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2014 DIGILAW 74 (GAU)

RUMA MONI DAS v. ASSAM BOARD OF REVENUE

2014-01-21

HRISHIKESH ROY

body2014
ORDER Heard S.J. Sarma, the learned Counsel appearing for the petitioner. The respondent No.2 who is the main contesting party is represented by learned advocate Mr. P.C. Goswami. 2. The petitioner purchased land measuring 1 Katha 5 Lechas through registered Sale Deed No.936/2002 dated 8.2.2002 from Satyajeet Borthakur and she immediately secured possession of the purchased property from the hand of the vendor. Previously the vendor Satyajeet Borthakur had purchased this land from Surendra Nath Bhattacharjee and Pabindra Nath Bhattacharjee through the Sale Deed dated 2.4.2001 and the vendor got mutation of the purchased land, prior to executing the Sale Deed in favour of the petitioner. 3. The land purchased by the petitioner measures 1 Katha 5 Lechas and is covered by Dag No.331 (old). This land under Dag No.331 was amalgamated with land of Dag No.332 in the year 1995 into a consolidated Dag No.2197 (new) covered by Patta No.564 (new) in village Odalbakra in Beltola Mouza of Kamrup District. The conjoint lands of Dag No.332 was owned by siblings (cousin) Kailash Ch. Sarma and Lt. Gopal Priya Devi. The respondent No.2 Kailash Ch. Sarma purchased 1 Katha 10 Lechas of land of Dag No.332 (old) from Gopal Priya Devi through Sale Deed dated 20.9.2001. The total land within Dag No.332 measured 2 Kathas and according to the petitioner, the respondent No.2 couldn’t secure possession of his purchased land. 4. The respondent No.2 filed T.S. No.9/2002 and sought declaration of right, title and interest and recovery of possession of the land measuring 1 Katha 10 Lechas as described in Scheduled-A to the plaint. Since the identification of the land is relevant, the Schedule-A land as described in the plaint in the T.S. 9/2002 filed by Kailash Ch. Sarma (respondent NO.2) is extracted hereinbelow : “Schedule-A A plot of land measuring 1 Katha and 10 Lechas covered by Dag No.332 K.P. Patta No.112 of Village Odalbakra, Mouza-Beltola, P.S. Dispur in the district of Kamrup, Assam bounded as under : East : Road West : Rudreswar Sama/S.N. Bhattacharyya North : Shri Pradip Bhyan South : Private Road.” 5. For the purchased land of Dag No.331 (old), the petitioner applied for mutation on the strength of his Sale Deed and possession and 1 Katha 5 Lechas land in a portion of Dag No.2197 (new), Dag No.331 (old) was mutated to the applicant by the Assistant Settlement Officer on 21.8.2002. For the purchased land of Dag No.331 (old), the petitioner applied for mutation on the strength of his Sale Deed and possession and 1 Katha 5 Lechas land in a portion of Dag No.2197 (new), Dag No.331 (old) was mutated to the applicant by the Assistant Settlement Officer on 21.8.2002. Claiming to be aggrieved by the correction of the Revenue record in favour of the petitioner, the respondent No.2 Kailash Ch. Sarma applied for cancellation of mutation. 6. But the Settlement Officer through his order dated 5.10.2005 (Annexure-7) in the Misc. Case No.81/04-05 rejected the application of respondent No.2 and upheld the mutation granted to the petitioner. The revenue officer recorded the admission of the respondent No.2 that the petitioner has possession of the purchased land and that she has clear title of the mutated land on the strength of the Sale Deed dated 8.4.2002. The authority also noted that in T.S. No. 9/2002 the petitioner was not impleaded and the restoration of possession was sought by the plaintiff Kailash Ch. Sarma from the two brothers Biraj Das and Jiban Krishna Das who were the defendants in the case. It was also observed that the status quo order in the T.S. No. 9/2002 can’t apply to the land purchased by the petitioner under old Dag No.331 and accordingly it was held that since the objector (respondent No.2) doesn’t have possession his objection has no legal force. Consequently the Settlement Officer rejected the application of the respondent No.2 for cancellation of mutation and upheld the mutation granted to the petitioner. 7. The aggrieved respondent No.2 challenged the Settlement Officer’s order on mutation by filing Appeal No. 229RA(K)/2005 before the Assam Board of Revenue and through the impugned judgment dated 6.2.2007 (Annexure-8), the learned Board quashed the mutation granted to the petitioner and directed the parties to maintain status quo over the land till disposal of the T.S. No.9/2002. 8. 7. The aggrieved respondent No.2 challenged the Settlement Officer’s order on mutation by filing Appeal No. 229RA(K)/2005 before the Assam Board of Revenue and through the impugned judgment dated 6.2.2007 (Annexure-8), the learned Board quashed the mutation granted to the petitioner and directed the parties to maintain status quo over the land till disposal of the T.S. No.9/2002. 8. The petitioner questions the merit of the cancellation of mutation ordered by the learned Revenue Board by projecting that registration was granted to the petitioner for 1 Katha 5 Lechas of land purchased by her on 8.4.2002 which was covered under Dag No.331 (old) and accordingly it is argued that the respondent No.2 who purchased 1 Katha 10 Lechas of land under Dag No.332 (old) through Sale Deed dated 20.9.2001 from a separate vendor Gopal Priya Devi can’t legitimately challenge the mutation granted on land covered by Dag No.331 (old). 9. The petitioner’s advocate Mr. S.J. Sarma projects that after she purchased the land on 8.4.2002, the petitioner secured possession from the vendor Satyajeet Borthakur and since there is no allegation of encroachment against the petitioner on land of the respondent No.2 Kailash Ch. Sarma who purchased separate land under Dag No.332 (old), there can be no justification for cancelling the mutation granted to the petitioner. 10. According to the petitioner the T.S. No. 9/2002 filed by the respondent No.2 is for different land and since dis-possession was alleged in the title suit against siblings Biraj Das and Jiban Krishna Das and not against the petitioner, the merit of the Revenue Board’s judgment is being questioned by the petitioner. 