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2015 DIGILAW 636 (GAU)

Sampe Bala Kachari v. Nareswar Kachari

2015-05-26

A.K.GOSWAMI

body2015
JUDGMENT Heard Mr. J. Deka, learned counsel for the appellants. Also heard Mr. M. U. Mahmud, learned counsel appearing for the respondents. 2. By way of preface, before going into the dispute raised in this appeal in detail, it will be appropriate to make a passing reference to the dispute. One Sukdhan Kachari was the owner of 63 Bigha 3 Katha 18 Lecha of land in various Dags in village Raumari Part-I under Dudhnoi Circle. Out of this land, 6 Bigha in Dag No. 18 was taken by the Government for construction of “Dong” (embankment). Sukdhan Kachari had left behind two sons, namely, (i) Dhwajendra Kachari and (ii) Nareswar Kachari. Both of them are also no more. The dispute, in the present case, relates to partition of properties left behind by Sukdhan Kachari. At the time of institution of the suit, however, Nareswar Kachari, the younger brother, was alive. 3. After some hearing of the Second Appeal had taken place, learned counsel for the parties had submitted that having regard to the nature of the dispute, they would explore the possibility of arriving at an amicable settlement of the dispute and that they would elicit response from their respective clients in this regard. Subsequently, favourable response having been received from the parties, the case was referred to the Gauhati High Court Mediation Centre and the parties were asked to appear on 05.05.2015 at 1-15 P.M. The Second Appeal was fixed on 20.05.2015, by which time the Mediator was directed to submit his report. The Mediator has submitted report stating that the matter could not be settled at that stage. Accordingly, the appeal is now heard on merits. 4. This appeal is directed against the judgment and decree dated 25.11.2002 passed by the learned Civil Judge, Goalpara, in Title Appeal No. 2/2002, allowing the appeal of the defendant and reversing the judgment and decree dated 24.12.2001 passed by the learned Civil Judge (Junior Division) No. 1, Goalpara, in Title Suit No. 16/2000. 5. By an order dated 31.01.2003, this Second Appeal was admitted to be heard on the following substantial questions of law: “(i) Whether the judgment and decree dated 25.11.2002 passed by the Senior Civil Judge and Asstt. Sessions Judge, Goalpara, passed in Title Appeal No. 2 of 2002 is hit by Order XLI Rule 31 of the Code of Civil Procedure? By an order dated 31.01.2003, this Second Appeal was admitted to be heard on the following substantial questions of law: “(i) Whether the judgment and decree dated 25.11.2002 passed by the Senior Civil Judge and Asstt. Sessions Judge, Goalpara, passed in Title Appeal No. 2 of 2002 is hit by Order XLI Rule 31 of the Code of Civil Procedure? (ii) Whether the learned Appellate Court below erred in law in not considering that the record of rights as provided under Sections 40 and 41 of the Assam Land and Revenue Regulation, 1886, shall always be deemed to be the correct unless the contrary is proved? (iii) Whether the learned Appellate Court below erred in law in not giving due weightage to the presumption which is attached to the record of rights?” 6. The plaintiffs are the wife of Late Dhwajendra Kachari and his eight daughters. The pleaded case of the plaintiffs is that in the year 1976, both the brothers had mutually partitioned the properties left behind by Sukdhan Kachari and, consequent upon the said partition, the land covered by Schedule-A fell in the share of the predecessor-in-interest of the plaintiffs and the land described in Schedule-B fell in the share of the defendant. The plaintiffs had been possessing the land described in Schedule-A and Kacha Patta was also issued in respect of the Schedule-A land. Both the brothers continued to live in the same “Bhiti” land covered by Dag No. 141, which comprises of an area of 5 Bigha 2 Katha 18 Lecha and is part of Schedule-A. The understanding was that the defendant would vacate the possession of the said “Bhiti” land whenever requested and, as the plaintiffs’ family had no male member, the defendant was not asked to vacate the possession of the “Bhiti” land. However, in the last part of 1997, the defendant filed an application, registered as Misc. Case No. 2/97-98, claiming half of the share of the land described in Schedule-A. Confronted with such a situation, the plaintiffs demanded the defendant to vacate possession of the “Bhiti” land described in Schedule-C, but, instead of vacating the Schedule-C land, attempt was made by the defendant to occupy some more land and to construct new houses. Case No. 2/97-98, claiming half of the share of the land described in Schedule-A. Confronted with such a situation, the plaintiffs demanded the defendant to vacate possession of the “Bhiti” land described in Schedule-C, but, instead of vacating the Schedule-C land, attempt was made by the defendant to occupy some more land and to construct new houses. Accordingly, the plaintiffs filed the suit praying for a declaration that the plaintiffs have right, title and interest over the land described in Schedule-A; for a declaration that the plaintiffs have right, title and interest over the land covered by Dag No. 141; for khas possession of the area of ½ Bigha of land occupied by the defendant in Dag No. 141, which is Schedule-C land; for demolition of the houses of the defendant; for permanent injunction restraining the defendant from claiming any interest over the land described in Schedule-A and from interfering with the peaceful possession of the plaintiffs over the land described in Schedule-A; for cost of the suit and for any other relief(s) to which the plaintiffs are entitled to in law and equity. 