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2015 DIGILAW 929 (GAU)

Ashok Kumar Sahu v. Assam Board of Revenue

2015-07-29

HRISHIKESH ROY

body2015
JUDGMENT : 1. Heard Mr. R.L. Yadav, the learned Counsel representing the petitioners. The respondent No. 5 is presented by the learned Counsel Mr. B. Zaman. The learned Government Advocate Mr. J. Handique appears for the State respondents. 2. The issue in this case is whether the mutation granted on the basis of title and possession could be cancelled on the application of the respondent No.5, who secured a subsequent Certificate of possession, long after the mutation was granted in favour of the purchasers. 3. Through a registered Sale Deed dated 17.7.2004, executed by one Jagadish Prasad Sureka and others, the petitioners purchased land measuring 2 Katha 10 Lechas covered by Dag No.3000 & 3002 of P.P. No.1987 of Nagar Mahal Mouza in Sivasagar District and they took possession from the vendors. The purchasers applied for mutation and on the basis of the positive possession report given on the reverse of the application by the Lat Mandal, mutation was granted to the purchasers on 9.7.2004, by the Circle Officer, Sivasagar. 4. But subsequently the respondent No.5 Bulu Khan, who resides on the southern boundary of the purchased land, encroached about 12 Lechas of the petitioners’ land and therefore the aggrieved purchasers filed the Title Suit No.71/2005 against Bulu Khan in the Court of Civil Judge, Sivasagar, for restoration of possession of 12 Lechas land, within Dag No.3002, P.P. No.1987. 5. The respondent Bulu Khan who was the sole defendant in the case managed in the meantime a Land Possession Certificate on 6.6.2005 (Annexure-H) from the Circle Officer, Sivasagar where possession of Bulu Khan over 12 Lechas of the land, i.e. part of the purchased by the petitioner was certified. The basis of the Certificate is a purported report of the Land Records staff in the Circle Office. 6. Even while the civil suit was pending, on the strength of the above Possession Certificate of 6.6.2005, Bulu Khan (respondent No.5) applied for cancellation of mutation, through the Revenue Appeal Case No.12/2005 and the Addl. D.C., Sivasagar on 17.11.2006 (Annexure-E) cancelled the mutation. The primary basis for cancelling the mutation granted earlier by the Circle Officer was the subsequent Possession Certificate issued in favour of the applicant Bulu Khan by the same officer. 7. D.C., Sivasagar on 17.11.2006 (Annexure-E) cancelled the mutation. The primary basis for cancelling the mutation granted earlier by the Circle Officer was the subsequent Possession Certificate issued in favour of the applicant Bulu Khan by the same officer. 7. The purchasers being aggrieved by the cancellation of their mutation, filed an Appeal under Section 147 of the Assam Land & Revenue Regulation 1886 (hereinafter referred to “the Revenue Regulation”) and the Case No.147 RA(S)/2006 was accordingly registered. Before the Assam Board of Revenue, the appellants claimed that they were in continuous possession since the date of purchase on 17.4.2004 and therefore it was argued that the subsequent Possession Certificate granted on 6.6.2005 should not be applied to test the legality of the mutation order passed by the Circle Officer on 9.7.2004. 8. However through the impugned order dated 5.3.2008 (Annexure-F), the learned Revenue Board observed that the petitioners have filed the Title Suit No.71/2005 for restoration of possession of 12 Lechas land and accordingly since the rights of the parties will eventually be determined by the judgment in the suit, the Revenue Board dismissed the Appeal filed the purchasers. 9.1 The learned Counsel for the petitioners Mr. R.L. Yadav submits that the possession of the purchasers was certified by the Lat Mandal when the mutation was granted on 9.7.2004 and accordingly he argues that the subsequent possession certificate obtained by the respondent No.5, could not have been the basis for cancellation of mutation, as the possession of Bulu Khan (respondent No.5) was never certified on the date of the mutation order. 9.2 Projecting that the respondent No.5 forcibly encroached on 12 Lechas of the purchased land, Mr. Yadav submits that the civil suit was filed for restoration of possession of 12 Lechas land and accordingly it is argued that cancellation of mutation of the entire purchased land measuring 2 Katha 10 Lechas wasn’t justified as the possession of respondent No.5 never extended to the entire purchased land. 10. On behalf of the respondent No.5, the learned Counsel Mr. B. Zaman on the other hand submits that mutation doesn’t confer any title and the rights of the parties will eventually be governed by the verdict in the suit filed by the petitioners and accordingly the Counsel argues that the present position on mutation should not be disturbed. 11. 10. On behalf of the respondent No.5, the learned Counsel Mr. B. Zaman on the other hand submits that mutation doesn’t confer any title and the rights of the parties will eventually be governed by the verdict in the suit filed by the petitioners and accordingly the Counsel argues that the present position on mutation should not be disturbed. 11. While considering applications for mutation, the authority is required to consider the title and possession and only when the twin requirements are fulfilled, mutation can be granted to the applicant. Here the petitioners purchased the land on 17.4.2004 and the possession of the purchasers was certified by the Lat Mandal on the backside of the mutation application filed by the purchasers. On this basis, the Circle Officer granted the mutation to the petitioners on 9.7.2004. Therefore it is apparent that the mutation order was passed in accordance with the legal requirement. 12. However the respondent No.5 subsequently encroached on the purchased land to the extent of 12 Lechas and that is how the purchasers had to file the Title Suit No.71/2005 for restoration of possession and the encroacher Bulu Khan was arrayed as the sole defendant in the suit. Therefore the right of the parties to this 12 Lechas of land will now be determined by the result of the decision in the Title Appeal No.2/2013 as the suit has now reached the Court of the learned District Judge, Sivasagar, by way of appeal. 13. It is also important to note that at the relevant stage, the Title Suit No.71/2005 was pending against the respondent No.5 and presently the verdict of the Civil Court is awaited in the Title Appeal No.2/2013. Since this case directly relates to the purchased land, the authority should have awaited the outcome of the Court’s decision, before ordering cancellation of mutation, granted to the purchasers on 9.7.2004. 14. What is significant here is that the Land Possession Certificate granted subsequently to the respondent No.5 doesn’t nullify the purchaser’s possession on 9.7.2004, when mutation was granted. It is also noteworthy that the Possession Certificate was issued on the report of the Land Record staff and not the Lat Mandal, although the latter is the competent authority to confirm possession. Therefore I am of the considered opinion that the cancellation of mutation as was ordered in the R.A. No.12/2005 by the Addl. D.C. was unwarranted. It is also noteworthy that the Possession Certificate was issued on the report of the Land Record staff and not the Lat Mandal, although the latter is the competent authority to confirm possession. Therefore I am of the considered opinion that the cancellation of mutation as was ordered in the R.A. No.12/2005 by the Addl. D.C. was unwarranted. For the same reasoning the order passed by the Revenue Board is found to be unjust, as the Land Possession Certificate of 6.6.2005 can have no relevance on the status of possession, on the date of the mutation order i.e. 9.7.2004. 15. In view of the foregoing discussion, the mutation cancellation order passed in the R.A. Case No.12/2005 by the Addl. D.C. and the consequent Appellate order passed by the Revenue Board on 5.3.2008 (Annexure-F) are set aside. The mutation granted to the purchasers on 9.7.2004 by the Circle Officer, Sivasagar is thus restored. However both parties will ultimately be governed by the Court decision in the Title Appeal No.2/2013 and thus the mutation order dated 9.7.2004 in respect of the purchased land will abide by the Court verdict. It is ordered accordingly. 16. With the above order, this case stands allowed to the extent indicated. No cost.