Pfulhoutsu Angami vs State of Nagaland

Suman Shyam, J. - Heard Mr. P. Choudhury, learned counsel for the appellant. Also heard Mr. K. Wotsa, learned Senior Government Advocate, Nagaland representing the official respondent Nos. 1 to 5 and Mr. I. Longjem, learned counsel appearing for the respondent no. 6. None appeared for respondent Nos. 7 to 10.

This writ appeal is directed against the judgement and order dated 23.02.2011 passed in W.P. (C) 20(K)/2009 whereby the learned Single Judge had dismissed the writ petition filed by the appellant as petitioner challenging the legality and validity of the order dated 27.01.2009 issued by the respondent No. 3 mutating the name of the respondent no. 6 in place of his deceased father late Yoso Angami as a joint Pattadar in respect of the plot of land in question.

The brief factual matrix of the case is that the appellant, the father of the respondent no. 6 and the father of the respondent Nos. 7 to 10 herein had jointly purchased a plot of land measuring 5 Bighas 4 Kathas by means of a registered deed of sale dated 01.09.1975 and a Patta bearing No. 171 pertaining to Dag No. 30 located at Block No. 6. Dimapur was also issued in the name of the land owners. The father of the respondent No. 6 expired on 02.05.1978. The respondent No. 6, being the son of Yoso Angami, obtained a Succession Certificate dated 07.08.1978. In the year 2008, the respondent No 6 had filed an application before the Deputy Commissioner, Dimapur, i.e. the respondent No. 3 for substituting his name in place of his deceased father in the Revenue Records.

The appellant had filed objection opposing the prayer of mutation made by the respondent No. 6, primarily on the ground that Section 50 of the Assam Land and Revenue Regulation (hereinafter referred to as "the Regulation") enjoined a duty upon the legal heirs to file such application within 6 (six) months from the date of taking possession and assumption of charge before the Deputy Commissioner of the District. Since the application for mutation had been made by the respondent no. 6 only in the year 2008, hence, the same was barred by time and hence, could not have been entertained by the learned Deputy'' Commissioner. Dimapur.

Mr. R. Choudhury, learned counsel representing the appellant has drawn the attention of this Court to the provision of section 50 of "the Regulation" to contend that the application filed by the respondent no. 6, not having been made within six months from the date of death of his father Yoso Angami, his right to have his name included in the Revenue Record stood extinguished by operation of Law and hence, the respondent no. 3 committed manifest illegality in passing the impugned order dated 27.01.2009 substituting the respondent No. 6 in place of his deceased father in the revenue records. Mr. Choudhury has further contended that although the registered deed of sale date 01.09.1975 had mentioned the name of the predecessors-in-interest of the respondent Nos. 6 and 7 to 10 as joint owners of the aforementioned plot of land along with the appellant, yet, the father of the respondent No. 6 had made very minimal contribution whereas, the predecessor-in-interest of tin respondent No. 7 to 10 did not make any contribution at all. That apart, according to Mr. Choudhury, land was in the possession of appellant alone. As such, there was no justifiable ground for the respondent no. 3 to pass the impugned order.

Mr. I. Longjem, learned counsel appearing for the private respondents submits that the father of the respondent no. 6 was admittedly one of the joint purchasers of the disputed land and, hence, after his death, his name has been rightly substituted by including the name of his son i.e. the respondent no. 6 by the impugned order dated 27.1.2009. Mr. Longjem further submits that the order dated 27.01.2009 does not suffer from any infirmity and hence, the learned Single Judge has rightly dismissed the writ petition by giving reasoned order which does not call for any interference by this Court.

Mr. Wotsa, learned senior Government Advocate, Nagaland has supported the arguments advanced by Mr. Longjem and submitted that the dispute sought to be raised in the writ petition is a civil dispute which can be settled only before a Civil Court.

We have considered the submissions made by the learned counsel for the parties and have also perused the materials on record.

It is the admitted position of fact that the land measuring 5 Bigha 4 Katha covered by Patta No. 171 Dag No. 30 of Block-6, Dimapur, was jointly purchased by the appellant and the predecessors-in-interest of the respondent nos. 6 to 10 by means of a registered deed of sale dated 01.09.1975. It is also the undisputed position of fact that the respondent no. 6 is the son of Yoso Angami, who was one of the joint purchasers of the land.