7. The defendant filed written statement by stating that Sukdhan Kachari was the owner and possessor of land measuring 63 Bigha 3 Katha 18 Lecha and that out of the said land, 6 Bigha was taken for construction of “Dong”. That Sukdhan Kachari had left behind two sons was admitted. It was stated that 5 Bigha 2 Katha 18 Lecha is the “Bhiti” land and the rest of the land are all “Sali” land. The partition of 1976, as pleaded by the plaintiffs, was denied, but it is also stated that in the month of February, 1996, prior to the death of his elder brother, an amicable partition had taken place according to which all the Dags were to be partitioned equally. Dhwajendra Kachari used to cultivate Schedule-A land and he used to cultivate Schedule-B land and, thereafter, the produce yielded was shared by both the parties equally. It is stated that his name as well as the name of his elder brother was mutated in respect of the Schedule-A land, but, subsequently, without his knowledge, his name was struck off showing his alleged consent. It is stated that his name as well as the name of his elder brother was mutated in respect of the Schedule-A land, but, subsequently, without his knowledge, his name was struck off showing his alleged consent. He was unaware of the striking-off his name till 1997 and, coming to know about the same, he filed application before the Settlement Officer claiming right, title and possession over all the Dags of Schedule-A. He stated that both the brothers were living in the “Bhiti” land measuring 5 Bigha 2 Katha 18 Lecha. However, he has denied that there was any agreement to vacate the Schedule-C land as and when requested by the plaintiffs. Attempt to construct a new house in Schedule-C land was admitted by him. He also stated that he was agreeable to give up half portion of each Dag described in Schedule-B land. According to him, both the brothers are entitled to 50% of land in each Dag of Schedule-A and Schedule-B including the “Bhiti” land as shown in Schedule-A. 8. On the basis of the pleadings, the following issues came to be framed: “(i) Whether the suit is maintainable in its present form? (ii) Whether the suit has any cause of action? (iii) Whether the suit is barred by limitation? (iv) Whether the suit is bad for non-joinder of necessary parties? (v) Whether the lands left by Sukdhan Kachari were amicably partitioned amongst his sons Dhwajendra Kachari and the defendant? (vi) Whether the plaintiffs are the owner of the land described in Schedule-A? (vii) Whether the plaintiffs have right, title and interest over the Dag No. 141 of village Raumari part-I? (viii) Whether the plaintiff is entitled to khas possession of ½ Bigha of land as stated in paragraph 3 of the prayer in the plaint? (ix) Whether there was partition between Dhwajendra Kachari and the defendant in respect of the lands described in Schedule-A and Schedule-B? (x) Whether the plaintiffs are entitled to the decree and other relief as claimed for?” 9. During trial, the plaintiffs examined 6 witnesses and the defendant examined only himself. Out of the witnesses examined by the plaintiffs, 3 were Land Records staff examined in the form of PW4, PW5 and PW6. One of the plaintiffs was examined as PW1. PW2 and PW3 were neighbours of the plaintiffs. 10. During trial, the plaintiffs examined 6 witnesses and the defendant examined only himself. Out of the witnesses examined by the plaintiffs, 3 were Land Records staff examined in the form of PW4, PW5 and PW6. One of the plaintiffs was examined as PW1. PW2 and PW3 were neighbours of the plaintiffs. 10. On the basis of the evidence on record including Ext.-1 and Ext.-2, “Chitha” and Ext.-3, “Kacha Patta”, the learned trial Court came to the conclusion that there was partition in between the parties in the year 1976 and the same was also reflected in the revenue records. The crucial issue relating to partition having been decided in favour of the plaintiffs, other consequential issues were also decided in favour of the plaintiffs. 11. The learned lower appellate Court, however, on the basis of the evidence adduced by the parties and taking note of the fact that there was no petition to delete or include the name of the plaintiffs or the defendant in the revenue records, held that the properties left behind by Sukdhan Kachari was not amicably partitioned. The lower appellate Court also noted that the correction of the Draft “Chitha” was challenged by the appellant before the revenue authority. With this conclusion, the appeal was allowed and the judgment of the learned trial Court was set aside. 12. Mr. Deka has submitted that the impugned judgment of the learned lower appellate Court, which is a judgment of reversal, does not meet the requirements of Order XLI Rule 31 CPC inasmuch as no reason has been assigned by the learned lower appellate Court while upsetting the findings recorded by the learned trial Court. In this connection, he has relied on a judgment of this Court in the case of Rualkhumi vs. Lalvuani and Ors., reported in 2011 (5) GLT 291. He has submitted that the learned lower appellate Court totally ignored the provisions of the Assam Land and Revenue Regulation, 1986 (for short, “ALLR’), while disregarding the entries in the revenue record solely on the ground that there was no written application filed. He has submitted that it is not a condition precedent that there has to be an application for recording names in the record of rights in case of inheritance and/or partition. He has submitted that it is not a condition precedent that there has to be an application for recording names in the record of rights in case of inheritance and/or partition. He submits that under Section 53-A of the ALLR, registration of the name of the person can be made in the record of rights even without an application and the learned lower appellate Court completely ignored the aforesaid position. By placing reliance on Sections 40 and 41 of the ALLR, the learned counsel submits that the record of rights is founded on the basis of actual possession and though entries of mutation may not be the basis of title, the same cannot be totally ignored and must receive due consideration. It is further submitted that there is always a presumption under Section 41(2) that entries in the record of rights shall, until the contrary is proved, be deemed to be correct. In this connection, he has also drawn the attention of the Court to Rule 211 and Rule 214 of the Assam Land Records Manual. 13. Mr. Deka has submitted that PW1 and, more particularly PW6, on the basis of official documents had deposed that the defendant himself consented by putting his signature in the record of rights for deletion of his name from the Dag Nos. forming part of Schedule-A and, correspondingly, the predecessor-in-interest of the plaintiffs had also consented to delete his name in respect of the lands in the Dag Nos. falling in Schedule-B way back in the year 1976. Against such evidence, there was no cross-examination denying his signature in the revenue records. There was also no rebuttal evidence of the defendant and, despite this overwhelming evidence on record, the learned lower appellate Court recorded the finding that there was no partition of the property left behind by Sukdhan Kachari. It is submitted that the defendant himself had acknowledged that his name was appearing in Schedule-B and that of his elder brother in Schedule-A. It is further submitted by him that the learned lower appellate Court did not even advert to Exts.-1, 2 and 3 on which reliance was placed by the learned trial Court while decreeing the suit. It is submitted that the defendant himself had acknowledged that his name was appearing in Schedule-B and that of his elder brother in Schedule-A. It is further submitted by him that the learned lower appellate Court did not even advert to Exts.-1, 2 and 3 on which reliance was placed by the learned trial Court while decreeing the suit. The observation of the learned lower appellate Court that the defendant had challenged the mutation is also not factually incorrect inasmuch as the defendant had merely demanded half share of the Schedule-A land without saying anything about the Schedule-B land. Mr. Deka has relied on the cases of Karewwa and Others vs. Hussensab Khansaheb Wajantri and others, reported in AIR 2002 SC 504 and Amiya Bala Dutta vs. Mukut Adhikari, reported in (1999) 1 GLR 229 . 14. Mr. Mahmud, learned counsel for the respondents, on the other hand, supports the impugned judgment of the learned lower appellate Court. It is submitted by him that the crux of the matter was as to whether there was a partition in between the parties in the year 1976 in the manner as suggested by the plaintiffs. It was the most pivotal issue and a decision on the said issue determines the fate of the plaintiffs, he submits. 15. Mr. Mahmud submits that on consideration of the materials available on record, the learned lower appellate Court had concluded that there was no partition of the properties in question and, in that view of the matter, there was no real necessity for the learned lower appellate Court to discuss the other issues in detail. Accordingly, he submits that it cannot be said that the judgment of the learned lower appellate Court is vitiated in view of the provision contained in Order XLI Rule 31 CPC. He has argued that PW2 and PW3 did not support the case of PW1 with regard to the partition in the year 1976. That apart, it was pleaded in the written statement that the elder brother of the defendant had, without any notice to him, mischievously and fraudulently shown alleged consent by the defendant while striking out his name from the records of the Dags, which form a part of Schedule-A and, therefore, no cognizance can be taken with regard to the entries in Ext.-1 and Ext.