Disposed

MD Sahadat Ali and 3 Ors. v. the Assam Board of Revenue , Guwahati and Ors.

Gauhati HC1 Feb 2018WP(C)/2392/2010

Case brief

AI extract

What is this about?

Writ petition challenging a mutation order by the Assam Board of Revenue. The court held that disputed questions of title must be decided by the Civil Court. Since a title suit was pending, the mutation claim is to be governed by the Civil Court decree, and status quo is ordered.

What did the court decide?

The claim of mutation by rival parties to be governed by the decree in Title Suit No. 359/2012. Parties to maintain status quo regarding possession.

MD Sahadat Ali and 3 Ors. Vs the Assam Board of Revenue… — Land Acquisition | Gauhati HC (2018)

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GAHC010164132010

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C) 2392/2010

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1:MD SAHADAT ALI and 3 ORS

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2: MD AZAD ALI

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3: MD MUSLIM ALI ALL SONS OF LATE MOHAR ALI

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4: MUSTT. AMINA BEGUM WIFE OF LATE ISMAIL ALI ALL ARE RESIDENTS OF NORTH JALUKBARI P.O. AND P.S. JALUKBARI GUWAHATI DIST. KAMRUP ASSA

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VERSUS

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1:THE ASSAM BOARD OF REVENUE , GUWAHATI and ORS REP. BY IS CHAIRMAN.

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2:MD. GIASUDDIN AHMED

3:MD. JULFI ALI

4:MD SAHABUDDIN ALI

5:MD. JUDER ALI

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6:MUSTT. HASEN BANU

NOS. 2 TO 5 ARE THE SONS AND NO. 6 IS THE WIFE OF LATE IDRISH ALI

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7:MD. ISHA HAQUE

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SON OF LATE UNUS ALI ALL ARE RESIDENTS OF NORTH JALUKBARI P.O. AND P.S. JALUKBARI GUWAHATI DIST. KAMRUP ASSAM

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Advocate for the Petitioner : MD.S ALI

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Advocate for the Respondent : MRG P BHOWMIK

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BEFORE HONOURABLE MR. JUSTICE SUMAN SHYAM

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ORDER

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Date : 01-02-2018

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Heard Mr. S. Ali, learned counsel for the petitioner. I have also heard Mr. G.P. Bhowmik, learned senior counsel representing the respondent nos. 2 to 7. Mr. S.R. Baruah, learned Government Advocate, Assam, appears for respondent no. 1.

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The judgement and order dated 11/02/2010 passed by the Chairman, Assam Board of Revenue, Guwahati in Appeal case no. 75 RA(K)/09 is under challenge in this writ petition. The petitioner and the private respondents are the decedents of common ancestor, viz. Md. Amir Uddin, who was the owner of a plot of land measuring 6 Bighas 2 Kathas and 1 Lecha, covered by Dag nos. 92 and 142 (old) and Patta No. 33/14 (old) and 58(new) as well as Dag No. 634(new) of VillageMaligaon of Mouza Jalukbari in the district of Kamrup at Guwahati. Md. Amir Uddin had two daughters, viz. Smt. Mabu and Smt. Alegi. Smt. Tupuri Musalmani, who was the predecessor in interest of the writ petitioners, was the daughter of Smt. Mabu whereas Smt. Armani Nessa i.e. the predecessor in interest of the private respondent, was the daughter of Smt. Alegi. Armani Nessa married Yunus Ali and out of their wedlock, 3 (three) sons and one daughter were born, who are the

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private respondents in this case.

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According to the petitioners, Smt. Mabu inherited 3 Bighas from her father Md. Amir Uddin. The said polit of land devolved upon Tupuri Musalmani. Out of the said 3 Bighas, land measuring 2 Bighas was acquired by the Railways leaving behind 1 (one) Bigha, which land was inherited by her three sons and daughter i.e. the writ petitioners herein. The dispute arose when the name of late Idris Ali i.e. the father of the respondents was entered into the draft Chita in respect of the said 1 Bigha as the owner of the land.

