sr. counsel submits that there is a serious dispute regarding title and possession in respect of the ancestral land inasmuch

as the writ petitioners have stoutly denied the possession of the respondent No. 3 over the portion of the land claimed by him. Under the

circumstances, the prayer for perfect partition of the land could not have been granted in favour of the respondent No. 3 in view of the specific

provision of Section 97 of the Assam Land and Revenue Regulation, 1886 (hereinafter referred to as the Regulation of 1886). The learned Sr.

counsel further submits that the land pertaining to two separate patta cannot be partitioned in one proceeding, since such a recourse is

impermissible under the Regulation of 1886. That apart, submits Mr. Bhowmik, there is a civil suit in the form of Title Suit No. 79/2007 instituted

by the respondent No. 3 against the petitioners in the Court of Civil Judge (Sr. Div.) No. 1, Kamrup, Guwahati and the suit having been dismissed,

the appeal preferred by the respondent No. 3 is pending before the First Appellate Court. The prayer in the suit pertains to declaration, partition

and separate possession of the suit land. Under the circumstances, submits Mr. Bhowmik, the order dated 21-08-1997, as affirmed by the

impugned judgment and order dated 01-09-2011 passed by the learned Board of Revenue cannot be implemented during the pendency of the civil

proceeding.

Ms. M. Bhattacharjee, learned Govt. Advocate submits that save and except what is available from the record, she does not have any further

submission to make in the matter.

Section 100 of the Regulation of 1886 clearly provides that when there is objection on the question of title which has not been determined by

the Civil Court, the Deputy Commissioner shall be guided by the order that is passed by the Civil Court in the suit. Materials on record, prima

facie, goes to indicate that there is a civil proceeding pending between the parties covering the same plot of land where the question of title and

other consequential reliefs are pending consideration by the competent Civil Court. There is nothing on record to show that the civil suit has been

finally decided in favour of the respondent No. 3. If that be so, in view of the provision contained in Section 100 of the Regulation of 1886, the

order dated 21-08-1997, in the opinion of this Court, cannot be implemented so as to create or extinguish any right, title or interest of either party

over the disputed land. In other words, the question of perfect partition of the suit land would now be governed by a decree of the Civil Court

since there is dispute amongst the parties regarding the claim of possession over the land in question.

Such being the position, this writ petition is closed by observing that the prayer for perfect partition of the disputed land would now be decided

on the basis of the decree that may be passed by the Civil Court. Consequently, the order dated 21-08-1997 is held to be in operable in the eye

of law. The writ petition is accordingly disposed of. There would be no order as to cost. Send back the LCR.