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2004 DIGILAW 18 (GAU)

Anis-Uz-Zaman v. Rajeeb-Al-Hatim Hai

2004-01-08

RANJAN GOGOI

body2004
JUDGMENT Ranjan Gogoi, J. 1. An appellate order dated 1.6.1999, passed by the Assam Board of Revenue is the subject matter of the challenge in the present writ application. 2. The facts leading to the institution of the appeal before the learned Board of Revenue will have to be briefly recited in order to enable this court to decide on the correctness of the rival contentions advanced. One Abdul Mazid, was the owner of a plot of land measuring 3 Kathas 9 lechas under Dag No. 260 K.P. Patta 216(new) of Block No. IV of Ulubari Mouza within Guwahati City. There was a family partition of the aforesaid land and the 2 sons of Abdul Mazid, i.e. Talebuddin Ahmed and Abdul Hai were given 14 and half lechas of land respectively, whereas the two daughters of Abdul Mazid i.e., Mustt. Faziltan Nessa and Mustt. Ismatan Nessa were given 1 katha of land each. Mutation of the aforesaid shares were effected in terms of the family settlement reached. The writ petitioner, Md. Anis-Uz-Zaman is the legal heir of one of the daughters of Abdul Mazid, i.e., Mustt. Faziltan Nessa and on the death of his mother, he inherited 1 Katha land covered by new Dag No. 209. The other daughter Mustt. Ismatan Nessa sold he share of 1 Katha of land under new Dag No. 210 KP 83 to the respondent No. 2 and mutation was allowed by the Circle Officer by order dated 5.7.1996. The petitioner obtained mutation in respect of another plot of land measuring 10 lechas under new Dag No. 212 of KP 83 claiming to be a heir of Mustt Ismatan Nessa. Mutation was granted to the petitioner on 15.7.1996 by the Circle Officer in respect of the said land. The aforesaid mutation was objected to and the Additional Deputy Commissioner having rejected the said objection in an appeal filed by the present respondents and the mutation granted by the Circle Officer on 15.7.1996 having been confirmed, a further appeal was filed before the Board of Revenue by the present respondents. Before the learned Board two primary contentions were advanced. Firstly, it was contended that the mutation granted to the writ petitioner i.e., Respondent in the appeal before the Board of Revenue by order dated 15.7.1996 was erroneous in as much as Mustt. Ismatan Nessa had no land in Dag No. 212. Before the learned Board two primary contentions were advanced. Firstly, it was contended that the mutation granted to the writ petitioner i.e., Respondent in the appeal before the Board of Revenue by order dated 15.7.1996 was erroneous in as much as Mustt. Ismatan Nessa had no land in Dag No. 212. The only land owned by her and covered by Dag No. 210 had been sold by the aforesaid Mustt. Ismatan Nessa during her life time. The second ground urged was that the Civil Court is Session of a suit between the parties in respect of the same subject matter had by an order dated 23.11.1998, declared that the writ petitioner/respondent before the Board was not the legal heir of Mustt. Ismatan Nessa and therefore, the mutation granted by the primary authority and upheld by the learned Additional Deputy Commissioner was ex facie erroneous. The learned Board of Revenue, on consideration of the facts of the case and submissions advanced on behalf of the rival parties, by the impugned judgment and order dated 1.6.1999 allowed the appeal and interfered with the mutation granted in favour of the writ petitioner i.e. respondent in the appeal before the Board. Aggrieved the present writ application has been filed. 3. I have heard Mr. S. Medhi, learned Counsel for the petitioner and Mr. C.K. Sharma Barua, learned Counsel appearing on behalf of the respondents. Though a preliminary objection has been taken on behalf of the respondents with regard to the maintainability of the writ petition, by contending that there has been suppression of facts establishing lack of bona fides in filing the present writ application, having regard to what is alleged to have been suppressed, i.e., an order passed by the Board in refusing to review its earlier order dated 1.6.1999, this Court would not like to refuse a consideration of the merits of the case as projected in the writ petition. It is, therefore, the merits of the case to which this Court would like to turn to. 4. It is, therefore, the merits of the case to which this Court would like to turn to. 4. The facts brought on record by the rival parties amply demonstrate that a suit being Title Suit No. 158/98 has been instituted by the present writ petitioner in the Civil Court at Guwahati, questioning the title of the respondents to the disputed land in the said Civil suit, on a prayer for injunction being made, the Court by order dated 23.11.1998 had rejected the said prayer by holding that the writ petitioner is not the legal heir of Mustt. Ismatan Nessa, in accordance with the provisions of the Mahomedan Law applicable in this regard. Whether the Revenue Court should proceed to decide a dispute with regard mutation when a Civil suit is pending between the parties over their respective rights to the same land is essentially a matter of discretion of the Revenue Court to be exercised on a consideration of the attendant facts and circumstances and if it is considered prudent, the Revenue Courts are empowered to defer consideration of the proceedings before it until the Civil Court decides the matter. In the instant case the Board of Revenue, which is the highest revenue Tribunal in the State, took note of the proceedings in the suit pending between the parties and acting on the basis of the order passed in the injunction matter thought it proper to decide the question in favour of the appellant before it i.e., respondents in the present writ petition. The findings of the Civil Court in the injunction matter would not be a conclusive determination of the entitlements of the parties which has to be decided finally in the suit. Nevertheless, the conclusion reached in the injunction matter will hold the field till such time that the suit is disposed of. In such a situation, the reliance placed by the Board of Revenue on the order passed in the injunction matter in negativating the claims of the writ petitioner must be understood to be a limited exercise i.e. until such time that the Civil Court finally adjudicates the suit. No error of jurisdiction in placing reliance on the conclusion of the Civil Court in the injunction matter can therefore be attributed to the learned Board of Revenue which will call for interference of this Court under Article 226. No error of jurisdiction in placing reliance on the conclusion of the Civil Court in the injunction matter can therefore be attributed to the learned Board of Revenue which will call for interference of this Court under Article 226. The grievances of the writ petitioner are capable of being taken care of by holding that the conclusion reached by the Board of Revenue will remain in operation until such time that the suit is finally adjudicated and depending on the verdict of the Civil Court in the matter, the final rights of the parties will have to be determined/redetermined. For the aforesaid reasons, I am inclined to hold that the judgment and order dated 1.6.1999 passed by the Assam Board Revenue does not require any interference from this Court. Writ petition shall stand accordingly dismissed. However, having regard to the facts and circumstances of the case, there shall be no orders as to cost.