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W.P (C) 4082 OF 2005 Page 1 of 42
IN THE GAUHATI HIGH COURT
THE HIGH COURT OF ASSAM: NAGALAND: MEGHALAYA
MANIPUR: TRIPURA: MIZORAM: TRIPURA & ARUNACHAL PRADESH
W.P (C) 4082 OF 2005
Smt. Manjula Haque Islam
D/o late Amirul Haque Christian Basti
G.S Road, Guwahati-781 005 Panorama Apartment
Chandmari, Guwahati- 781 003 ….. Petitioner
-Vrs.-
The State of Assam
Represented by The Secretary to the
Department of Revenue, Dispur Guwahati- 781 006
2. The Hon‟ble Board of Revenue, Assam
Guwahati, Panbazar Guwahati- 781 001
3. The Deputy Commissioner
Kamrup (Metro), Panbazar
Guwahati- 781 001
4. The Settlement Officer Re-settlement operation
Govt. of Assam, Ulubari Guwahati- 781 007
5. The Assistant Settlement Officer
Re-settlement Operation In-charge of Japorigog Revenue Village
Ulubari, Guwahati- 781 007
6. The Guwahati Metropolitan Development Authority,
Represented by its
Chief Executive Officer, Bhangagarh, Guwahati 781 007
W.P (C) 4082 OF 2005 Page 2 of 42
7. Mustafa Shahidul Islam Ex-MLA
Christian Basti, G.S. Road Guwahati- 781 005
8. Sri Kanakeswar Gogoi
S/o Sri Budu Ram Gogoi Sarumotoria, Guwahati- 781 006 Respondents
BEFORE THE HON’BLE MR JUSTICE U.B. SAHA
Advocate for the petitioner: Mr. S. Kalita
Advocate for the respondents 1to 5: Mr. Mr. B. N. Gogoi
Govt Advocate
Advocate for the respondent No. 7: Mr. Sheeladitya
Ms T. Goswami Advocate for the respondents
6 & 8: None appears Date of hearing : 25.1. 2011
Date of delivery
of the judgment: 21.07.2011
JUDGEMENT AND ORDER
1. The challenge in this writ petition is the judgment, dated
20.5.2005, passed by the Court of the Assam Board of
Revenue, Guwahati, ( hereinafter, for short, referred to as
„Board of Revenue‟), in case No. 107 RA (K)/02 (Annexure-24
W.P (C) 4082 OF 2005 Page 3 of 42
to the writ petition) whereby and whereunder the order, dated
4.10.2002, passed by the Settlement Officer, Guwahati in
R.A. No. 9 of 2002 (Annexure-16 to the writ petition)
upholding the order, dated 18.1.2002, passed by the Asstt.
Settlement Officer, Guwahati in Misc. Case No. 29 of 2000,
holding, inter alia, that the dispute in between the appellant
and respondent are civil in nature and as such civil court can
decide the title and accordingly the misc. case was disposed of
thereby the appeal filed by the appellant, respondent No.7
herein, was disposed of
2. Heard Mr. S. Kalita, learned Counsel for the petitioner
and Mr. Shiladitya, learned Counsel appearing for respondent
No.7. Also heard Mr. B.N. Gogoi, learned Govt. Advocate
appearing for the respondents 1 to 5.
3. Admittedly, the petitioner, Smt. Manjula Hoque, was
adopted by Md. Amirul Hoque. She happened to be the
daughter of his elder brother who died while Manjula was two
months old and her mother predeceased him just at her birth
time. Since then Majula was living with Amirul Hoque as his
only daughter.
4. Amirul Hoque, a resident of Christianbasti, Guwahati,
had two plots of land measuring 2 katha 15 lechas covering
Dag No. 936, K.P Patta No. 32 and 1 katha 15 lechas covering
Dag No. 935, K.P. Patta No. 305.
W.P (C) 4082 OF 2005 Page 4 of 42
5. Both plots were contiguous situated on G.S. Road,
Christian Basti, Guwahati. In 1 Katha 10 lecha, there was a
big R.C.C. building measuring little less of 500 sq. ft which
was originally used as residence of Amirul Hoque. Smt.
Manjula was brought up there.
6. Respondent 7, Mustafa Shahidul Islam, a Member of
Legislative Assembly (MLA), as he then was, married Manjula
in the year 1988. He was also staying with Manjula at the
residence of Amirul Hoque, father of Manjula. It is stated that
soon thereafter, he started ill-behaving and torturing with
Manjula and her parents to transfer entire landed property of
Amirul Hoque in his name. While said proposal was not
accepted, respondent No.7 implicated Amirul Hoque, in a false
rape case. In the result, Amirul Hoque had to suffer in jail for
forty-five days.
7. Thereafter, Amirul Hoque became ill. Ultimately he
decided to gift out both plots of land in favour of petitioner
and in 1989, he openly declared about gifting of both plots to
his daughter only, as he was not even in a position to take
effective step for transferring the aforesaid plot of land.
8. Upon accepting and taking possession of gifted lands,
Manjula made formal petitions to the Settlement Officer for
mutation. Accordingly, two mutation case No. 3424/92-93 and
3425/92-93 was registered and thereafter, records of
W.P (C) 4082 OF 2005 Page 5 of 42
aforesaid cases were transferred to the Assistant Settlement
Officer.
9. After considering Lat Mandal‟s report as to the
petitioner‟s possession, the Assistant Settlement Officer vide
order, dated 23.6.1993, granted mutation to the petitioner in
respect of both plots of land and thus aforesaid two plots of
land of Amirul Hoque were transferred in the name of
petitioner. Thus, she became a valid owner, title holder and
possessor of both plots of land. Subsequently, Guwahati
Municipality Corporation (GMC) holding and electricity
connection were also transferred in her name and she has
been paying the land revenue taxes.
10. In 2 katha 15 lechas of land, there were total fifteen
tenants who were shopkeepers at the time of father of the
petitioner. But after mutation being granted to the petitioner,
they came to be under her tenancy.
11. In 1997, as decided, the petitioner and her husband
along with their two minor children and the father of the
petitioner came to MLA Hostel to live there.
12. The RCC building they lived in on 1 katha 10 lechas was
divided into two parts. One part was let out to one Mrs. Gita
Rani Ghosh, proprietress of M/s Ghosh Brother (P) Ltd. and
the other part to one Mrs. Nivedita Baruah, proprietress of M/s
Olivia Motors which was handed over to them by the petitioner
W.P (C) 4082 OF 2005 Page 6 of 42
in August, 1997 in presence of her husband, respondent No.7,
on monthly rental basis. She also signed two separate lease
deeds in respect of both the tenants and since then, they
possessed the land in question under the tenancy of the
petitioner.
