This writ petition has arisen against the judgment and order dated 4.5. 1989 passed by the learned Assam Board of Revenue, Guwahati in Case No. 219 RA(N)/88 dismissing the petitioner's appeal and also against the impugned notice dated 18.11.68 issued by the Sub Deputy Collector, Nagaon Circle ordering the petitioner to vacate possession of 2l/2 lechas of land described in the said notice by removing his latrine house and tube well therefrom. 2. The case of the petitioner is that the petitioner purchased 1 3I/2 lechas of land covered by Dag No. 313 of Periodic Patta No. 98 New (88 old) in town Kachalukhowa Kissam in Mouza Town, District Nagaon and the petitioner got his name mutated in the patta in respect of the aforesaid land. It is contended that the petitioner has been possessing the said land ascertaining and demarcating .its boundaries by physically residing over the said land whereon he has residential house, bath rooms, sanitary latrine, tube well etc,. The land was purchased by the petitioner prior the the purchase of the respondent No. 3 constructing his house under the Nagaon Municipal Board being Holding No. 61 and has been paying the Municipal Tax and land revenue regularly. The Patta No. 98 New (88 old) contains 1 katha 14 lechas of land in total out of which the petitioner purchased and is in possession of 13!/2 lechas of land as aforesaid. There are other three pattadars in the said patta including Shri Baidya Nath Dutta, respondent No. 3, who claims 13% lechas as his share; that petitioner's brother Amalesh Chandra Paul is also a pattadar in respect of 61/2 lechas of land and he has been possessing his share physically. Another person Sri Dhiraj Das is also a pattadar in respect of 1 8 lechas of land. The respondent No. 3 filed an application under section 98 of the Assam Land and Revenue Regulations, 1886 (for short the Regulation) alleging that he is the recorded pattadar in respect of 1 33/4 lechas of land of the aforesaid patta in the said dag and that he has been in possession of the same and accordingly prayed for issuing separate patta in his name with respect to the share. The case was registered as PP No. 18/79-80 and was started by the SDO, Nagaon. The case was registered as PP No. 18/79-80 and was started by the SDO, Nagaon. Petitioner appeared and filed objection opposing the prayer of the respondent No.3 on the ground that the respondent No.3 has no title to the land and that he has no possession either. By order dated 20.9.82 the aforesaid petition was allowed and the same was approved by the Additional Deputy Commissioner on 29.9.82. Writ petitioner filed appeal before the Assam Board of Revenue being Revenue Appeal No.254 RA(N)/82 and 40 RA(N)83 was filed by his brother and the learned Assam Board of Revenue upheld the order of perfect partition , which was approved by Additional Deputy Commissioner. Admittedly the writ petitioner did not challenge the said order of the learned Board of Revenue. A separate patta being Patta No.611 was issued to the respondent No. 3 in respect of his share (13% lechas) on 31.1.85 and the partition case was closed on 9.4.85 vide order of the Additional Deputy Commissioner. The allegation of the petitioner is that after 3 years of closure of the aforesaid partition case the SDC Nagaon Circle issued the impugned notice upon the petitioner vide No. NC 3/8/-88/3297 dated 18.11.88 alleging that the petitioner and another co-sharer Shri Amalesh Chandra Paul have been possessing 21/2 lechas of land covered by Dag No.313/1150 of PP No. 611 of Town Kachalukhowa Kissam, Mouza Town, District Nagaon by constructing a latrine house and digging tube well and that the said land of 21/2 lechas fall within the share of respondent No.3 Sri Baidya Nath Dutta who has been granted separate patta being PP No.611 with respect to his total share of 13% lechas in the said dag as per order of the Perfect Partition Case No. 18/79-80. Further by the said order learned SDC directed the petitioner and other co-sharer Sri Amalesh Chandra Paul to remove the aforesaid latrine house and the tube well from the said 2Vi lechas of land and to vacate the same within the time mentioned in the said notice. It was further mentioned in the said notice that the same has been issued as per direction of the Additional Deputy Commissioner, Nagaon dated 4.10.88 passed in NRP/PP Case No. 18/79-80/27. Against this order the petitioner filed an appeal before the learned Board of Revenue and by judgment and order dated 4.5.89 the same was dismissed. It was further mentioned in the said notice that the same has been issued as per direction of the Additional Deputy Commissioner, Nagaon dated 4.10.88 passed in NRP/PP Case No. 18/79-80/27. Against this order the petitioner filed an appeal before the learned Board of Revenue and by judgment and order dated 4.5.89 the same was dismissed. Against this order the petitioner has approached this Court invoking the writ jurisdiction of this Court for setting aside the same. 3. The respondent No.3 Sri Baidya Nath Dutta filed affidavit-in-opposition denying the claim of the writ petitioner. The averment made by the respondent No.3 is that the name of respondent No.3 was mutated by right of partition in Mutation Case No.400/76-77 by order dated 12.11.77 and by order dated 17.5.79 g revenue record was corrected accordingly; that by order dated 20.9.82 the Sub Divisional Officer allowed perfect partition and by order dated 20.9.82 the Additional Deputy Commissioner approved the order of perfect partition by the Sub Divisional Officer. That, by order dated 23.12.83 learned Board of Revenue dismissed the appeal as aforesaid, that by order dated 14.8.84 the Additional Deputy Commissioner rejected the Mutation Appeal No, 87/81-82 filed by the petitioner against the order of mutation dated 12.11.77 by which the name of the respondent No.3 was mutated in respect of 13% lachas of land. Against this order dated 14.8.84 the writ petitioner did not prefer any appeal before the appropriate forum and by order dated 2.2.85 separate patta being Patta No. 611/1150 has been issued by the Additional Deputy Commissioner after perfect partition in respect of 13% lechas of land on the basis of the order of perfect partition and accordingly by order dated 28.2.85 the revenue record was amended. It is further averred that the respondent No. 3 filed an application before the Additional Deputy Commissioner under section 116A of the Regulation for demarcation of his share and possession thereof and the Additional Deputy Commissioner directed the Sub Deputy Collector by order dated 29.5.86 to deliver the possession of the land. It is further averred that the respondent No. 3 filed an application before the Additional Deputy Commissioner under section 116A of the Regulation for demarcation of his share and possession thereof and the Additional Deputy Commissioner directed the Sub Deputy Collector by order dated 29.5.86 to deliver the possession of the land. As the Sub Deputy Collector found that 2'/a lechas of land falling in the share of the respondent No. 3 was occupied by the writ petitioner and his brother by constructing a latrine and tube well the same was reported to the Additional Deputy Commissioner who directed the SDC to take steps for clearance of the said land and to give possession to the respondent No. 3 by order dated 4.10.88. Admittedly the writ petitioner did not challenge the order dated 4.10.88 passed by the learned Additional Deputy Commissioner but the writ petitioner preferred an appeal before the Assam Board of Revenue against the notice of the SDC dated 10.11.88. 