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2017 DIGILAW 1545 (GAU)

Syed Altaf Hussain v. Assam Board of Revenue

2017-12-15

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. MJ Quadir, learned counsel for petitioners and also heard Ms. RB Bora, learned G A. Assam, representing the respondent No. 2. In this application, the judgment and decree dated 29.9.2011 passed in Appeal Case No. 191 (RA(J)/1994 by the learned Member, Assam Board of Revenue, Guwahati is under challenge. It is the case of the petitioners that the predecessor-in-interest of the present petitioners purchased land measuring 1 Bigha 3 Katha 6 1/2 Lechas from late Dadhiram Koch, one of the co-owners alongwith the brothers Upen Koch and Hemoram Koch of total land 3 Bighas 1 Katha 13 Lechas. Each of the co sharers are entitled to 1 Bigha 11 Lechas of land. 2. Admittedly the predecessor-in-interest of the present petitioners purchased 1 Bigha 3 Kathas 1A Lechas of land from the said Dadhiram Koch, which is apparently excess to the share of the vendor Dadhiram Koch. The respondents No. 1 and 2, Upen Koch and Hemoram Koch respectively filed a title suit for declaration of the joint title of two-third share of total land measuring 3 Bighas 1 Kathas 13 Lechas and to cause partition thereof. In the said suit the predecessor, Rafiul Hussain of the petitioners was the party as one of the defendants. The suit finally ended in the High Court in Second Appeal No. 194/1971 vide judgment and decree dated 13.6.1974. 3. In the said judgment the High Court upheld the decision of the learned lower court declaring right, title and interest of the respondent Nos. 1 and 2 to the extent of two- third over the total land, declaring that late Rafiul Hussain is entitled to one third of the land which was entitled by his vendor Dadhiram Koch. The High Court was however not satisfied with regard to the correctness on the findings of possession in the decree passed in favour of the respondent Nos. 1 and 2. Accordingly, the High Court modified the said judgment and decree of the first appellate court declaring the symbolic possession of the respondent Nos. 1 and 2 over the excess portion of land sold by Dadhiram Koch thereby directing the respondents No. 1 and 2 to file a regular partition suit. 4. Mr. Quadir submits that respondent Nos. 1 and 2, Upen Koch and Hemoram Koch filed a suit for partition which was dismissed for default. 1 and 2 over the excess portion of land sold by Dadhiram Koch thereby directing the respondents No. 1 and 2 to file a regular partition suit. 4. Mr. Quadir submits that respondent Nos. 1 and 2, Upen Koch and Hemoram Koch filed a suit for partition which was dismissed for default. Without going for its restoration, the said respondent Nos. 1 and 2 preferred a Revenue partition case bearing No. IP Case No. 51/90-91 before the Additional Deputy Commissioner, Jorhat. In the said partition case, proclamation was issued by declaring that the partition will be effective from the first day of April, 1992 as required under Regulation 116 of the Assam Land Revenue Regulation 1886. In the said proceeding, the predecessor- in- interest of the present petitioners, who died prior to the partition case was shown as the opposite No. 3. Thereafter vide order dated 3.12.1993 the proclamation after service was accepted and the petition which was filed by one of the petitioners, Sayed Imran Hussain on 19.10.1993 raising objection to the effect that in the said proceeding, instead of making them parties, the name of their late father Rafiul Hussain has been shown, was not accepted by the Additional Deputy Commissioner, Jorhat on the ground that the proclamation had already been issued. Thereafter records were sent to Jorhat Revenue Circle for correction of the record of the partitioned land and for taking necessary steps by the said Circle Officer. 5. Being aggrieved by the said order, the present petitioners preferred the aforesaid appeal before the Assam Board of Revenue and the said appeal was disposed of as aforesaid vide impugned judgment which is under challenge in this writ petition. The operative portion of the judgment of the Board of Revenue is reproduced herein-below:- "It is seen that the dispute regarding title has been clearly resolved by a civil case which went upto the Hon'ble High Court. In such a situation there can be no dispute that the Respondent No. 1 and 2 are entitled to two third share of the property left by late Boparam Konch. The appellant being the successors of late Rafiul Hussain have title