13. At the time of handing over the possession, the
petitioner accepted some advance amounts from Mrs. Nivedita
Baruah and also issued money receipt whereupon the
respondent No.7, the husband of the petitioner put his
signature as a witness.
14. After completion of interior decoration on 12.2.1998, the
petitioner signed two separate Lease Deeds in respect of both
the tenants. Two affidavits were sworn by them recognizing
the tenancy of the petitioner. Copy of the money receipt, two
lease deeds and two affidavits aforementioned are annexed as
Annexure-9, 10, 11, 12 and 13 to the writ petition
15. It is claimed by the petitioner that father of the
petitioner prepared a Deed of Declaration in the form of
Affidavit with regard to his gift, but respondent No.7 took
away the same to destroy the evidence.
16. It is also alleged that respondent No.7 started frequent
torture upon the father of the petitioner. Ultimately, he died
on account of his heart attack at Neurological Hospital,
Guwahati on 20.1.1998.
W.P (C) 4082 OF 2005 Page 7 of 42
17. It is further stated that respondent No.7 then liked to
take hold of gifted landed property of the petitioner and he
also grabbed another plot belonged to one widow Mrs. Sujata
Pathak who later recovered it from him.
18. Thereafter, respondent No. 7 has increased inhuman
tortures upon the petitioner. She fled away from MLA Hostel
and took shelter as guest in another house where she was
advised to build a house in her own land. Accordingly, she
built up a small type Assam house in a corner of the plot of 2
katha 15 lechas with her own money. From September, 1999
she has been staying at her said house with her children.
19. Subsequently, Respondent No.7 also went there along
with his armed house guards who allegedly used them to
detain the petitioner at that house. It is also alleged that
Respondent No. 7 on 27.1.2003 broke open the door of the
house of the petitioner in her absence, looted many valuables
including land documents, bank pass book, many security
deposit certificates etc. and also started staying there with one
widow, namely, Mrs. Runa Begum.
20. In this connection, the petitioner lodged an FIR to the
Officer In-charge, Dispur Police Station, Guwahati which was
registered as Dispur P.S. Case No. 87/03 under Sections
454,380,427 IPC, (Annexure -14 to the writ petition).
W.P (C) 4082 OF 2005 Page 8 of 42
21. One Kanakeswar Gogoi, respondent No.8, then came to
show that a plot measuring 1 katha 10 lechas was sold to
him by the father of the petitioner by a registered deed in
1984 and another plot of land measuring 2 katha 15 lechas
was also sold to him by another registered sale deed in the
year 1995 who sold the same to respondent No.7 in the year
1998. Thus, respondent No.7 claimed mutation striking out
the name of the petitioner from the records of
chitha/jamabandi.
22. During 1997-98-99, the resettlement operation and
survey was going on in the city, Guwahati and taking
advantage of such situation, respondent 7 managed to record
his name as provisional mutator in respect of both plots of
land in the Chitha Book (Field Index) in place of petitioner
and then claimed for formal mutation thereof.
23. It is contended that when the commission of fraud and
cheating of the respondent No.7 and 8 were detected in the
year 2000, the petitioner filed Title Suit No. 286 of 2000
before the learned Civil Judge (Senior Division) No.2 praying
for decree for declaration that aforesaid sale deeds of the
respondent No. 7 are illegal, inoperative and void and also for
confirmation of possession. Respondent No.7 filed counter-
claim praying for a decree for his right, title and interest in
reference of same plots of land. The said suit is still pending.
W.P (C) 4082 OF 2005 Page 9 of 42
24. During pendency of the suit, the petitioner also filed a
misc. (J) case under order 30 Rule 1 & 2 of CPC for passing an
ad-interim injunction that was allowed which was challenged
by respondent No 7 before this Court vide MFA No 62 of
2000. While disposing the same, it was ordered to maintain
status quo till finalization of the main suit.
25. However, respondent No.7 submitted a petition to the
Assistant Settlement Officer, Guwahati for granting mutation
in favour of him which was rejected by an order, dated
18.1.2000.
26. Against the order dated 18.1.2000, the respondent No.7
has preferred an appeal to the Settlement Officer which was
registered as R.A. Case No. 9 of 2002 which was rejected by
the Settlement Officer by order, dated 4.10.2002, upholding
the order of the Assistant Settlement Officer.
27. Being dissatisfied with the order of the Settlement
Officer, respondent No.7 preferred another appeal before the
Board of Revenue which was registered as R.A. 107(K)/2002.
The said case was contested by the petitioner by filing two
sets of written arguments contending, inter alia, that she is
the recorded owner since 1993. The petitioner also submitted
documentary evidence, affidavit sworn by all 17 tenants
showing their possession under her tenancy since 1993.
W.P (C) 4082 OF 2005 Page 10 of 42
28. It is submitted by the petitioner that in course of hearing
of the appeal, the petitioner by filing a petition under Section
141 of Assam Land and Revenue Regulations prayed for
recording the evidence of a number of witnesses on the point
of her title and possession of the land as the Board is
empowered to decide the issue in accordance with the Rule 24
of Board of Revenue Regulation Rule, 1963, but the Board
rejected such petition without showing any reason.
29. During the pendency of the appeal, the Board called for
para wise comments in reference to the appeal of respondent
No.7 and the new Settlement Officer submitted his report on
6.6.2003 stating, inter alia, that after the death of Amirul
Haque, his only daughter Smt. Manjula Hoque‟s name was
mutated. Smt. Manjula‟s name was mutated in Mutation Case
No. 3424/92-93 and 3425/92-93 on 23.6.93. However, during
the field survey under the resettlement operation, the name of
Sri Sahidul Islam was also entered in the same Dag and Patta
No. So both Sri Manjula Hoque and Sri Sahidul Islam‟s
appeared in Dag No. 935 and 936 in KPP 305 and 32
respectively in 1998. But as a matter of fact, the name of
Smt. Manjula Hoque was later struck out from the Dag No.
936 of KP 32 and the respondent No. 7 is in possession and
his possession is continuous.
W.P (C) 4082 OF 2005 Page 11 of 42
30. But it is the case of the petitioner that she is having
three GMC holdings, 2 electricity connections, affidavits of all
17 tenants which show that the petitioner is in active
possession over two plots of land- one measuring 1 katha 10
lecha and 2 katha 15 lechas except 2/3 lecha thereof wherein
the respondent No.7 has been staying in an Assam Type
House belonging to the petitioner since 27.1.2003 and the
respondent No.8 never took over the possession of those
plots of lands and acquired right to sell the lands in question.