It appears from the record that earlier one Dhandiram Barman, in his capacity as a tenant occupying the suit property, had instituted Title Suit No. 3/1972, inter-alia, challenging the validity of the sale deed dated 01.09.1975 and seeking declaration of his right over the land in question wherein late Yoso Angami was one of the defendants. After the death of Yoso Angami, the plaintiffs in Title Suit No. 3/1972 had substituted the deceased Yoso Angami by bringing on record the respondent no. 6 and Smt. Vichu Angami i.e. the wife by filing an application under Order 22 of the CPC. The present appellant was not made a party to the said proceeding.

By the judgement and order dated 06.03.1979 passed in Title Suit No. 3/1972, the suit filed by Dhandiram Barman was dismissed by upholding the validity of the sale deed dated 01.09.1975 and the revision petition preferred by Dhandiram Barman was also dismissed on 31.03.1983. A challenge made to the order dated 31.03.1983 was also rejected by this Court by the judgement and order dated 02.06.1987 passed in CR 12 (K)/1983. Although a SLP was preferred against the judgement dated 02.06.1987 before the Supreme Court of India, yet, the same also stood dismissed.

It further transpires from the record that the present appellant had earlier filed Title Suit No. 5/1978 against the tenants occupying the suit property seeking their eviction and also compensation on account of damages for wrongful use and occupation of the suit property wherein the respondent no. 6 and his mother as well as the predecessors in interest of the respondent no. 7 to 10 were joint plaintiffs. T.S. No. 5/1978 was disposed of by the judgement and order dated 08.12.2000 which was taken in an appeal before this Court by one of the defendants therein by filing F.A. No. 6(K)/2000. Eventually, by the order dated 07.11.2006 passed by this Court, F.A. No. 6(K)/2000 was disposed of on compromise arrived at by and between the parties. In all the aforementioned legal proceedings involving the aforementioned land, the respondent No 6, in his capacity as the legal heir of Yoso Angami, was a party. Taking note of the aforementioned fact and on a minute scrutiny of the provisions of Sections 50, 58 and Rule 125 framed under the Regulation it has been held that in the facts of the present case the delay in filing the application seeking mutation of his name would not extinguish the rights of the respondent No 6 in the matter. The learned Single Judge has, therefore, held that the writ petition was devoid of any merit and accordingly dismissed the same by the impugned judgement and order dated 23.02.2011.

Since the learned counsel for the appellant has placed heavy reliance on the provision of Section 50 of the Regulation, it would be apposite to quote the said provision for ready reference.

"50. Liability of persons succeeding to estates to give information of succession.- After the commencement of this Regulation-

(a) every proprietor of land-holder succeeding to any estate, or share in an estate, whether by transfer or inheritance, and obtaining possession of the same;

(b) every joint proprietor of joint landholder, or any estate assuming charge of the estate or of any share therein on behalf of the other proprietor or land-holders thereof;

(c) every person assuming charge of any estate of a proprietor or land-holder, or of any share therein as manager; and

(d) every mortgagee obtaining possession of any estate of a proprietor or landholder, or of any share therein;

Shall, within six months from the date of taking possession or assumption of charge, apply to the Deputy Commissioner of the District on the general registers of which the estate is borne for registration of his name as such proprietor, land-holder, manager or mortgagee, and of the nature and extent of the interest in respect of which the application is made."

From a bare reading of the aforesaid provision, it is clear that the same relates to proprietor or land holder to any estate but not to any patta holder of a plot of land.

Section 3(f) of "the Regulation" defines Proprietor as "the owner of any estate permanently settled or entered in the Deputy Commissioner''s register of revenue-free estates."

Similarly, section 3(g) defines land holder to mean any person deemed to have acquired the status of a land-holder under Section 8.

As per section 8, any person who has before the commencement of this Regulation, held immediately under the government for ten years continuously any land not included either in a permanently-settled-estate or in a revenue-free-estate, and who has during that period paid to the government revenue due thereon or held the same under express exemption from revenue, would acquire the status of a land holder 50 of "the regulation" would not have any application in the facts of the present case.

