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2013 DIGILAW 23 (GAU)

Hemo Kanta Deka v. Assam Board of Revenue

2013-01-10

BIPLAB KUMAR SHARMA

body2013
JUDGMENT Biplab Kumar Sharma, J. 1. The challenge made in this writ petition is the judgment and order dated 14.12.2005 passed by the learned Assam Board of Revenue, Guwahati in Appeal Case No. 68 RA (K)/2000 allowing the appeal and setting aside the order dated 26.5.2000 passed by the Additional Deputy Commissioner, Kamrup, Guwahati in Revenue Appeal No. 57/94-95, by which, the order of mutation granted in favour of the petitioners in place of the names of their deceased predecessors in interest, by way of inheritance was set aside. The petitioners and the respondents are the sons of Late Tarun Deka and Late Nagendra Deka except the petitioner No. 6, who is widow of Late Tarun Deka. Tarun and Nagendra are brothers, whose father was Late Rohini Deka. He was the permanent resident of Village-Manaha Kachari and owned and possessed land measuring about 88 bighas in Village-Dakshin Dimoria and Uttar Dimoria under Dimoria Mouza. He died in 1960 leaving his two sons, namely, Tarun and Nagendra who became the joint owners in equal shares of the said land. It is admitted in the writ petition that both during their life time sold some portions of the land to the proforma respondents and thereafter about 47 bighas 2 kathas 4 lessas remained under their joint possession. 2. Nagendra died in 1984 leaving behind the respondents No. 2, 3 and 4 and Late Urmila Deka his widow and accordingly their names were duly mutated in place of Late Nagendra vide order dated 12.9.1989. Tarun also died in 1983 leaving behind the petitioners. According to the petitioners, the respondents No. 2, 3 and 4 surreptitiously filed an application before the Circle Officer claiming mutation of their names in place of Late Tarun and by order dated 25.9.1993, the Circle Officer allowed the said prayer. Consequently, their names were mutated on 8.10.1993. According to the petitioners, the respondents No. 2, 3 and 4 alone cannot be legal heirs of Tarun as the petitioners are also Class-1 legal heirs of Tarun. 3. The petitioners filed an application before the Circle Officer, Sonapur for cancellation of the mutation in the names of the respondents No. 2, 3 and 4 and to mutate their names in place of their predecessors in interest Late Tarun. The said application was numbered as Misc. Case No. 43/1994 and the Circle Officer by his order dated 4.3.1995 rejected the same. The said application was numbered as Misc. Case No. 43/1994 and the Circle Officer by his order dated 4.3.1995 rejected the same. Being aggrieved, the petitioners preferred an appeal before the Deputy Commissioner, Kamrup, Guwahati, which was numbered as revenue Appeal No. 57/1995. On being transferred to the Court of Additional Deputy Commissioner, the said appeal was heard by him and by order dated 26.5.2000 allowed the appeal setting aside the mutation in the name of the respondents No. 2, 3 and 4. Thereafter, it was the turn of the respondents No. 2, 3 and 4 along with their mother to file an appeal in the Assam Board of revenue, which was registered as Revenue Appeal No. 68RA(K)/2000. The appeal having been allowed by judgment and order dated 14.12.2005, the petitioners have filed the instant writ petition. 4. I have heard Mr. N. Choudhury along with Mr. A. Ahmed, learned counsel for the petitioners as well as Mr. P.K. Kalita, learned counsel for the respondents No. 2, 3 and 4. Having appreciated their arguments during the course of hearing and on perusal of the entire materials on record including the records received from the Board of Revenue, my conclusion and findings are as follows: 5. Although the petitioners have stated about rejection of their Misc. Case No. 43/1994 by the Circle Officer, Sonapur upholding the mutation in favour of the respondents No. 2, 3 and 4, but copy of the said order has not been annexed to the writ petition. However, Mr. Kalita, learned counsel for the respondents produced the copy of the said order during the course of hearing. The English version of the said order passed in Assamese is as follows: The petitioner and the Opp. Parties are present Seen the report of Lat Mandal. Notice duly served. Heard the petitioner and the Opp. Parties. The fathers of the petitioner and the Opp. Parties are own brothers. The disputed land is their paternal property. Perused the family settlement (bibhag nama) executed by the said two brothers. It is seen from the family settlement deed that the disputed land is the share of the Opp. Party's father. Appreciating the submissions of the petitioners, I am convinced that as per the family settlement their father got his share and their names have been mutated and they are possessing and enjoying their shares of the land. It is seen from the family settlement deed that the disputed land is the share of the Opp. Party's father. Appreciating the submissions of the petitioners, I am convinced that as per the family settlement their father got his share and their names have been mutated and they are possessing and enjoying their shares of the land. As per the report of the Mondal and statement made by the rival parties, it has transpired that the land in question is in possession of the Opp. Parties. As per the said family settlement (bibhag nama) and possession the disputed land should have been mutated in the names of the Opp. Parties, but the same was not done. Afterwards, on the basis of the application made by the Opp. Parties, their names were mutated in respect of the disputed land. On the basis of the materials available on records, it is seen that the disputed land has already been mutated in the name of the Opp. Parties. The objection raised by the petitioners against the Opp. Parties is not sustainable. Accordingly, their petition is rejected. The Opp. Party's mutation in the disputed land is maintained. 