31. It is further stated that the petitioner has filed a criminal
complaint against the respondent No. 7 and 8 to the Officer
In-charge, CID Police Station that was registered as CID P.S
case No. 44 of 2002 under Sections 406/420/468/471/120-B
IPC.
32. It is also alleged by the petitioner that though at the
initial stage, the police was very serious in the process of
investigation, but after few months, they went slow against
respondent No.7. However, respondent No.8 published a news
in a local Assamese daily, namely, „AJI’ declaring that he
neither purchased lands measuring 2 katha 15 lecha and 1
katha 10 lecha from Amirul Haque nor sold them to anyone.
33. The Board of Revenue of Assam ultimately allowed the
appeal preferred by the respondent No 7 by setting aside the
order of the Settlement Officer as noted above.
W.P (C) 4082 OF 2005 Page 12 of 42
34. Being aggrieved by the judgment of the Board of
Revenue, the petitioner has filed the instant writ petition.
35. It is the contention of the petitioner that as per
provisions of Chapter VIII of Assam Land and Revenue
Regulations and Board of Revenue Regulation Rule, 1963, the
Board of Revenue has the power to adjudicate any revenue
appellate dispute by way of properly framing the issues in
dispute, taking evidence, examining the real situation,
documents and records etc., but the learned members failed
to act in accordance with aforesaid provisions, thus failed to
appreciate the tenancy of the petitioner and also the mutation
of the land in question granted to the petitioner for which the
limitation period prescribed for two months.
36. It is also stated by the petitioner that Board of Revenue
also did not consider whether the appellant satisfied the
provisions of Chapter-IV, Part-B i.e. the Section 50 to 53 of
Assam Board of Revenue Regulations or not while claiming
mutation to be granted in favour of him when the records
furnished to the Board clearly show that since 1993 till date,
the entire estate is under active possession of the petitioner.
37. It is further stated that the Board of Revenue passed the
impugned judgment on the basis of the report, dated
6.6.2003, submitted by the Settlement Officer which was a
fabricated one and distorted the real facts stating, inter alia,
W.P (C) 4082 OF 2005 Page 13 of 42
that respondent No.7 has been in possession and his
possession is continuous while the petitioner got her name
mutated at the life time of her father in the year 1993 while
her father died on 20.1.1998, and the said mutation order
dated 23.6.1993 in favour of the petitioner is protected by
Section 153 of Chapter IX of Assam Land & Revenue
Regulation, but the Settlement Officer recorded in his report
that the father of the petitioner died in 1993 and thereafter,
the name of the petitioner got mutated. The petitioner raised
this point by submitting the written argument, but the Board
of Revenue did not discuss the same, rather overlooked it,
therefore, the impugned judgment is liable to be set aside and
quashed.
38. Further contention of the petitioner is that for the first
time, respondent No.7 raised an issue before the Board of
Revenue alleging that mutation case No. 3424/92-93 was
recorded in the name of one Bijoy Sharma and 3425/92-93
was recorded in the name of one Nripendra Nath Talukdar and
the mutation cases as referred to by the petitioner are false.
But the Board of Revenue, though prayed by the petitioner,
did not call for the records or Register Book of 1993-94, as the
petitioner‟s mutation was made in the month of June, 1993.
The Board of Revenue acted only on the report of the
Settlement Officer that original case records of 3424/92-93
W.P (C) 4082 OF 2005 Page 14 of 42
and 3425/92-93 are missing and thus held that such
registration numbers are false.
39. It is also contended by the petitioner that though the
Board of Revenue consisted of two Members, but out of them,
one Member heard the appeal preferred by the respondent
No.7 and other Member was absent, but ultimately, the
judgment was pronounced and signed by both the members of
the Board of Revenue, for which the entire proceeding is liable
to be quashed.
40. The petitioner also filed the additional affidavit
contending inter alia, that the transfer of municipal holding in
the name of petitioner was well aware to the respondent No.
7 as on numbers of occasion he deposited the municipal taxes
on behalf of the petitioner which would be evident from
Annexure 1 to 3 to the Additional affidavit filed by the
petitioner and the tax receipt was signed by the respondent
No.7 as depositor on 18.6.1997 and as the owner of the land,
the petitioner leased out in two parts of 1 katta 10 leches to
two tenants, namely, Smt. Nibedita Baruah and Smt. Gitarani
Ghosh, which facts was admitted by the respondent No. 7 in
his affidavit in opposition.
41. Respondent No. 4 has filed the counter affidavit to the
writ petition stating, inter alia, that the mutation in Dag No.
935 and 936 was granted in favour of the petitioner, the
W.P (C) 4082 OF 2005 Page 15 of 42
adopted daughter of pattadar by virtue of gift and possession
by the then Asstt. Settlement Officer in Mutation case No.
3424/92-93 and 3425/92-93 on 23.6.93 and during field
survey under re-settlement operation, name of respondent
No. 7 was mutated in the above Dags by virtue of purchase
by the then Asstt. Settlement Officer.
42. It is further stated by the respondent No. 4 that as per
records, the mutation in the name of respondent No.7 was
granted on the basis of sale Deed No. 4043/98 and 3514/98
of Guwahati Sub-Register Office. The said Sale Deed showed
that respondent No. 7 had purchased the aforesaid plots of
land from respondent No.8.
43. It is also stated that as per link, Sale Deed No. 5445/84
and 299/95 of Sub Registry Office, Guwahati, the respondent
No.8 appeared to have purchased the above plots from Md.
Amirul Haque, father of the petitioner.
44. It is further stated by the respondent No.4 that as per
draft chitha, the name of respondent No.7 was mutated in Dag
No. 936(old), 2451(new) covered by K.P. Patta No. 32(old),
199(new) along with petitioner and in place of her Dag No.
935(old), 2452(new) covered by K.P. Patta No. 305(old),
30(new) of village Japorigog. Thus the name of the petitioner
was struck off from Dag No. 935(old), 2452(new) and land
records were corrected accordingly. It is also stated that the
W.P (C) 4082 OF 2005 Page 16 of 42
dispute over the possession was still on and it changed time
and again. But recently Smt. Manjula Islam has sold 1 katha
10 lechas land under Dag No. 935 of K.P. Patta No. 305 to
Shri Pranab Kumar Ghosh vide Regd. Deed No. 9885 dated
16-08-2005. At present both the purchasers are in possession.