4. The writ petitioner has challenged in this writ petition the competency of the Sub Deputy Collector as the Additional Deputy Commissioner cannot delegate the authority to the Sub Deputy Collector in a partition case that no eviction is contemplated in a partition case either under section 116A or 110, Rule 174, Chapter VI; that without there being a proper survey of the entire land it cannot be said that the writ petitioner has been in possession of the land t. of respondent No. 3 as every pattadar is entitled to get his respective share ascertained and allotted; that under section 116A or Rule 174 each and every pattadar need not necessarily apply for partition. Further ground is that even if the petitioner is found to be in possession of 2l/2 lechas of land with bath room, latrine, tube well etc. the writ petitioner is protected under section 110 (1) of the Regulation. 5. The admitted position is that the respondent No. 3 got separate patta and his name was mutated some time back in 1977. Against the issue of mutation and separate patta the appeal of the writ petitioner has been rejected and admittedly the petitioner did not prefer any appeal before the appropriate forum. After the grant of separate patta the respondent No.3 admittedly filed an application for demarcation of his share and possession over his patta land. Against the issue of mutation and separate patta the appeal of the writ petitioner has been rejected and admittedly the petitioner did not prefer any appeal before the appropriate forum. After the grant of separate patta the respondent No.3 admittedly filed an application for demarcation of his share and possession over his patta land. After three years of issuing of that patta the petitioner constructed bath room, latrine and tube well on a portion of patta land of respondent No. 3, ie, 21/2 lechas of land. In a proceeding under section 144 CrPC the Executive Magistrate dropped the proceeding by order dated 26.3.82 in which it was categorically stated that the writ petitioner/second party had started construction of latrine etc. 6. From the above discussion the submission of the learned counsel for the petitioner that the Additional Deputy Commissioner has no jurisdiction under section 116A of the Regulation to deliver the share, possession and separate land after the perfect partition and that he cannot summarily eject any proprietor, land holder who refuse to vacate the same is not sustainable. Section 116A reads as follows : "116 A. Procedure to be followed by Deputy Commissioner in giving effect to the partition - As soon as may be after the date on which the partition takes effect under the last preceding section, the Deputy Commissioner shall deliver to the several sharers possession of the separate lands allotted to them, and for this purpose may, if necessary, summarily eject any proprietor or land holder who may refuse to vacate the same." This section gives the Deputy Commissioner the power, authority and jurisdiction to deliver to the sharers the possession of separate land after the perfect partition and can summarily eject any proprietor, land holder who refuses to vacate the land in question. 7. The notice was issued on the basis of the order of the Additional Deputy Commissioner and in my view, the notice issued by the Sub Deputy Collector on 10.11.83 was valid and legal. The petitioner is protected under section 110 (1) of the Regulation is not sustainabe or the ground that the of the latrine and tube well are not dwelling house. 8. The petitioner is protected under section 110 (1) of the Regulation is not sustainabe or the ground that the of the latrine and tube well are not dwelling house. 8. Learned counsel for the petitioner referred AIR 1952 Assam 133 (Banamali Roy vs. Premdayal Chaudhury) wherein it was held as follows: "the opening lines "If, in making a partition, is necessary etc." of section 110(1) imply that the duties which have to be performed under the provisions of the section are the duties to be performed by the authority making the partition. Section 110 does not in terms say that an objection or claim should be made by one of the parties before the terms of section 110 can be attracted." The reference of the learned counsel is not applicable in this case as the fact on record is that the construction of latrine and tube well, bath room etc were made during the pendency of the partition case. 9. Section 110 (1) of the Regulation reads as follows : "110. (1) If, in making a partition, it is necessary to include in the estate assigned to one share the land occupied by a dwelling house or other building in the possession of another co-sharer, that other co-sharer be allowed to retain it with any buildings thereon, on condition of his paying a reasonable ground-rent for it to the sharer into whose portion it may fall." 10. As stated above in the order of the Executive Magistrate dated 26.3.82 (Annexure 6 to the petition) evidently the construction was made during the pendency of the partition case and being aggrieved the respondent N6.3 had to file the petition under section 144 CrPC. The order of the Executive Magistrate 8 is as follows: "Second party have started construction of a latrine on their yard which I presume (underline supplied) to be so from the circumstances and other aspects. Only the plinth is complete by now. This fact is also corroborated by police report dated 23.3.82 wherein it is stated that one pucca latrine is under construction." 11. From my above discussion I am constrained to hold that section 110 of the Regulation is not attracted in the case of the petitioner and I find no material to interfere with the order of the learned Assam Board of Revenue. 12. In the result the writ petition is dismissed . No costs.