-2. It is also submitted by him that the plaintiffs have to succeed on the strength of their own case and they cannot take the benefit of any weakness in the case projected by the defendant and, in that perspective, the plaintiffs having failed to prove their case, the learned lower appellate Court was justified in allowing the appeal and setting aside the judgment of the learned trial Court. He has assiduously argued that the present case does not portray any perversity in the appreciation of the evidence on record and, therefore, this Court, in exercise of powers under Section 100 CPC, may not interfere with the judgment of the learned lower appellate Court. 16. I have considered the submission of the learned counsel for the parties and have perused the materials on record. 17. PW1, who is plaintiff No. 8, had stated in her evidence that there was a partition in the year 1976 and the land in 4 Dags had fallen in the share of her father and Schedule-B, containing 5 Dags, had fallen in the share of her uncle. She had exhibited “Chitha” as Ext.-1 and Ext.-2 as well as a “Kacha Patta” as Ext.-3. She had denied the suggestion in her cross-examination that because of her father being the elder brother, he had, without any information to her uncle, mutated the names in Ext.-1 and Ext.-2. In her evidence, she had categorically stated that Schedule-B land was being occupied by the defendant. 18. PW2 had deposed that though he was not present at the time of the partition, he had learnt that in the year 1976 a partition had taken place on the basis of ‘Dags’. He had also deposed that the plaintiffs had got 4 Dags and that the defendant was staying in the same place where he had been residing earlier. In his cross-examination, PW2 had stated that apart from the 5 Bigha of land, there was also 1 Bigha of “Bhiti” land, where nobody resides. 19. PW3 deposed that the defendant also got “Bhiti” land in a different Dag, measuring about 1 Bigha. He had also stated that the predecessor of the plaintiffs had got land in 4 Dags and the defendant had his share in 5 Dags. 19. PW3 deposed that the defendant also got “Bhiti” land in a different Dag, measuring about 1 Bigha. He had also stated that the predecessor of the plaintiffs had got land in 4 Dags and the defendant had his share in 5 Dags. In his cross-examination, he had reiterated that the partition had taken place in the year 1976 and that the plaintiffs had got about 27 Bigha of land. 20. PW4 had deposed in detail on the basis of the documents brought by him, on receipt of summon, as to which Dag contains how much of land and in whose name. The “Chitha” was in operation from 1976. However, in his cross-examination, he stated that he is not aware as to how the land had been mutated in the name of Dhwajendra Kachari and Nareswar Kachari. 21. PW5 has clearly stated in his deposition that Schedule-A land was in the name of Dhwajendra Kachari since before 1985 and that of Schedule-B in the name of Nareswar Kachari since before 1985. 22. PW6 deposed on the basis of official documents. In his evidence, he had categorically stated that in respect of Dags in Schedule-A, Nareswar Kachari had made an endorsement in writing that he had no claim over such Dags. Similarly, in respect of the land in Dags mentioned in Schedule-B, Dhwajendra Kachari had stated in writing that he had no claim on the aforesaid Dags. He made it very clear that he was deposing on the basis of records and not from his personal knowledge. In his cross-examination, he stated that he had no personal acquaintance with Dhwajendra and Nareswar and that he had not seen the writings and records personally as he was not in service at that relevant period. 23. DW1 in his evidence stated that there was a partition on 14.05.96 and that he and his elder brother are entitled to 50% share of the properties left behind by his father. In cross-examination, he had admitted that residential land (“Basti” land) measuring 1 Bigha 7 Lecha is included in Schedule-B. 24. From the evidence of the witnesses adduced by both the parties, it appears that Dag Nos. 141, 143, 175 and 18 had fallen in the share of the predecessor-in-interest of the plaintiffs. Out of the aforesaid land, Dag No. 141 is “Basti” land (“Bhiti” land) measuring 5 Bigha 2 Katha 18 Lecha. From the evidence of the witnesses adduced by both the parties, it appears that Dag Nos. 141, 143, 175 and 18 had fallen in the share of the predecessor-in-interest of the plaintiffs. Out of the aforesaid land, Dag No. 141 is “Basti” land (“Bhiti” land) measuring 5 Bigha 2 Katha 18 Lecha. Schedule-B comprises of Dag Nos. 1, 40, 238, 245 and 140 out of which Dag No. 140 is “Basti” land measuring 1 Bigha 7 Lecha. 25. Ext.-1 relates to Dag Nos. 141 and 143. Ext.-2 relates to Dag No. 18 and 175. In Column-3 of the said exhibits, initially, on the death of Sukdhan, the names of Dhwajendra and Nareswar were mutated. Subsequently, in Column-4, it was recorded that in view of partition, name at Sl. No. 2 (Nareswar) is deleted. In view of the deletion of the name of Nareswar in respect of each of the Dags, Nareswar had written that he had no share in the said Dags and that the name of Dhwajendra be recorded. Ext.