45. Respondent No.7 also filed affidavit in opposition on
denying all the allegations made by the petitioner. But he
admitted that father of the petitioner was the original pattadar
of the aforesaid two plots of lands and he married the
petitioner and out of their wedlock, two children were born.
But he denied his stay with the petitioner at petitioner‟s
father‟s house.
46. Respondent No.7 further contended in his affidavit in
opposition that the father of the petitioner by registered sale
deed dated 7.5.84 sold 1 Katta 10 lechas of land under Dag
No. 935 of K.P Patta No. 305 to respondent No.8 which he
sold to respondent No.7 by a sale deed dated 23.6.98. He also
contended that by another sale deed dated 5.9.95 the father
of the petitioner sold 2Katta 15 lechas of land under Dag No.
936 to respondent No.8 and later on respondent No.8 sold the
same to the respondent No.7. Respondent No.7 thus became
the owner of the entire land together with the house thereon.
Thereafter, he applied for mutation, but as re-settlement
W.P (C) 4082 OF 2005 Page 17 of 42
process was going on, the same could not be made. But he is
paying the land revenue.
47. It is also contended by the respondent No. 7 that
mutation does not confer title on anybody. Therefore, the
petitioner by obtaining fraudulent mutation in the year 1993
cannot claim ownership over the land on the basis of the said
mutation order in Mutation case No. 3424/92-93 and
3425/92-93 which was not instituted by the petitioner, but by
other two separate persons.
48. The respondent No. 7 has filed another affidavit in
opposition wherein he annexed the final report submitted in
CID police station case. One Grindra Narayan Roy, CID
Inspector of Police, CID P.S submitted the final report on
7.11.07 stating, inter alia, that it is found to be correct that
the accused Mustafa Shahidul Islam (respondent No.7) has
purchased the land, there is no illegality or conspiracy or
cheating in so purchasing the land. This case is an outcome of
misunderstanding between both.
49. Mr. Kalita, learned Counsel appearing for the petitioner
while urging for the relief sought for submits that admittedly
the land in question for which mutation is sought for by the
petitioner was the land of her father who orally gifted the said
land to the petitioner and oral gift is valid under the provisions
of Sections 147 to 150 of Mahammedan Law for which writing
W.P (C) 4082 OF 2005 Page 18 of 42
is not necessary. In support of his contention, he relied upon
two decisions of the Apex Court in Mahboob Sahar Vs. Syed
Ismail and ors (1995) 3 SCC 693 and Ram Niwas Todi
and another Vs. Bibi Jabrunnissa and ors, (1996) 6 SCC
444.
50. He further submits that admittedly the land in question
was/is under the possession of the petitioner. He further urges
that the order, dated 23.6.93, in original mutation proceedings
being case No. 3424/92-93 and 3425/92-93 wherein the
prayer for mutation was allowed by the Assistant Settlement
Officer and the order of the Settlement Officer dated,
4.2.2002, in R.A. No. 9 of 2002 affirming the order of the
Assistant Settlement Officer is valid and reasonable.
51. He further submits that the story of selling of landed
property in question by the father of the petitioner to the
respondent No. 8 is nothing but an attempt of fraud on the
part of the respondent No.7, as the respondent No. 8 himself
made a declaration in a local paper “AJI” that he had never
purchased the land at Dag No. 936 Patta No. 32 measuring 2
Katta 15 lechas and Dag No. 935 Patta No 305 measuring 1
Katta 10 lechas from the father of the petitioner at any time
and he also did not sell the same to anybody and he is not
answerable to anybody relating to that land which would be
W.P (C) 4082 OF 2005 Page 19 of 42
evident from Annexure-6 to the affidavit in reply filed by the
petitioner on 10.12.2007 before this Court.
52. He further contends that the respondent No.7 in his
Memo of appeal stated that after two and half years of the
death of the petitioner‟s father, he first time came to know
about GMC mutation of the petitioner and consequent thereto,
he applied for cancellation of the mutation of the petitioner.
In fact, the respondent No.7 was not only aware about GMC
mutation, but he himself acted as an agent of the petitioner to
deposit the municipality tax in the year 1997, particularly, on
18.6.1997 which will be evident from Annexure-1 to the
affidavit in reply filed by the petitioner and father of the
petitioner died on 20.1.1998, i.e. after the said deposit of the
municipal tax by the respondent No. 7.
53. It is also contended by the learned Counsel that in 1997
during the life time of the father of the petitioner, she became
the owner of the land and house of her father and in that
capacity, she divided the entire RCC building into two parts
and let out one part to Mrs Nivedita Baruah, the proprietress
of M/s Oliva Motors and Mrs. Gita Rani Ghosh, the proprietress
of M/s Ghosh Brothers. The lease deed prepared for that
purpose was signed by the respondent No. 7 as a witness
and advance payment was also received by the petitioner in
respect of such lease which would be evident from the
W.P (C) 4082 OF 2005 Page 20 of 42
contention of respondent No.7 in para-10 of his affidavit
wherein he admitted that contention of the petitioner in
paragraph-8 of the writ petition, inter alia, that in August,
1997, the petitioner having divided her said RCC building at
1 Katta 10 lechas into two parts let out one part to one Mrs
Gita Rani Ghosh, proprietress of M/s Ghosh Brothers and other
part to one Mrs. Nivedita Baruah, the proprietress of M/s
Oliva Motors on monthly rental basis.
54. The learned Counsel further submits that both the
tenants took up their respective possession in the month of
August, 1997 from the petitioner and they took about 6/7
months for interior decoration. At the time of handing over the
possession, the petitioner accepted some advance amounts
from Mrs Nivedita Baruah against issuance of money receipt,
and in the money receipt, the respondent No. 7, the husband
of the petitioner also signed as one of the witness. Thus, he
knew well in 1997 that the petitioner was the owner of such
plots of land. Therefore, the claim of the respondent No.7 that
he was not aware regarding transfer of land to the petitioner
by her father is totally unacceptable.
55. He also submits that in view of Section 148 of the
Assam Land and Revenue Regulation, the order dated
23.6.1993 has to be challenged within two months from the
date of such order, but it was not done by the respondent
W.P (C) 4082 OF 2005 Page 21 of 42
No.7 and at that relevant time, he was admittedly not the
owner of the land as alleged by him, far to question of title
over the land.
56. He further urges, even if for the argument sake
accepted the contention of the respondent No.7 that he
purchased the land from respondent No.8, who allegedly
purchased the land in question from the father of the
petitioner in his life time and the said respondent No.8 again
sold the land to the respondent No.7 in the year 1998, then
also he is not entitled to get mutation as on 23.6.1993, as the
petitioner has become owner of the land in question and the
same has already been mutated in her name which the
respondent No.8 never challenged and he also not challenged
the aforesaid contention of the petitioner in the instant writ
petition by way of filing any counter.
