Md. Maina Mia and Others vs Asak Ali and Others

B.K. Lahiri, A.C.J.

This is an application under Article 226 of the Constitution of India directed against the order dated 13.12.83 passed by the Assam Board of Revenue in Caw No. 204 RA (C)/82 upholding order dated 17.7.82 passed by the Addl. Deputy Commissioner, Cachar, Silchar in Perfect Partition Case No. 16 of 1980-81 confirming the order allowing partition made by the Sub-Divisional Officer, Silchar.

The Respondents filed a petition for partition of their share measuring 52 Bighas 1 Kahta 14 Chattacks in R.S. Patta No. 18 of Mouza Kaptanpur part VIII under Sonai Circle. The partition case was initiated under the provisions of the Assam Land and Revenue Regulations 1886. A report was called for from the concerned Sub-Deputy Collector and thereafter notice were issued to the pattadars. Some of them including the present Petitioners filed objections contending that the Respondents had no title and possession over the land sought to be partitioned. However, some co-pattadars supported the claim of the Respondents. Upon hearing the parties, the learned Sub-Divisional officer by his order dated, 17.6.82 granted the prayer for partition. There were as many as 126 ajmali pattadars or co-pattadars in respect of 346 Bighas 6 Kathas of land covered by concerned R.S. Patta No. 18. The Respondents being joint pattadars or co-pattadars claimed perfect partition in respect of only 52 Bighas 1 Khatha 14 Chattacks of land out of the entire area covered by the patta. The order of the S.D.O. was confirmed by the Addl. Deputy Commissioner. The Petitioners appealed before the Board of Revenue. The appeal has been dismissed. Being aggrieved by the impugned orders the Petitioners have filed this writ application.

Mr. S. Ali, learned Counsel for the Petitioners submits that no sooner an objection is preferred u/s 100 of the Assam Laud and Revenue Regulation questioning the title of the applicants in a perfect partition proceeding the Revenue Officer is incompetent to proceed on with the case and he is competent only to stay the proceeding for such time as in his opinion is sufficient to admit a suit being instituted in the Civil Court to try the objection. The learned Counsel submits that in the instant case the Revenue Officer had no alternative but to stay the proceeding when the Petitioners had raised the question of title, the Revenue Officer should have allowed the Petitioners sufficient time to institute suit in the Civil Court to obtain necessary order. The point was taken before the Assam Board of Revenue and the learned Board has given cogent reasons as to why the provisions of Section 100 of the Regulation were not applicable in the case. The Board of Revenue has rightly held that the Respondents, the co-pattadars of ejmali patta holders having had right, title and possession of the land were legally entitled to ask for partition. Mr. S. Ali, learned Counsel for the Petitioners does not dispute that the Respondents were co-pattadars in respect of the land covered by R.S. Patta No. 18. Section 97 of the Regulation provides qualifications of the persons who can ask for partition. Every recorded proprietor and every recorded landholders if he is in actual possession of the estate, in respect of which he desires partition, may claim partition of the estate, in the instant case there is no wrangle at the bar that the Respondents were the recored pattadars. No registration or mutation in favour of a person can be granted unless he has title and possession. To enable a person to become a pattadar or co-pattadar, the person must get the necessary registration in the record of rights and unless he establishes that he had succeeded to the property and is in possession thereof, he cannot be a recorded pattadar. There is no dispute that in absence of title and possession, no registration or mutation can be made. Therefore when the Respondents were recorded pattadars, they had right, title and possession of the land in question. Under these circumstances, and having fulfilled the conditions of Sections 52 and 53 of the Regulation, the Respondents had obtained mutation or registration and became co-pattadars of the land. We are, therefore, to presume that they had title and possession and thus had possession till the application for partition was made. As suck when the Respondents had title and possession it was for the objectors to show that they lost either title to the property or possession over the land in respect of, which the partition was asked for. Section 97(1) of the Regulation confers a right on the recorded pattadars to ask for partition. In our opinion an objector to such partition cannot force the hand of the Revenue Officer to proceed with the partition proceeding by merely taking up the plea that the applicant has no possession over the land. He must establish a prima facie case in the application. He must assert when and how the applicants lost their title and/or possession. By making vague allegation about loss of title and possession the objector cannot ask for an order from the Revenue Officer, There must be some material on the basis of which the Revenue Officer must reach the conclusion that the contentions made before him require adjudication by the Civil Court. A mere vague assertion of lost of title/possession is not enough to obtain a stay order from Revenue Officer. In the instant case the applicants for partition were co-pattadars who having had established their title and possession to the land got registration in their favour. Under these circumstances, it was necessary for the objectors to show when and how the applicants had lost their title and or possession. We find from the findings of the authorities below that they considered as to whether the applicants had title and possession over the land. Learned Board of Revenue has held that the Respondents had right, title and possession over the land sought to be partitioned and further held that the claim of the Respondents about the title and possession were supported by other co-pattadars as well. It is, therefore, seen that apart from the fact that the Respondents were co-pattadars there are other material emanating from the statement of co-pattadars that the applicants had title and possession over the land sought to be partitioned.

We find that the Board of Revenue, the appellate authority has reached the conclusion based on material that the Respondents/applicants had title and possession to the land and as such they were entitled to partition, The findings reached are primarily based on findings of fact which we in exercise of our jurisdiction under Article 226 of the Constitution can not interfere. Learned Board of Revenue has correctly interpreted the provisions of Section 100 of the Regulation. We have before us the conclusive finding of the Board of Revenue that in respect of 52 B. 1 K. 14 Chattucks of land sought to be partitioned the pattadars had title and possession. We also find that their claim was supported by other co-pattadars. We also taken into consideration the findings of the Sub-Divisional Officer.

In the result, we find no merit in the application. Accordingly it is dismissed in limine.