-6 is “Chitha” in respect of Dag No. 140, which had fallen in the share of the defendant and in respect of the said Dag, Dhwajendra had written that he had no share in the said Dag and that after deletion of his name, the name of Sl. No. 2 (Nareswar) be recorded. Ext.-3 is a “Kacha Patta” containing 4 Dags in respect of Schedule-A land. Significantly, it is noticed no challenge was made by the defendant in respect of his aforesaid signatures appearing in Ext.-1 and 2 from 30.03.76. Even in cross-examination of PW1 and PW6, no suggestion was given that signatures appearing in Ext.-1 and Ext.-2 are not his signatures. The only conclusion, in the circumstances, that can be drawn is that the defendant had consented for deletion of his name in the Dags forming part of Schedule-A consequent upon a partition in the year 1976. The evidence of PWs 2 and 3 is also pointer to the fact that there was partition in the year 1976. They might not be present at the time when the actual partition was effected, but that will not be of any consequence. The defendants had not adduced any evidence to buttress his contention that though Dhwajendra was in possession of Schedule-A and he in Schedule-B land, they had been sharing the produce grown over the land. They might not be present at the time when the actual partition was effected, but that will not be of any consequence. The defendants had not adduced any evidence to buttress his contention that though Dhwajendra was in possession of Schedule-A and he in Schedule-B land, they had been sharing the produce grown over the land. In his written statement, the defendant had stated that he was, generally, in possession of Schedule-B land and this goes to show that there was a partition based on which he started possessing the Schedule-B land. Though it was pleaded in the written statement that there was no partition in 1976 but partition took place the year 1996, there is no acceptable evidence to that effect. The defendant has not examined any witness other than himself. The lower appellate Court did not even advert to Exts.-1, 2 and 3 although the learned trial Court relied on the aforesaid exhibits to a great extent in coming to the conclusion that there was a partition of the properties in between the two brothers in the year 1976. 26. As held by this Court in Rualkhumi (supra), the first Appellate Court is required to independently assess the evidence on record. There is omission on the part of the learned lower appellate Court to advert to the material evidence on record and, without considering the import of such exhibits, recorded the finding that there was no partition. 27. Section 40 of the ALLR stipulates that the settlement officer shall frame for each estate a record of rights in the prescribed manner. Section 41 of the ALLR provides that entries in the record made under section 40 shall be founded on the basis of actual possession and all disputes regarding such entries, whether taken up by the Settlement Officer on his own motion or on the application of a party concerned shall be investigated and decided by him on that basis and all persons not in possession, but claiming the right to be so, shall be referred by him to the proper Court. It is further provided that every entry in the record of rights shall, until the contrary is proved, be presumed to be correct. 28. It is further provided that every entry in the record of rights shall, until the contrary is proved, be presumed to be correct. 28. This Court in Amiya Bala Dutta (supra) had held that the entries shall always deemed to be correct unless the contrary is proved and that presumption, which is attached to the record of rights under Section 40 and 41, must be given due weightage. It was also held that mutation entries may not be the basis of title and, yet, such entries cannot be brushed aside and that it must receive due consideration at the hands of the court. It must be ascertained that the mutation entries were done properly. If it is found that the mutation entries were not done properly and/or if it is collusive and fraudulent, such mutation entries will not create any right. 29. It bears repetition to state that there was no challenge to the mutation entries in the record of rights by the defendant. The presumption that is attached with the entries in the record of rights that the entries are correct is not at all displaced. The undisputed signatures of the defendant appearing in four places of Ext.-1 and Ext.-2 cannot be glossed over; rather, it gives credence to the case of the plaintiffs that there was partition in the year 1976. 