57. Against the decision of the Revenue Board, learned
Counsel also submits that mere Sale Deed is not enough for
getting mutation. Acquiring possession over the land alleged
to have been purchased is a sine qua non for getting mutation
as per Section 50 of the Assam Land Revenue and Regulation
and admittedly the respondent No.7 did not acquire the
possession over the land measuring 1 katta 10 lechas which
would be evident from paragraph-10 of the affidavit in
opposition wherein he admitted the contention of the
W.P (C) 4082 OF 2005 Page 22 of 42
petitioner in paragraph-8 of the writ petition and admittedly
till date the position stands in favour of the writ petitioner.
58. Learned Counsel further submits that the Board of
Revenue failed to take note all those facts though the
petitioner made an application before it for taking evidence.
Learned Counsel would contend that the petitioner lived with
the respondent No.7 along with her father since 1993 to till
August, 1998, and between this time admittedly the
respondent No.7 deposited the municipal tax with the Gauhati
Municipal Corporation on behalf of the petitioner as her agent
and since 1993 to 1998, August, the respondent No.7 never
raised his voice for cancellation of mutation granted in favour
of the petitioner.
59. He further submits that order of mutation passed in
favour of the petitioner cannot be challenged after long eight
years without becoming aggrieved party on the date of cause
of action. Thus the challenge of the respondent No.7 to the
granting of mutation in favour of the petitioner is barred by
law of limitation as prescribed in Section 148 of the Assam
land and Revenue Regulation.
60. Learned Counsel also contends that the Board of
Revenue though constituted by the appropriate authority with
two members but only one learned member heard the appeal
proceedings in absence of other learned member and on that
W.P (C) 4082 OF 2005 Page 23 of 42
aspect, a specific contention has been made in the writ
petition and learned Govt. Advocate even on direction given
by this Court is not in a position to produce the proceedings
of the revenue appeal wherein the impugned order has been
passed for which it can be presumed that the contention of
the petitioner is correct.
61. He further contended that the father of the petitioner
was the original recorded pattadar of the land in question but
as per the reports and documents available, if accepted, it also
appears that the father of the petitioner sold the land to
respondent No. 8, (the respondent No.5 therein), and the
respondent No.7, (the appellant therein), purchased the said
land from the respondent No.8 by registered sale deed but the
respondent No.8 has got no mutation over the land, the name
of the petitioner (respondent No.1 therein) who is stated to
be only daughter of Amirul Hoque, the original pattadar, has
been mutated in respect of the land in question on
23.6.1993, that also before the death of the father of the
petitioner vide mutation case No. 3424/92-93 and 3425/92-93
which is challenged by the respondent No.7 herein.
62. Learned counsel also submits that the respondent No. 7
has no right to ask for mutation and consequent thereto, the
Board of Revenue has no power to set aside the order of
mutation passed in favour of the petitioner as the alleged Sale
W.P (C) 4082 OF 2005 Page 24 of 42
Deed was allegedly executed by the respondent No. 8 without
obtaining mandatory sale permission from the District
Revenue Authority as well as Guwahati Municipal Corporation,
which is at present Guwahati Metropolitan Development
Authority under Section 32 of the GMDA Act.
63. His further contention is that the Board of Revenue
failed to appreciate the factual and legal position so far the
order of mutation dated 23.6.1993 is concerned as on that
date or thereafter if anybody is aggrieved by the said order
that was the father of the petitioner who was alive upto
20.1.1998 i.e. about nine years from the date of oral gift and
five years from the date of mutation of the land in the name
of the petitioner and the respondent No.7 never raised his
voice during the life time of the father of the petitioner
questioning the mutation of the land in her name and
admittedly on the date of order of mutation, the respondent
No.7 had no relation with the land in question. He was
completely stranger and even if for the argument sake, it is
admitted that the respondent No.8 might have some
grievances in respect of land measuring 1 katta 10 lechas as
he was allegedly to have been purchased such plot of land in
the year 1984, but the said respondent No. 8 did never
challenge either the oral gift made by the father of the
petitioner to her and consequent thereto, the title over the
W.P (C) 4082 OF 2005 Page 25 of 42
land or the order of mutation which was passed in favour of
the petitioner in the year 1993. The Board of Revenue also
failed to consider all those aspects, the learned Counsel
submits.
64. His another contention is that that though the order of
mutation was passed in favour of the petitioner on 23.6.1993
but the Register of the cases maintained by the Settlement
Officer from the period from 25.4.1993 to 23.6.1993 could be
placed and the Settlement Officer specifically stated in his
comments that the records relating to two relevant cases
wherein the order dated 23.6.1993 was passed are missing,
The learned Revenue Board did not consider those aspects and
the points which was not taken before the Assistant
Settlement Officer and the Settlement Officer by the
respondent No. 7 raised before the appellate Court for the
first time and the appellate court, the Board of Revenue
considering those points passed the impugned order which is
wholly unsustainable under the law.
65. The authority who filed the final report in the CID case
as annexed by the respondent No.7 with his affidavit in
opposition cannot also be treated as a document of proving
the status of sale deed or right of the petitioner for the land
on the basis of mutation as ordered by the appropriate
authority, the learned Counsel further submits.
W.P (C) 4082 OF 2005 Page 26 of 42
66. He also submits that the civil suit T.S. No. 286 of 2000
is pending before the learned Civil Judge, No. 2 since 2000 as
filed by the petitioner claiming declaration of her right, title
and interest over the land in question and confirm of
possession.
67. He finally submits that mutation proceeding, title of the
land cannot be decided being the same is only for the purpose
of collection of revenue on consideration of the possession
over the land. Thus it would be proper for this Court to affirm
the order dated 23.6.1993 passed by the Assistant Settlement
Officer in mutation case No. 3424/92-93 and 3425/92-93 and
the order dated 18.1.2002 passed by the ASO in Misc. Case
No. 29 of 2000 and the order dated 4.10.2002 passed by the
learned Settlement Officer in R.A. 9 of 2002 by setting aside
the order dated 20.5.2005 passed by the Board of Revenue in
107 RA (K)/02.
68. He also refers to the decision in Nar Bahadur Gurung
and ors Vs. Anil Krishna Bhattacharya and ors, AIR 1957
Manipur 25, the Judicial Commissioner‟s Court, while deciding
an appeal preferred against the judgment and decree of the
District Judge, Manipur in Civil Suit No. 4 of 1955 dismissing
the plaintiff‟s claim for declaration in respect of about 70 paris
(about 175 acres) of land situated at Pangei village, dealt
with Sections 40,50(a) and 53 of the Assam Land Revenue
W.P (C) 4082 OF 2005 Page 27 of 42
and Regulation and noted that a person who claiming to be
the landlord gives notice to a tenant terminating his tenancy
expressly recognizes that he is a tenant and in the event of a
suit for ejectment being filed the tenant always has the right
to show that the plaintiff is not the landlord. Wrong mutation
cannot, therefore, give the plaintiffs a right to claim a
declaration under S. 42 of the Specific Relief Act.
