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2004 DIGILAW 501 (GAU)

Samdabibi v. Assam Board of Revenue

2004-08-31

AMITAVA ROY

body2004
Judgment : Amitava Roy, J. 1. The judgment and order dated 4.8.1995 passed by the learned Assam Board of Revenue (hereafter referred to as the Board) in Appeal case No. 170RA(C)/98 is in challenge in the instant petition. 2. I have heard Mr. S.A. Laskar, Advocate for the petitioners and Mr. Ahmed, Advocate for the private respondent. Mr. Thakur appeared for the State respondents. 3. The facts of the case, briefly stated, are that the respondent No. 6, Mussabir Ali Mazumdar had filed an application for perfect partition of the land measuring 25 Bighas 5 Kathas 2 Chattaks claiming a share of 12 Bighas 12 Kathas 9 Chattaks therein. In the application that was filed for the said purpose before the Sub-Divisional Officer (Collector), Hailakandi and registered as P.P. Case No. 11/1983-84, by order dated 5.2.1987, the prayer was allowed. Being aggrieved, the predecessor in interest of the writ petitioners took the matter before the Additional Deputy Commissioner, Cachar, Silchar, and a proceeding was registered as PP Objection case No. 10/86-87. It was, inter alia, contended therein by the petitioners' predecessor in interest that the respondent No. 6 was entitled to 9B7KlCh out of the total land sought to be partitioned and that he was entitled to remaining land measuring 15B19KlCh. A plea of non-joinder of the other pattadars namely the heirs and legal representatives of their deceased sisters Ms Kadarjan Bibi and Misira Bibi was also raised. The learned Additional Deputy Commissioner, after hearing the parties and on a consideration of the materials on record, entertained the contentions and referred the parties to the Civil Court for determination of the extent of their shares. 4. Being aggrieved, the respondent No. 6 took the matter in appeal before the Board, which was dismissed as barred by limitation. The respondent No. 6 approached this Court with Corporation 838/89, which was allowed, and the matter was remitted to the Board for disposal on merits. 5. After remand, the appeal was dismissed for default of the respondent No. 6. The appeal, however, came to be restored, according to the writ petitioners, without serving any notice on their predecessor in interest. According to them, the appeal was heard and disposed of in his absence by the impugned judgment and order. 6. 5. After remand, the appeal was dismissed for default of the respondent No. 6. The appeal, however, came to be restored, according to the writ petitioners, without serving any notice on their predecessor in interest. According to them, the appeal was heard and disposed of in his absence by the impugned judgment and order. 6. In the writ petition, it has been, inter alia, contended that the appeal having been restored and heard in absence of the predecessor in interest of the writ petitioners, the impugned judgment and order being in contravention of Regulations 13 and 14 of the Assam Board of Revenue Regulation, 1963, (hereafter referred to as the Regulation) is vitiated by a gross illegality and is not sustainable in law. It is also asserted that their predecessor in interest was dead long before the appeal was heard without substituting them in his place and as a matter of fact, as the appeal was non est in law on the date of hearing, having consequentially abated in the meantime, the impugned judgment and order was patently illegal and thus was liable to be set aside. 7. No affidavit in opposition has been filed by any of the respondents and therefore, the statements made in the writ petition remain uncontroverted. 8. Mr. Laskar has emphatically argued that the appeal after being dismissed for default, having been restored and heard without serving any notice on the predecessor in interest of the petitioners, it was in gross violation of Regulations 13 and 14 of the Regulations. He, further, contended that the appeal on the death of the predecessor in interest of the petitioner had become non est on the failure on the part of the respondent No. 6 to substitute the heirs of the deceased respondent and on that ground alone, the impugned judgment and order is void ab initio in terms of Regulation 20. On merits, Mr. Laskar has argued that the omission on the part of the respondent No. 6 is impleading the other patadars namely the heirs and legal representatives of the deceased sisters of the parties was in contravention of the mandatory requirements of Sections 98, 99 and 100 of the Assam Land Revenue Regulation, 1886, and the learned Board having totally overlooked this aspect of the matter, the impugned judgment and order being ex facie illegal is liable to be set aside, Mr. Laskar in support of his submissions has placed reliance on the provisions of the Regulations and those of the Assam Land Revenue Regulations, 1886, referred above. 