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2017 DIGILAW 1410 (GAU)

Anil Kumar Agarwal v. State of Assam

2017-11-07

HRISHIKESH ROY

body2017
JUDGMENT : 1. The petitioner-in-person is absent today and also on the previous date, i.e., 9.6.2016. Therefore, the Registry was directed to send a notice for the petitioner's presence and it is, seen from the office note dated 17.6.2016, that due notice was sent to the litigant. 2. The patter pertains to a mutation dispute in respect of property of the Hindu Undivided Family (HUF). On 9.9.1983, the land measuring 2 kathas, 13 lechas, covered by Dag No. 2851 (Old), Patta No. 59,4 (Old), located at Panbazar of Ulubari Mouza, was purchased by Hari Ram Agarwal, in the name of Hari Ram Agarwal HUF. The karta died in 1987, leaving behind his wife Kanaala Devi Agarwal, sons Anil Kumar Agarwal (writ petitioner), Bijoy Kumar Agarwal, Sushil Kumar Agarwal and Monoj Kumar Agarwal. The second son Bijoy Kumar Agarwal has also expired and the widow of Hari Ram Agarwal and their sons Sushil Kumar Agarwal and Monoj Kumar Agarwal are arrayed as respondent Nos. 5, 6 and 7, in the present proceeding. 3. The eldest son Anil Kumar Agarwal applied for exclusive mutation for the HUF property and on the basis of the purported consent by the other legal heirs of late Hari Ram Agarwal, the mutation in favour of the applicant-Anil Kumar Agarwal, was granted on 3.10.1991, by the Circle Officer, Guwahati, in the Mutation Case No. 189/1989-90. 4. Aggrieved by the mutation individually granted to Anil Kumar Agarwal, his two brothers and mother jointly applied for mutation of their names in the HUF property. In the Mutation Case No. 817/2006-07, the Circle Officer noted that the earlier mutation in the name of Anil Kumar Agarwal was mistakenly given, as the respondents are also the legal heirs of Hari Ram Agarwal. Consequently, under the order dated 28.8.2007 (Annexure 3), the mutation for the three applicants in respect of the HUF property was granted, along with Anil Kumar Agarwal. 5. The above decision of the Circle Officer was challenged by Anil Kumar Agarwal, in the RA Case No. 11/2007. The Addl. D.C., Kamrup (M) on 28.8.2008, opined that the Circle Officer could not have rectified the mistake in mutation, on the basis of the respondents application. It was further observed that the issue of title can be decided only by the civil court. The Addl. D.C., Kamrup (M) on 28.8.2008, opined that the Circle Officer could not have rectified the mistake in mutation, on the basis of the respondents application. It was further observed that the issue of title can be decided only by the civil court. Thus, the insertion of the names of the three respondents, by the 2nd order of the Circle Officer, was struck down but retention of the name of the original pattadar Anil Kumar Agarwal was allowed. 6. The aggrieved respondents then filed appeal under section 147, read with section 151 of the Assam Land and Revenue Regulations, against the order passed by the Addl. D.C. Likewise, Anil Kumar Agarwal filed a separate appeal to challenge the direction of the Addl. D.C., for mutating his name as the Karta of the HUF. 7. The Assam Board of Revenue, in the Case No. 108 RA(K)/2008, filed by the respondents, observed in the impugned judgment of 2.6.2009 (Annexure 11), that the property was purchased as Karta of the HUF and not individually, by late Hari Ram Agarwal. Therefore, when the karta died, the HUF property could not have been mutated in the name of any individual legal heir but only in the name of the HUF itself. It was further observed by the Revenue Board that if the parties are interested for their individual share in the HUF property, they have to dissolve the HUF and get their shares settled. On the basis of such observation, the appeal filed by the respondents was allowed and the land was ordered to be mutated in the name of the HUF. 8. Consequent upon the Revenue Board's order of 15.7.2009 (Annexure 12), the Addl. D.C. has ordered for mutation of the land in the name of the HUF, in place of the individual pattadar, Anil Kumar Agarwal. 9. The petitioner who wanted exclusive mutation in his own name in respect of the HUF property, has not engaged any counsel to represent him nor he has made himself available, despite the notice issued to him in pursuant to the court's order dated 9.6.2016. 10. In the absence of the petitioner, Mr. B.D. Deka, the learned counsel for the contesting respondents submits that Smti. Kamala Devi Agarwal (respondent No. 5) has died on 15.7.2013, but she has not been substituted. 10. In the absence of the petitioner, Mr. B.D. Deka, the learned counsel for the contesting respondents submits that Smti. Kamala Devi Agarwal (respondent No. 5) has died on 15.7.2013, but she has not been substituted. He further submits that the respondents as plaintiffs had applied for partition of the HUF property through the Title Suit No. 150/2008, where Anil Kumar Agarwal was arrayed as the defendant. The partition case was allowed by the learned Civil Judge, No. 1, Kamrup on 11.4.2014, where the court declared that the defendant illegally mutated his name in the HUF property. The court also found that the defendant also attempted to sale the HUF property, after securing the individual mutation. 11. The defendant entered his appearance in the partition suit but neither filed his written statement nor participated in the later proceedings. The suit was accordingly allowed on 10.4.2014, with the declaration that the plaintiffs are entitled to their proportionate share as coparceners, in respect of the HUF property. 12. The above verdict in the Title Suit No. 150/2008, has conferred right on all the coparceners for their respective shares in the HUF property and in such circumstances, the consequential mutation of the HUF property will have to be done as per the court's decree. Therefore, the mutation secured individually by the petitioner Anil Kumar Agarwal will have no legal force in the now partitioned HUF property. In any case, individual mutation could not have been secured by any of the coparceners in the HUF property and to this extent, I find no infirmity with the impugned decision dated 9.6.2009 (Annexure II) of the learned Revenue Board, in the Case No. 108 RA(K)/2008. Therefore, this writ petition is found devoid of merit and the same is accordingly dismissed with the observation that the property devolving through Late Hari Ram Agarwal should now be apportioned and mutated, in terms of the decree in the Title Suit No. 150/2008. It is ordered accordingly. 13. With the above order, the case stands disposed of, without any order on cost. The Registry should forward a copy of this order along with the LCR, to the Revenue Board.