69. From the aforesaid finding, it cannot be said that even
when a person purchased a land which is not within the
possession of the seller at the relevant time and the purchaser
did never take possession and even formal possession is also
not delivered at the time of sale, mutation cannot be
sanctioned in favour of the purchaser. When the person
having the possession over the land do not claim to be
pattadar of the land, wrong mutation in favour of the
purchaser does not in any way affect their legal character or
right to any property.
70. But in the instant case, it is admitted position that the
land was mutated earlier in favour of the petitioner on the
basis of her possession over the land, even if this Court
considered that the Revenue authority passed the order of
mutation wrongly in favour of the petitioner, then also such
order of mutation may entitled the petitioner to get a
declaration of title over the land subject to she established
W.P (C) 4082 OF 2005 Page 28 of 42
that land in question has been transferred in her favour by the
original pattadar by way of adducing evidence as the Civil
Court has also the power to cancel the mutation after taking
evidence in a suit where the mutation is also challenged.
71. In the instant case, when the name of the petitioner was
struck out from the revenue record, no notice was issued in
favour of her as required under Section 116 of the Assam
Land and Revenue Regulation, 1886.
72. In Paramesh Sarmah and ors Vs. Islam Ali and ors,
(2002) 3 GLR 1, a coordinate Bench of this Court while dealing
with the provisions of Sections 40 and 53 of the Assam Land
and Revenue Regulation noted that Section 40 of the Assam
Land and Revenue Regulation provides records of rights. The
Settlement Officers has to frame for each estate a record of
right in the prescribed manner. The record of rights is the
Jamabandi based on the Chitha and Fieldmap. Entry in the
record of rights is to be founded on the basis of actual
possession. Undoubtedly at the time of settlement the
Jamabandi is prepared which records the name of the pattadar
on the basis of possession (see AIR 1967 Assam and Nagaland
9 Abdul Hasen and others vs. Haji Mahiuddin and ors). Section
4(1) (2) read with Section 53 of the Assam Land and Revenue
Regulation raises a presumption regarding possession in
W.P (C) 4082 OF 2005 Page 29 of 42
favour of recorded pattadar unless rebutted (See 1952 Assam
34, 40, 41 Pratap Chandra Sarma V. Abannth Sarma).
73. Mr. Shiladitya Datta, learned Counsel for the respondent
No.7 while placing reliance on the Sale deed executed
between the respondent 8 and respondent No. 7 would
contend that the Board of Revenue passed the impugned
order very rightly holding that the order of the ASO and SO
are contrary to the records as available.
74. He further submits that admittedly the petitioner and
the respondent No.7 were married and lived together till 1998,
but thereafter separated. He also contended that for the land
in question, the name of the petitioner was recorded in the
municipal holding but the electricity connection is still in the
name of her deceased father.
75. His further contention is that that the respondent No.7 is
paying the land revenue relating to the land in question.
Learned Counsel also denied the contention of Mr. Kalita inter
alia that the petitioner is the recorded owner of the land since
1993. According to him, the petitioner by way of fraud
obtained mutation order from the revenue Authority.
76. He further contended that admittedly there is a civil suit
filed by the petitioner which is still pending and this court also
stayed the impugned order vide its order dated 6.6.2005.
W.P (C) 4082 OF 2005 Page 30 of 42
77. He further contended that mere non-mutation by the
respondent No. 8 would not itself entitled the petitioner to get
mutation for the land in question when the respondent No.8
purchased the said land admittedly prior to 23.6.1993 and he
finally contended that the petitioner made allegation against
the learned Members of the Board of Revenue but none of
them are personally made party in the instant proceeding.
78. He also urges that Jamabandi was prepared at the time
of settlement and name of the pattadar recorded on the basis
of possession. In the instant case, at the time of resettlement
operation, the respondent No.7 was found in possession on
the basis of Sale deed executed by the respondent No. 8 and
his name was provisionally mutated, though his claim for
mutation initially rejected by the ASO and SO, but
subsequently allowed by the appellate authority by passing
impugned judgment. He also submits that wrong mutation
cannot entitle the petitioner to claim title over the land in
question.
79. Mr. Gogoi, learned Govt. Advocate appearing for the
respondent No.1 to 5 fairly submits that even after full
attempt on his part, he could not collect the record of the
Board of Revenue i.e. the Appellate Court proceedings and
admittedly the Settlement Officer in parawise comments
furnished before the Board of Revenue stated that the record
W.P (C) 4082 OF 2005 Page 31 of 42
relating to the order of mutation passed by the ASO in favour
of the petitioner is missing and it is also admitted position that
the respondent No.8 did not apply for mutation before the
appropriate authority, even after his purchase.
80. Mr. Gogoi further contended that the mutation in the
name of the respondent No.7 was granted on the basis of sale
deed No. 4043 and 3514 of Gauhati Sub-Registrar Office as
executed by the respondent No.8, he finally contended that
admittedly the respondent 1,2,3 and 5 have not filed their
respective counter-affidavit denying the allegations of the writ
petitioner. Hence, the Court may pass any order appropriate
in accordance with law.
81. In the instant case, questions arise for decisions are as
follows:
(1) Whether on the date of order of mutation in favour of
the petitioner, the respondent No. 7 had/have any
cause of right to challenge the order of mutation
granted in favour of petitioner;
(2) Whether the order of the Board of Revenue is hit by
the provisions of Section 148 of the Assam Land and
Revenue Regulations?
(3) Whether the impugned order is also sustainable due
to non-production of relevant Register wherein the
relevant order dated 23.6.1993 was passed by the
ASO in favour of the petitioner?