9. Mr. Ahmed, in reply, sought to save the impugned judgment and order by pleading that as the ground of abatement of the appeal had not been taken up in the writ petition, the same is not available to the petitioners. The learned Counsel was, however, fair to concede that no substitution of the heirs and legal representatives of the respondent in the appeal (predecessor in interest of the writ petitioners) was done before the Board and that the co-pattadars, namely the heirs and legal representatives of the sisters of the parties were also not impleaded in the partition proceedings. 10. Abare look into Sections 98, 99 and 100 of the Assam Land Revenue Regulations, 1886, makes it abundantly clear that in a proceeding for perfect partition, notice has to be duly served on all recorded proprietors or land holders who had not joined in the application praying for partition. Under section 100, if any objection is raised with regard to title in the land involved in the partition proceeding, the proceedings are to be stayed and the parties are to be referred to Civil Court for deciding on the objection on merits. 11. Admittedly on the date of the application, Ms. Kadarjan Bibi and Misira Bibi, the sisters of the parties were alive and were impleaded as parties in the partition proceeding. They expired in course thereof but were not substituted by their heirs and legal representatives nor any notice was served on them about the same. This was duly noticed by the learned Additional Deputy Commissioner while upholding the objection filed by the predecessor in interest of the petitioners against the order by partition passed by the Sub Divisional Officer, Hailakandi. In view of the objection raised with regard to the title of the respondent No. 6 on his claimed share of land, the Additional Deputy Commissioner, Hailakandi, referred the parties to the Civil Court for adjudication on the issue of title in the land. 12. In view of the objection raised with regard to the title of the respondent No. 6 on his claimed share of land, the Additional Deputy Commissioner, Hailakandi, referred the parties to the Civil Court for adjudication on the issue of title in the land. 12. Before the Board, the admitted fact demonstrate that there has been a violation of the requirements of Regulation 15 of the Regulations inasmuch as after the dismissal of the appeal for default, the same had been restored and heard without serving notice on the predecessor in interest of the petitioners. The fact that the predecessor in interest of the petitioners had expired on 21.4.1995 and that the appeal was heard thereafter and disposed of by order dated 4.8.1995 without substituting his legal heirs and representatives is also not in dispute. This in my considered view is opposed to the letter and spirit of Regulation 20 of the Regulations which mandatorily requires that if a respondent dies while an appeal or application is pending, it cannot be proceeded with unless his legal heirs and representatives are substituted as parties to the application. The said provision of the Regulations further lays down that if an application for substitution of the heirs and representatives of the deceased respondent is not filed before the Board within 90 days from the date of death, the appeal would abate. In the case in hand, no application was made for substitution of the heirs and representatives of the deceased respondent in the appeal. In view of the clear and unambiguous language of the Regulation 20 of the Regulations, I am of the view that the appeal abated on the expiry of 90 days from 21.4.1995. The appeal having been heard on 22.6.1995 and disposed of on 4.8.1995, the Board in fact, by the impugned judgment and order, had disposed of the appeal, which was non est in law on that date. On this point alone, the impugned judgment and order is liable to be set aside. 13. It is noticeable that in terms of the order of this Court, the present petitioners were brought on record in place of their predecessor in interest. This in my view does not improve the situation for the respondent No. 6 inasmuch as thereby the fatal infirmity that had crept into the proceedings in the appeal does not get cured. 14. It is noticeable that in terms of the order of this Court, the present petitioners were brought on record in place of their predecessor in interest. This in my view does not improve the situation for the respondent No. 6 inasmuch as thereby the fatal infirmity that had crept into the proceedings in the appeal does not get cured. 14. On a consideration of the materials on record in their entirety and the state of law as noticed here in above, I find sufficient force in the petition. The impugned judgment and order of the Board, in the above factual premises, is not sustainable and is hereby set aside. The petition is allowed. No costs. Petition allowed