6. From the above, what is seen is that the mutation was granted in favour of the petitioners on the basis of a family settlement, a copy of which was produced by Mr. Kalita, learned counsel for the respondents No. 2, 3 and 4. The fathers of the petitioners and the respondents, who are the brothers being son of Late Rohini, executed the bibhag nama (family settlement) dividing their ancestral property in terms of which they go their respective shares. Although in respect of the share of the petitioners father, mutation was done, but for some reasons, mutation was not done in respect of the share of the respondents father. On the basis of the application made by them, the mutation was allowed. However, on appeal, the mutation was set aside by the Additional Deputy Commissioner, which was again reversed by the learned Assam Board of Revenue maintaining the mutation that was made in favour of the respondents. 7. As to what was the order passed by the Circle Officer on the basis of the objection filed by the petitioner has been noted above. 7. As to what was the order passed by the Circle Officer on the basis of the objection filed by the petitioner has been noted above. The Additional Deputy Commissioner in his first appellate order dated 26.5.2000 has held that the Circle Officer failed to take note of the objection filed by the petitioner. The Additional Deputy Commissioner in his order although has referred to the family settlement, but refused to accept the same on the ground that there is no signature of the people of the village or scribes. He in his appellate order without returning any conclusive finding on the said bibhag nama discarded the same. 8. The learned Board of Revenue in its impugned judgment and order dated 14.12.2005 has appreciated the matter in detail including the feet of division of the property between the two brothers through amicable settlement. As recorded in the said judgment and order, Late Tarun got his share of the land at Village-Manaha Kachari, Belguri and Barampur, while Late Nagendra got his share at Upper Dimoria and Dakshin Dimoria They were enjoying their respective shares of the land peacefully and without any hindrance. As per the said, arrangement, Nagendra i.e. the father of the respondents having had no land at Manaha Kachari, left for Dimoria and started living there permanently with his family by occupying his share of land. Tarun never came to Dimoria as he did not have any land there. 9. Although Tarun got his name mutated in his share of land at Manaha Kachari to which Nagendra give his consent, but for the some reason, Nagandra did not got his name mutated in his share of land although Tarun had given consent in writing for the purpose. Thus so far as Nagendra's share at Dimoria is concerned, names of both the brothers i.e. Nagendra and Tarun remained in the revenue record. Some portion of the land was also sold after death of Nagendra. The respondents have been possessing their share of the land at Village-Dimoria and accordingly got heir names mutated raising objection to which, the petitioners approached the Circle Officer. The Circle Officer after appreciating the report of the lat Mondal and after hearing both the parties and going through the relevant records rejected the objection. As to what happened thereafter has been noted above. The Circle Officer after appreciating the report of the lat Mondal and after hearing both the parties and going through the relevant records rejected the objection. As to what happened thereafter has been noted above. Initially the appeal preferred by the petitioners before the learned Additional Deputy Commissioner, Karnrup was rejected on the ground being barred by limitation, but on appeal vide Appeal No. 90RA(K)/96, the order was set aside on 4.6.1999 and the matter was remanded back to the Additional Deputy Commissioner for disposal on merit 11. As noted, the appeal was allowed by the Additional Deputy Commissioner by his order dated 26.5.2005. Thereafter the respondents preferred the appeal before the Assam Board of Revenue. The learned Board of Revenue appreciating the submissions made by the learned counsel for the parties and the entire materials on record passed the impugned judgment and order. Learned Board of Revenue came to the finding on the basis of the records that the mutation in the name of the respondents was rightly allowed as both the brothers had possessed their respective land on the basis of the family settlement It has rightly been held that in absence of challenge to the family settlement in appropriate court of law, the Revenue Court has no jurisdiction to decide the validity or otherwise of the same. It has also been rightly held that as per various decisions of the Apex Court and the High Court a family settlement either registered or un-registered is admissible and valid in respect of partition of land. As Tarun got his share of the land on the basis of the family settlement, he was entitled to Mutation and there was nothing wrong in granting the same. 11. Mr. Choudhury, learned counsel for the petitioners during the course of hearing referred to the additional affidavit that was filed on 14.2.2012 enclosing therewith the copy of the amended plaint in T.S. No. 21/2007. The Title Suit was filed by the petitioners in the Court of the learned Civil Judge, Sr. Division No. 2, Kamrup at Guwahati seeking declaration of interest of the plaintiffs/petitioners over the suit land and for permanent injunction. Referring to the said plaint and the order passed therein, Mr. Choudhury, learned counsel for the petitioners submits that the family settlement being not a registered one could not have been acted upon. Division No. 2, Kamrup at Guwahati seeking declaration of interest of the plaintiffs/petitioners over the suit land and for permanent injunction. Referring to the said plaint and the order passed therein, Mr. Choudhury, learned counsel for the petitioners submits that the family settlement being not a registered one could not have been acted upon. Be it stated here that the suit filed by the petitioners raising the same issue as in the instant writ petition has been dismissed vide judgment and decree dated 6.9.2010. However, Mr. Choudhury, referring to the particular observation made in the said judgment submitted that in view of the said observation, the family settlement cannot be acted upon. In the suit, the following was the prayer (a) declaring that the plaintiff jointly have right title and interest and constructive possession over the suit land described in schedule A, B, C below of the extent of 50% along with the defendants by right of inheritance. (b) declaring that no title has flown to the defendant or their predecessors vide fraudulent, forged and illegal partition deed which is an unregistered one. (bb) declaring that the decision of the Assam Board of Revenue as to title of the parties over the suit land vide Judgment & Order dated 14.12.2005 in 68RA(K)/2000 is not tenable, lawful and binding on the parties. (c) by temporary and permanent injunction restraining the defendants from transferring the suit land and any part thereof in any way or from modifying the character and nature thereof by raising construction otherwise. (d) for any of the relief to which the plaintiff may be found to be entitled (e) For costs of the suit. 12. On perusal of the above prayer, what is seen is that there was a challenge to the bibhag nama and also the judgment of the learned Assam Board of Revenue impugned in this writ petition. Learned Court below, by the judgment and order dated 6.10.2010 dismissed the suit. In the suit, the following issues had been framed: 1. Whether there is cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the alleged unregistered deed of partition is legal, valid and binding on the parties? 4. Whether the plea of partition taken by the defendant without any registered document in support thereof is tenable? 5. Whether there is cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the alleged unregistered deed of partition is legal, valid and binding on the parties? 4. Whether the plea of partition taken by the defendant without any registered document in support thereof is tenable? 5. Whether the defendants have exclusive right, title, interest and possession over the suit land described in the schedule of the plaint? 6. Whether the plaintiff is entitled to declaration as to joint title and constructive possession over the suit land? 7. Whether the decision of the Assam Board of Revenue as to exclusive title of the defendants over the suit land vide order dated 14.12.05 is legal, tenable and valid? 8. Whether the suit property was partitioned by the predecessor of the parties as claimed by the defendants? 9. Whether the plaintiff is entitled to relief as prayed for? 10. To what other relief/reliefs the parties are entitled? 13. While answering the issue No. 2, the learned Court below recorded the following finding: Coming back to the case in hand, it is an admitted fact that the defendants are in possession of the properties in dispute, not the plaintiffs. In the event of passing a decree in favour of the plaintiffs, it will remain a paper decree. The decree prayed for by the plaintiff will never be executed. There is no quarrel with the proposition of aw that passing of a declaratory decree under section 34 of the Specific Relief Act is discretionary relief. I agree with the defendants that the plaintiffs, by failing to pray for partition of the properties and for recovery of possession of their claimed shares, failed to seek further relief as in Section 34 of the Specific Relief Act. Here the prayer for permanent injunction is not a further relief. The plaintiffs should have prayed for partition of the suit properties. But they did not do so. Under the circumstances, I agree with the defendants that the suit in the present form is not maintainable in law. I answer this issue in negative. 14. While answering the issues No. 3 and 4, learned Court below has held that the petitioners failed to discharge the burden of proof that the family settlement is a forged one. Under the circumstances, I agree with the defendants that the suit in the present form is not maintainable in law. I answer this issue in negative. 14. While answering the issues No. 3 and 4, learned Court below has held that the petitioners failed to discharge the burden of proof that the family settlement is a forged one. At the same time, it has also been held that in absence of the original partition deed, on the basis of the photocopy, the fact of partition of the suit property could not be ascertained. The issue No. 6 has been answered against the plaintiffs with the declaration that they are not entitled to a declaration as to joint title and constructive possession over the suit land. As regards the issue No. 7, the Court declined to sit on appeal over the impugned judgment passed by the Assam Board of Revenue. While answering the issues No. 9 and 10, it has been held that the suit filed by the plaintiffs is not maintainable. 15. The aforesaid judgment and order of the Court below has been referred to, to take the plea that the family settlement is not acceptable, unmindful of the fact that the same very Court has observed that the plaintiffs/petitioners themselves failed to discharge the burden of proof that the family settlement is a forged one. 16. As has been held by the Apex Court in Kale Vs. Dy. Director of Consolidation reported in (1976) 3 SCC 119 , the allegation of fraud and undue influence must first clearly be pleaded and then proved by clear and cogent evidence. The said case was also pertaining to a family settlement. As in the instant case, in the said case also, the parties remained in possession of the properties allotted to them and paid land revenue to the Government. The High Court took the view that the settlement was not acceptable, as it was not registered. Applying the plea of estoppel in respect of operation of the family settlement, the Apex Court also dealt with the object of the family settlement which is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family and create hatred and bad blood between the various members of the family. 