82. Before dealing with the submission of the learned
Counsel of the parties, it would be proper for the Court to
W.P (C) 4082 OF 2005 Page 32 of 42
discuss about the order passed by the learned Assistant
Settlement Officer, Guwahati in Case No. 3424/92-93 and
3425/92-93 (Annexure-1 and 2 to the writ petition
respectively), wherein it is specifically stated that the case
was registered on the application of the petitioner for
mutation of the land of 2katta 15 lechas and 1katta 10
lechas under Dag No. 936, K.P patta No. 32 and Dag No. 935,
K.P patta No. 305 respectively in Japorigog, Mouza- Beltola
on the basis of gift and possession and on perusal of the
report of the process server stating that notice on behalf of
both sides received by the applicant. ASO also has perused
the report of the Lat Mandal, copy of Jamabandi and Gift
Deed and considering that the petitioner is the only daughter
of the registered Pattadar, Amirul Hoque and as there is no
other child of the pattadar other than the petitioner and no
dispute regarding the possession of the land, mutation was
allowed in the name of the petitioner regarding the aforesaid
plots of land of Amirul Hoque and such order was not
admittedly challenged before 2002 by the respondent No.7
and there is limitation prescribed for making a prayer for
cancellation of the mutation under Section 148 of the Assam
Land and Revenue Regulation which is not admittedly made
neither by respondent No.7 nor respondent No.8.
W.P (C) 4082 OF 2005 Page 33 of 42
83. Respondent No.8 by a statement in a local daily, AJI,
inter alia, stated that he has not purchased the land in
question from the original pattadar, Amirul Haque, the father
of the petitioner, and also did not sell the said land to anybody
as well as he is also not answerable so far as the said land is
concerned. The said publication is not denied by the
respondent No.7. Therefore a doubt has been created
regarding the said sale in the mind of this court. But a writ
court cannot decide whether a sale deed is a genuine one or
not. The appropriate forum is the civil court and so far as the
land in dispute is concerned, there is a civil case pending
before the Civil Judge, Senior Division, No. 2, Kamrup,
Guwahati. Thus it would not be proper to make any comment
regarding the said sale deed.
84. As the question in this case is the mutation which was
ordered in favour of the petitioner and subsequently on the
basis of the prayer of the respondent No.7, the same was
cancelled. Therefore, it would be proper for this court to
restrain itself within the question of limitation.
85. Mutation is nothing but record of rights which is to be
founded on the basis of actual possession. In the instant
case, it is evident from the affidavit in opposition of the
respondent No.4, the Settlement Officer, that the petitioner
was granted mutation in Misc. Case No. 3424/92-93 and
W.P (C) 4082 OF 2005 Page 34 of 42
3425/92-93 on 23.6.1993 and she has subsequently sold a
plot of land measuring 1 katha 10 lechas to one Pranab Kumar
Ghosh under Dag No. 935, K.P. Patta No. 305 by a sale deed
No. 9885 on 16.8.2005 who is now in possession.
86. In case of Abdul Hasem and ors Vs. Haji Mahiuddin
and ors, AIR 1967 Assam and Nagaland 9, a Division Bench
of this Court headed by Mr. Justice G. Mehrotra, Chief Justice
the then, while dealing with a dispute relating to joint landed
property discussed regarding Jamabandi and stated that
entries in the record-of-rights are to be founded on the basis
of actual possession. Undoubtedly at the time of settlement,
the jamabandi is prepared which records the name of the
pattadars on the basis of possession. But in respect of the
annual patta the entry is bound to change from year to year.
It is also noted that when the land is an annual patta land, the
settlement entry of cannot be conclusive proof of the fact that
all along the patta was in the name of Mahiuddin.
87. In Sukumari Dev & ors Vs. On the death of
Manindra Ch. Dev, his legal heirs Madan Dev and ors,
(1991) 1 GLR 236, a coordinate Bench discussed about the
provisions of Section 154 (1)(c) of the Assam Land and
Revenue Regulation, 1886 as well as Section 62 of the said
Regulation and held that civil court is the best authority to
decide the title over property to any person and can also
W.P (C) 4082 OF 2005 Page 35 of 42
direct cancellation of mutation in the revenue record and that
Section 154 of the Assam Land and Revenue Regulation, 1886
is not a bar for issuing such a direction for cancellation. It is
further held that entry in the revenue record does not confer
any title on any person and at best it a piece of evidence.
88. In Dayal Hari Paul & ors Vs. Pradip Kumar Lahkar
& ors, 2006 (3) GLT 680, a coordinate Bench of this Court
while dealing with the provisions of Section 50 of Assam Land
and Revenue Regulation, 1886, held that order of mutation is
only to facilitate payment of land revenue and the Revenue
Court is not entitled to decide the title in respect of landed
property which is the subject matter of Civil Court. The Apex
Court also in various decisions held that the order of mutation
does not confer any title. (See Smt. Sawarni Vs. Smt. Inder
Kaur and ors, 1996(6) SCC 223.
89. Before cancellation of the mutation of the land as
recorded in favour of the petitioner, the Revenue Board should
have consulted the Municipal record and the statement of
witnesses and when admittedly the respondent No. 8 did not
get the possession of land in question before sale of the land
in question to respondent No.7, the duty of the learned
Revenue Board was to examine the witnesses and also to
consider the enquiry report relating to the possession over the
land in question.
W.P (C) 4082 OF 2005 Page 36 of 42
90. It also appears from record that the dispute over
possession was still on and it was challenged time and again.
It cannot be said that at the relevant time of mutation in the
year 1993, neither the respondent No.7 nor the respondent
No. 8 was in possession and being possession is the sine qua
non for mutation of record of right, according to this Court,
the Assistant Settlement Officer on proper enquiry of the Lat
Mandal report rightly mutated the land in favour of the
petitioner.
91. As the respondent No.8 by way of paper statement
made it clear that in no way he is involved with the land in
question as he neither purchased the said land from the
original pattadar, the father of the petitioner nor sold the
same to the respondent No.7, therefore, his possession over
the land in question does not arise at all. And when the
respondent No.8 was not in possession, admittedly, at the
time of execution of the alleged sale deed in favour of the
respondent No.7 and thereafter till 2002, the respondent No.7
was also not in possession, particularly, when he himself
deposited the municipal taxes in the name of the petitioner
with the GMDA, then it can be easily held by this Court that
the Respondent No.7 was aware about the oral gift as well as
order of mutation in the year 1993 and subsequent recording
the municipal holding in favour of the petitioner as he himself
W.P (C) 4082 OF 2005 Page 37 of 42
deposited the amount with the GNDA in favour of the
petitioner. The contention of the petitioner to that aspect has
also not been reverted by the respondent No.7.