over one third of the land to which late Dadhiram Konch was entitled to since Shri Dadhiram Konch had sold the land to Shri Rafiul Hussain. The appellant being the successors of late Rafiul Hussain have title over one third of the land to which late Dadhiram Konch was entitled to since Shri Dadhiram Konch had sold the land to Shri Rafiul Hussain. In view of this clear verdict of the Hon'ble Court the respective share in the joint property is beyond doubt. The Hon'ble High Court had thereafter directed that the respondents No. 1 and 2 file a Partition Case so as to get the specific area demarcated for their share. This has been done in pursuance with the orders of the Hon'ble High Court. The partition case has proceeded and the impugned order has been passed. There is nothing irregular in the same which needs interference or correction. The objections raised by the appellants are frivolous. The appeal is hence dismissed." 6. Mr. Quadir submits that the whole partition proceeding proceeded against a dead man and as such any order passed therein the said proceeding is null and void. The Hon'ble Board ought to have interfered with the said order which however was rejected. Accordingly, he sought for direction to the Collector, Jorhat to show their names in the said proceeding and the proceeding be initiated denovo. 7. Ms. Bora submits that the petitioners have remedy in the Civil Court and as such the impugned judgment ought not to be interfered by this court. 8. Considered the submissions of the learned counsels. In the judgment and decree passed by the High Court in the second appeal, it was observed that the respondents i.e. the other co-owners namely Upen Koch and Hemoram Koch were held to be holding symbolic possession with respect to the excess land sold by the vendor of late Rafiul Hussain. It is further submitted that the name of late Rafiul Hussain, the predecessor-in-interest of the petitioners is still on record. Admittedly the land purchased by late Rafiul Hussain was excess to the share of Dadhiram Koch. 9. Considering the findings given by the first appellate court with regard to the ejectment of late Rafiul Hussain from the excess portion, the second appellate court modified by declaring the symbolic possession of the respondents No. 1 and 2 over the said excess portion of the land. 9. Considering the findings given by the first appellate court with regard to the ejectment of late Rafiul Hussain from the excess portion, the second appellate court modified by declaring the symbolic possession of the respondents No. 1 and 2 over the said excess portion of the land. In such a situation, the said respondents are directed to file regular partition suit which though they filed was dismissed for default Under such circumstances, a duty was cast upon late Rafiul Hussain and his legal heirs to approach the civil court and to file a regular partition suit claiming their share declared by this court in the second appeal and for separate possession by them. Instead the petitioners sought for their names to be recorded in the partition proceeding before the Additional Deputy Commissioner. As the petitioners are not entitled to the excess land purchased by their predecessor-in-interest through the registered sale deed, a direction is required from the competent civil court showing entitlement of late Rafiul Hussain to the extent of one third share of his vendor Dadhiram Koch and the validity of the Sale Deed to that effect only leaving aside the excess portion of land. Until and unless the said direction is given by the civil court, the Deputy Commissioner cannot enter into such a matter for partition based on the land purchased from Dadhiram Koch. 10. This court therefore is of the view that the present petitioners ought to file a regular partition suit as per their entitlement as declared by the High Court in the earlier second appeal with a further declaration of the validity of the Sale Deed to the extent of one-third share of 3 Bighas 1 Khata 13 Lechas and a precept to that effect for correction in the Sale Deed to the Sub-Registrar and then ask for partition and separate possession to that extent by way of drawing up a preliminary and final decree. 11. Considering the same, this court finds no illegality in the judgment passed by the learned Member, Assam Board of Revenue in Appeal Case No. 191/RA(J)/1994. Accordingly, this writ petition is dismissed with a liberty to the petitioners to file a regular partition suit for declaration and partition. This writ petition is dismissed.