17. 17. The Courts have always leaned in favour of upholding a family arrangement instead of disbelieving the same on technical or trivial grounds. In this connection, paragraph 19 of the said decision is quoted below: 19. Thus it would appear from a review of the decisions analyzed above that the Courts have taken a very liberal and broad view of the validity of the family settlement and have always tried to uphold it and maintain it. The central idea in the approach made by the Courts is that if by consent of parties a matter has been settled, it should not be allowed to be re-opened by the parties to the agreement on frivolous or untenable grounds. 18. The petitioners having acted upon the family settlement by taking their share of the land are now estopped from raising the plea of invalidity of the family settlement. In this regard, paragraphs 33, 40, 42 and 44 of the said judgment are worth quoting. 33. Finally the respondents never took any objection before any of the Courts that no family arrangement had as a matter of fact taken place between the parties. The only objection centered round the admissibility of the document said to have embodied the terms of the compromise. This contention, therefore, cannot be accepted. 40. In Ram Charan Das's case (supra) while dwelling on the point of the family arrangement this Court observed as follows: It seems to us abundantly clear that this document was in substance a familiar arrangement and, therefore, was binding on all the parties to it. Moreover it was acted upon by them, x x x x In our opinion the document on its face appears to effect a compromise of the conflicting claims of Gopinath on the one hand and the pre sent plaintiff Ram Charan Das and his brothers on the other to the estate of Kanhaiyalal. At p. 851 this Court pointed out that as the settlement consisted of recognition of the right asserted by each other none of the parties could be permitted to impeach it thereafter. 42. Finally in a recent decision of this Court in S. Shanmugam Pillai case (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows: Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. 42. Finally in a recent decision of this Court in S. Shanmugam Pillai case (supra) after an exhaustive consideration of the authorities on the subject, it was observed as follows: Equitable principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence. The have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope. As observed by this Court in T.V.R. Subbu Chettys Family Charities' case (supra), that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open. In these circumstances there can be no doubt that even if the family settlement was not registered it would operate as a complete estoppel against respondents 4 & 5. Respondent No. 1 as also the High Court, therefore, committed substantial error of law in not giving effect to the doctrine of estoppel as spelt out by this Court in so many cases. The learned counsel for the respondents placed reliance upon a number of authorities in Rachcha v. Mt. Mendha, (1) Chief Controlling 6 Revenue Authority v. Smt. Satyawati Sood and others (2) and some other authorities, which, in our opinion have no bearing on the issues to be decided in this case and it is therefore not necessary for us to refer to the same. 44. In view of our finding that the family settlement did not contravene any provision of the law but was a legally valid and binding settlement in accordance with the law, the view of Respondent No. 1 that it was against the provisions of the law was clearly wrong on a point of law and could not be sustained. Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. Similarly the view of the High Court that the compromise required registration was also wrong in view of the clear fact that the mutation petition filed before the Assistant Commissioner did not embody the terms of the family arrangement but was merely in the nature of a memorandum meant for the information of the Court. The High Court further in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose of showing the nature and character o possession of the parties in pursuance of the family settlement and for the purpose of applying the rule of estoppel which followed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder and others v. Siya Ram and another (1) it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title. 19. The Assam Board of Revenue having appreciated the relevant records and passed the impugned judgment and order, this Court exercising the power of judicial review under Article 226 of the Constitution of India cannot sit on appeal over the findings recorded by it so as to return another finding. It has rightly been held that the Additional Deputy Commissioner, Karnrup while entertaining the appeal filed by the petitioner ought not to have rightly interfered with the findings recorded by the Circle Officer based on the materials on record. The fact of the matter is that the parties acted upon the family settlement and they got their respective shares flowing from the said family settlement. The petitioners without stating anything about their own share derived from the said family settlement cannot call in question the mutation of the respondents in respect of their share of the land flowing from the said family settlement. The petitioners without stating anything about their own share derived from the said family settlement cannot call in question the mutation of the respondents in respect of their share of the land flowing from the said family settlement. It is immaterial as to whether the family settlement is a registered one or not once it is found that the same was acted upon by the parties. For all the aforesaid reasons, I do not find any merit in the writ petition and accordingly it is dismissed leaving the parties to bear their own costs. Registry shall send down the case records to the Assam Board of Revenue along with a copy of this judgment and order.