Since it is the admitted position of fact that the appellant and the predecessor in interest of the respondent nos. 6 to 10 had jointly purchased the aforesaid plot of land by means of a registered deed of sale where after a patta was issued in their name, hence, the said purchasers were neither "proprietor" nor "land holder" within the meaning of the Regulation. Therefore, section 50 would not at all be attracted in the facts of the present case. In such view of the matter, the learned Single Judge, in our view, was correct in holding that Section 50 of the Revenue Regulation does not have any application in the facts of the present case.

Chapter III Part-D of the Regulation deals with record of right and section 40 provides thus:-

"40. Record of rights.-The Settlement Officer shall frame for each estate a record-of-rights in the prescribed manner.

Record of right - Jamabandi based on chitha - Actual possession relevant - Section 40 of the Assam Land and Revenue Regulation provides for record of rights. The Settlement Officer has to frame for such estate a record of right in the prescribed manner. The note appended to the section shows that the record of rights is the jamabandi based on chitha and the field map. Entry in the record of rights, has to be founded on the basis of equal and actual possession. At the time of settlement the jamabandi is prepared which records name of pattadars on the basis of possession.

Records of rights shall be deemed to be correct unless contrary is proved - Mutation entries may not be the basis of title but those cannot be ignored and must receive due consideration of Courts."

As per the Regulation, "Jamabandi" is a record of right based on Chitha, which is prepared on the basis of actual possession at the relevant point of time and the entries made in the Jamabandi shall be deemed to be correct unless the contrary is proved. Section 41 of the Regulation further provides that entries made in the record under Section 40 shall be founded on the basis of actual possession. Section 41 is reproduced herein below for ready reference :-

"41 .Entries in record and their effect-

(1) Entries in the record made under Section 40 shall be founded on the basis of actual possession and all disputes regarding such entries, whether taken up by the Settlement-Officer of his own motion or on the application of party concerned shall be investigated and decided by him on that basis and all persons not in possession, but claiming the right to be so, shall be referred by him to the proper Court.

(2) Every entry in the record-of-rights made under this section shall, until the contrary is proved, be presumed to be correct."

From the above, it is evident that the Deputy Commissioner or the Settlement Officer in exercise of its power under Part-D of Chapter-III of the Regulation, can enter the name of a land owner or any other person found to be in possession of the land. In other words, the entry of name in the record of right (Jamabandi) is made on the basis of actual physical possession of the land and for the limited purpose of identifying the person responsible for payment of land revenue. It is settled law that mutation does not confer any title over the land nor can the Revenue Authorities entertain any dispute pertaining to title or claim of right over any Patta land and the same has to be referred to the proper Court which is the Civil Court.

From a perusal of the pleadings contained in the writ petition, it is apparent that in the garb of a challenge to the order dated 27.01.2009, the appellant is making a collateral challenge to the right, title and interest of the respondent Nos. 6 to 10 over the plot of land in question in a manner which is not permissible in the eyes of law. In the present case, since the respondent No. 6 is admittedly the legal heir of one of the co-pattadar, viz. Yoso Angami and there is nothing on record to conclusively establish that the respondent no. 6 and his mother were not in possession of the land after the death of his father. We are, therefore, of the opinion that the provisions section 50, 58 and Rule 125 would not be attracted in the facts of the present case nor will the provision of Rule 116 have any relevance in the matter. The dispute sought to be raised by the appellant is purely a civil dispute which can be settled before the competent civil court having jurisdiction over the matter.

There is yet another aspect of the matter which needs to be briefly mentioned herein. As per the provision of Section 147 of the Regulation, any order passed by the Deputy Commissioner, Settlement Officer or Survey Officer is appealable before the Board of Revenue. However, instead of preferring an appeal, the writ petitioner has straightway approached the High Court by filing the writ petition, thereby raising several disputed question of facts, which cannot be decided in a proceeding under Article 226 of the Constitution of India.

For the reasons stated herein above, we find ourselves in complete agreement with the decision of the learned Single Judge dismissing the writ petition filed by the appellant. Consequently, this writ appeal is found to be devoid of any merit and the same is accordingly dismissed.

There will be no order as to costs.