30. It will also be appropriate at this stage to take note of Section 53-A of the ALLR, which is a part of Part-B under the head “Registration” and which commences from Section 50. Section 50 casts a liability upon the persons succeeding to any estate, or share in an estate, whether by transfer or inheritance, obtaining possession of the same, to give information of his succession. Section 53-A confers power on the Deputy Commissioner to direct registration on information received otherwise than through application. Notwithstanding anything contained in sections 50 to 53, where the Deputy Commissioner has received information, otherwise than through an application, of any such taking of possession or assumption of charge as is referred to in section 50, he may make an order directing the registration of the name of the person so taking possession or assuming charge after such verification and in such manner as prescribed therein. Section 53-A(2) provides that any person aggrieved by an order directing registration under this section, may, within a period of 3 years of the date of such order, apply to the Deputy Commissioner to have such order set aside and on receipt of such application, the Deputy Commissioner shall cancel the registration and then proceed to publish the notice and hold inquiry as prescribed by section 52 and 53 of ALLR, as if an application for registration had been received from the person whose name had been registered. 31. Majority of the transfers being undisputed, Rule 211 of the Assam Land Records Manual mandates that the Sub-Deputy Collector should endeavour to suit the convenience of the people and to minimise the office and process serving work by doing as much mutation work as possible in the village itself. He is required to cover the undisputed changes in possession noted in Column 8 of the recorder’s Chitha, ascertaining from each transferor, if present, if there is any objection to the change. If a transferor is absent, it will be safe to effect mutation if everyone of that village present agrees and on production of registered deeds by the transferee. But, in case of any doubt, as regards possession and prima facie title, the Sub-Deputy Collector shall not effect mutation. In cases of inheritance, the absence of any objection, on the part of those present, to the names of the heirs entered by the recorder, will be sufficient to justify the effecting of mutation by the Sub-Deputy Collector. It is also acknowledged that some mistakes might now and then occur in the summary enquiries, but safeguard has been provided by Section 53-A(2) of the ALLR to any person aggrieved by such summary order of mutation. Rule 214 of the Assam Land Records Manual also provides that the Sub-Deputy Collector may, at the same time, give effect to the undisputed cases of partition the survey of which has already been carried out by the recorder. If any of the parties to the partition objects, the Sub-Deputy Collector will cancel the recorder’s survey and refer the parties to court. If any of the parties to the partition objects, the Sub-Deputy Collector will cancel the recorder’s survey and refer the parties to court. It also provides that partition can be effected in two ways, either by (a) transferring a Dag or Dags or portion or portions thereof from the patta to another with the consent of the parties or by (b) issuing new patta where there are no pattas to which partitioned Dag or Dags can be added. 32. In Karewwa (supra), the Apex Court has laid down that correctness of an entry in revenue record cannot be rebutted by a mere statement in the written statement. 33. As has been noted earlier, no challenge was made and no suggestion was made to the effect that the procedures prescribed under the ALLR and the Assam Land Records Manual were not followed and, therefore, the entries in Exts.-1, 2 and 6, etc. are of no consequence. Civil suits are to be decided on the preponderance of possibilities. Mere statement of fact in the written statement being not a rebuttal of presumption of correctness of an entry in the revenue record, it was necessary for the defendant to rebut the presumption by leading evidence. The defendant has not led any evidence to show that the entries in the revenue record are incorrect and, therefore, under the law, the presumption is that the entries are correct. There are materials on record suggesting that the partition had taken place in the year 1976 and there was no dispute till the elder brother was alive. Long 20 years had gone by and, immediately after death of the elder brother in 1996, the dispute was raised by the defendant. During all these 20 years, the defendant was in occupation of Schedule-B land and the plaintiffs in Schedule-A. Notwithstanding the fact that the defendant was allotted Schedule-B land, he also continued to remain in Schedule-A land being the younger brother. The fact that the defendant remained in Schedule-A land will not, in any way, negate the claim of the plaintiffs that there was a partition in the year 1976. 34. The fact that the defendant remained in Schedule-A land will not, in any way, negate the claim of the plaintiffs that there was a partition in the year 1976. 34. On an overall consideration of the materials on record, this Court is of the considered opinion that the lower appellate Court failed to take note of the relevant provisions of the ALLR and the Assam Land Records Manual and rejected the entire case of the plaintiffs on a wrong premise that there was no application for mutation. The impugned judgment of the learned lower appellate Court cannot be sustained in law and, therefore, the same is set aside. Accordingly, the substantial questions of law are answered in favour of the appellants. 35. The Second Appeal is allowed. No cost. 36. Registry will send back the LCR.