92. This Court is also further opinion that the investigating
authority of the case filed by the petitioner in the CID police
station is not authorized to decide regarding the genuineness
of the sale deed executed allegedly in favour of the
respondent No.7 by the respondent No.8 and also relating to
the possession over the land, as that was not subject matter
of that case.
93. In Mahboob Sahab (supra), the Apex Court considered
the essential requirement so far as the validity of a gift under
the provisions of Mohammedan law and said that it is essential
to the validity of a gift that the donor should divest himself
completely of all ownership and dominion over the subject of
the gift as required under Section 148 and also said that under
Section 147 of the Principles of Mahomedan Law by Mulla, 19th
Edn. Edited by Chief Justice M. Hidayatulla, envisages that
writing is not essential to the validity of a gift either of
moveable or of immovable property. The Apex Court also held
that it would, thus, be clear that though gift by a
Mohammedan is not required to be in writing and
consequently need not be registered under the Registration
Act; for a gift to be complete, there should be a declaration of
W.P (C) 4082 OF 2005 Page 38 of 42
the gift by the donor; acceptance of the gift, expressed or
implied, by or on behalf of the donee, and delivery of
possession of the property, the subject-matter of the gift by
the donor to the donee. The donee should take delivery of the
possession of that property either actually or constructively.
On proof of these essential conditions, the gift becomes
complete and valid. In case of immovable property in the
possession of the donor, he should completely divest himself
physically of the subject of the gift. No evidence has been
adduced to establish declaration of the gift, acceptance of the
gift by or on behalf of the minor or delivery of possession or
taking possession or who had accepted the gift actually or
constructively.
94. In the instant case, it is the admitted position that the
original pattadar/ donor Amirul Haque never raised his voice
regarding mutation of the land in favour of the petitioner
during his life time and it is also admitted position that the
donee petitioner had also taken possession of the land in
question in the life time of donor and entered with an
agreement with the tenants of the donor in his life time in
which the respondent No.7 was admittedly an witness.
Therefore, it cannot be said that the land in question was not
gifted with the petitioner donee by her father donor.
W.P (C) 4082 OF 2005 Page 39 of 42
95. From the aforesaid decision in Mahboob Sahab,
(supra), the contention of Mr. Kalita, inter alia, that gift by a
mahammedan to another Mohammedan is not required to be
in writing and consequently need not be registered under the
Registration Act and gift being completed after taking
possession by the petitioner herein, has some force.
96. In Ram Niwas Todi and another (supra), the Apex
Court again reiterated the principle relating to gift made by a
Mohammedan would prevail over the provisions in the tenancy
laws, which required occupancy rights to be transferred by
means of a registered deed. It also noted that it was
unnecessary for the High Court entering into such controversy
and putting the tenancy laws at a disadvantage over Muslim
personal law.
97. In the instant case, once the land is mutated in the
name of the petitioner being donated by her father on the
basis of oral gift, and mutated in her favour during the life
time of her father, the same cannot be questioned by
subsequent application by any other person after the period
of limitation as prescribed under Section 148 of the Assam
Land and Revenue Regulation unless the land is in possession
of latter person and land is registered to him by person in
whose name the land is mutated in the revenue record though
W.P (C) 4082 OF 2005 Page 40 of 42
the latter has the right to claim title over the land in question
by filing a declaration suit in a appropriate case.
98. In the instant case, the possession of the petitioner over
the land in question on the date of mutation in her name is an
admitted fact that would be evident from the pleadings of the
respondent No.4 who in his affidavit specifically stated that a
part of land has already been transferred to one Mr. Pranab
Kumar Ghosh who is in possession in the said land.
99. The Board of Revenue being a quasi judicial authority is
obviously not the necessary party and the Apex Court in Smt.
Jasbir Kaur Sehgal Vs. District Judge, Dehradun & ors,
AIR 1997 SC 3397 noted that it is not proper or even justified
on the part of the appellant to implead the Courts as
respondents, but obviously a tribunal can be a party when
there is specific allegations made against such tribunal or its
member either regarding jurisdiction or allegations of
biasness.
100. In the instant case, in the writ petition, specific
allegations were made regarding functioning of the Board of
Revenue, but the Board of Revenue does not feel it necessary
to file any counter, though represented by the learned Govt.
Advocate. Not only that, the learned Govt. Advocate also
failed to produce the record relating to the mutation
proceedings as well as the appeal proceedings wherein the
W.P (C) 4082 OF 2005 Page 41 of 42
impugned order has been passed. Therefore, the Court can
presume that the allegations of the petitioner are correct
though it is denied by the respondent No.7.
101. In para-wise comments supplied by the Settlement
Officer as asked by Board of Revenue, it is specifically stated
that record relating to the order of mutation passed by the
ASO in favour of the petitioner is missing, then how the Board
of Revenue came to the conclusion that the order dated
23.6.1993 is illegal and consequent thereto, set aside the
same. In its order, the Board of Revenue also did not
discuss the reason that the order of Assistant Settlement
Officer and Settlement Officer dated 23.6.1993 and 4.10.2002
respectively are wrong except stating that the Settlement
Officer has failed to apply his mind when Settlement Officer in
his order gave the reasons for upholding the order of
Assistant Settlement Officer.
102. Section 53 of the Assam Land and Revenue Regulation
says about the presumption regarding the possession in
favour of the recorded pattadar unless reverted. Learned
Board of Revenue while deciding relating to the prayer for
mutation by the respondent No.7 did not consider the said
aspect of the matter and according to this Court, non-
consideration of the relevant document with regard to the
presumption disentitled the Board of Revenue to pass such
W.P (C) 4082 OF 2005 Page 42 of 42
order. The Board of Revenue only considered the question of
mutation as prescribed under Section 50 of the Assam Land
and Revenue Regulation, 1886 to facilitate the payment of the
land revenue and did not decide the question of title as the
Revenue Board is not entitled to decide title in respect of
landed property. In the instant case, the Revenue Board failed
to consider what should be the necessary requirement for
granting mutation.
103. In view of the above, the impugned order dated
20.5.2005 of the Board of Revenue is set aside. Consequent
thereto, the order dated 4.10.02 passed by the Settlement
Officer, Guwahati in R.A 9 of 2002 and the order dated
23.6.93 passed by the Assistant Settlement Officer (ASO),
Guwahati in Mutation Case No. 3424/92-93 and 3425/92-93
and the order dated 18.1.2001 passed by the ASO, Guwahati
in Misc. Case No. 29 of 2000 are affirmed.
104. In the result, the writ petition is allowed. The order of
stay passed earlier by this Court shall stand vacated. No order
as to costs.
JUDGE
mdn