11. Representing the respondent No.2, advocate Mr. P.C. Goswami in his turn argues that the petitioner has filed Review petition No.2/2007 for review of the judgment dated 6.2.2007 (Annexure-8) of the Assam Board of Revenue and accordingly it is argued that the petitioner can’t avail two forums for the same relief. 12. Under the Assam Land and Revenue Regulation, 1866 (hereinafter referred to as “the Regulation”) mutation applications are to be filed under Section 52 and the competent authority is required to consider such application after due notice to all parties. Section 53 requires the Deputy Commissioner to verify whether the applicant has legal right and possession of the land for which mutation is sought and only when these twin requirements are satisfied, mutation application can granted by the Revenue authorities. 13. Section 53 requires the Deputy Commissioner to verify whether the applicant has legal right and possession of the land for which mutation is sought and only when these twin requirements are satisfied, mutation application can granted by the Revenue authorities. 13. In the instant case, the petitioner secured legal right over the land in question through the registered Sale Deed dated 8.4.2002 executed by the vendor Satyajeet Barthakur and she secured possession of the purchased land from the vendor himself. But on the other hand, the respondent No.2 who purchased a separate plot of land measuring 1 Katha 10 Lechas on 20.9.2001 from Gopal Priya Devi had alleged dispossession in his T.S. No.9/2002 and therefore the respondent No.2 was certainly not in possession of the land purchased by him under Dag No.332 (old). Therefore he doesn’t have legal right to apply for cancellation of mutation granted to the petitioner of her purchased land. 14. As earlier stated the lands under old Dag Nos.331 and 332 was consolidated in the year 1995 into a single Dag i.e. Dag No.2197 and in the new Dag, about 8 Katha land is shown in the Revenue record. The mutation granted to the petitioner was for a portion of the consolidated land to the extent of 1 Katha 5 Lechas land of Dag No.2197. Interestingly the respondent No.2 in his application for cancellation doesn’t claim any right over the land purchased by the petitioner nor does he make any allegation about forcible occupation/dispossession against the petitioner. 15. As can be seen from the Schedule-A of the plaint in the T.S. No.9/2002 as extracted above, the plaintiff/respondent No.2 sought declaration of title and restoration of possession on 1 Katha 10 Lechas land covered by Dag No.332 (old) and there is not even a whisper of a claim on land covered by Dag No.331 (old), in occupation of the petitioner in pursuant to the Sale Deed dated 8.4.2002 executed by Satyajeet Borthakur. Therefore the petitioner has nothing to do with the T.S. No. 9/2002 filed by the respondent No.2 where forcible dispossession is alleged against the defendants Biraj Das/Jiban Krishna Das. 16. Therefore the petitioner has nothing to do with the T.S. No. 9/2002 filed by the respondent No.2 where forcible dispossession is alleged against the defendants Biraj Das/Jiban Krishna Das. 16. Having noticed that the petitioner is not a party in the T.S. No.9/2002 and no relief is claimed against her by the plaintiff (respondent No.2), it is difficult to comprehend as to why the learned Board of Revenue ordered cancellation of mutation granted to the petitioner, for the pendency of the T.S. No. 9/2002 filed by the respondent No.2 seeking restoration of possession of another parcel of land. 17. As regards the petitioner’s Review Petition No. 2/2007 pending before the Assam Revenue Board which seeks review of the impugned judgment dated 6.2.2007, it may be noted that the Review Application was filed on 6.3.2003 and only thereafter, the present case was filed on 10.4.2007 in this Court. Therefore having regard to the ratio of the decision in M/s Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh reported in AIR 1964 SC 1372 , I am of the view that the petitioner’s Review Application when it was filed, could have been entertained by the Revenue Board. But it appears that because of the pendency of the present case, the Review Application No.2/2007 was stayed but the same is still pending in the learned Board without a decision on merit. 18. In view of the above discussion, I am of the opinion that the learned Assam Board of Revenue should not have ordered for cancellation of mutation without examining whether the mutated land under Dag No.331 (old) has any connection with restoration of possession sought by the respondent No.2 in the T.S. No.9/2002 of another parcel of land covered by Dag No.332 (old). Since the petitioner was not even a party to the suit filed by respondent No.2, cancellation of mutation on the ground of pendency of the Title Suit ordered by the learned Board is found to be unjustified and accordingly the impugned judgment dated 6.2.2007 (Annexure-8) in the Case No.229 RA(KA)/2205 is held to be unwarranted. The learned Board failed to take into account that the petitioner was not a party in the T.S. No.9/2002 filed by the respondent No.2 and moreover no relief was claimed against the petitioner in the said suit. The learned Board failed to take into account that the petitioner was not a party in the T.S. No.9/2002 filed by the respondent No.2 and moreover no relief was claimed against the petitioner in the said suit. Therefore I am of the view that injustice was done to the petitioner and consequently her Review Application No.2/2007 is ordered to be considered on merit by the Revenue Board. While re-examining the matter, the learned Board will examine whether the mutation was granted to the petitioner by adhering to the requirement of Section 53 of the Regulation or in other words whether the petitioner has legal title and was in possession of the purchased land. Upon due consideration affirmative order on mutation may be passed. With this direction, the case is disposed of without any order on cost. 19. Since this order is dictated in open Court, the petitioner and the respondent No.2 through their respective lawyers have agreed to appear before the Assam Revenue Board on 17.2.2014 and accordingly Notice is not required to be sent to the parties for the next part of the proceeding before the learned Board.