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When the application filed by the petitioners before the Assistant Settlement Officer seeking cancellation of the entry of the name of sons of Yunus Ali i.e. Idris Ali and Md. Isha Hoque made in the draft Chita was rejected by the order dated 09/08/2007, the petitioners had filed Misc. Case No. 102/07-08 under Section 151 of the Assam Land and Revenue Regulations before the Settlement Officer, Guwahati, which was allowed by the order dated 18/10/2008, whereby, the Settlement Officer had ordered for cancellation of the mutation granted in favour of the predecessor in interest of the respondents herein. Aggrieved thereby, the respondents had preferred an appeal being case No. 75 RA(K)/2009 before the Assam Board of Revenue at Guwahati, which was allowed by the impugned judgement and order dated 11/02/2010, which order is under challenge in the present writ petition.

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By referring to the observations made by the learned Board of Revenue in the impugned order, Mr. Ali has argued that the sole basis on which the decision of the Settlement Officer was interfered with by the Board of Revenue is that the land measuring 1 Bigha belonging to Tupuri Musalmani was sold by her to Yunus Ali i.e. the husband of Arman Nessa and accordingly the learned Revenue Board had observed that the legal heirs of Arman Nessa and Yunus Ali i.e. Idris Ali and Isha Hoque were entitled to get mutation in respect of the said plot of land. Mr. Ali, however, contends that no such sale deed was ever produced by the respondents before the Board of Revenue or any authority so as to sustain such a conclusion. That apart, submits Mr. Ali, the contention of the respondents raises disputed questions of title over the land which cannot be decided by any Revenue Authority including

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the Board of Revenue. Mr. Ali, therefore, submits that the impugned judgement and order dated 11/02/2010 be set aside on the ground that the same is vitiated by complete perversity and error of jurisdiction.

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Responding to the said argument, Mr. G.P. Ghowmik, learned senior counsel for the private respondents has argued that the order passed by the Settlement Officer on 18/10/2008 also suffers from similar error of jurisdiction inasmuch as the observations made in the said order also touches upon questions of title and legal heir ship of the parties, which forms the basis of the order of cancellation of draft Chita. According to Mr. Bhowmik, the Settlement Officer while deciding an application seeking mutation/cancellation of mutation cannot go into the question of title over the land and make any observation in respect thereof. By referring to a decision of this Court rendered in the case of Sukumari Dev & Ors. Vs. On the death of Manindra Ch. Dev his Legal Heirs Madan Dev and others reported in 1991(1) GLT 236, Mr. Bhowmik submits that it is the Civil Court which is the appropriate forum to decide all disputed question concerning title and possession over land and as such, it was not correct for the Settlement Officer to make such declaration.

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Law is firmly settled by a long line of authorities that all questions of title over immovable property is to be decided by the Civil Court of competent jurisdiction and the Revenue authorities would not have any jurisdiction to make a declaration on the question of title over any land . In the present case, I find that there is a serious dispute as to whether Yunus Ali i.e. the husband of Smt. Arman Nessa had ever purchased the plot of land measuring 1 Bigha from Smt. Tupuri Musalmani, as has been claimed by the respondents. The Board of Revenue has also recorded a finding that no document of title could be produced by the respondents in support of their aforesaid claim. Under the circumstances, the observations made by the learned Revenue Board recognising the title of Idris Ali and Isha Hoque over the land clearly appears to be without any basis.

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The learned counsel for the parties have invited the attention of this Court to the pendency of the Title Suit No. 395/2012 in the Court of Civil Judge no. 3, Kamrup, Guwahati by and between the

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same parties, wherein the question of right, title, interest and possession as well as prayer for partition of ancestral land including the present plot of land is pending disposal. If that be so, it is the Civil Court which alone that can pass a valid decree declaring the right, title and interest of the parties over such plot of land including the 1Bigha plot which is the subject matter of the present case.

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Section 100 of the Assam Land and Revenue Regulations, 1886 makes it clear that wherever there is an objection regarding title over a plot of land, the Revenue Authorities will be guided by the decree to be passed by the Civil Court. Since there is a Civil suit which is admittedly pending between the parties concerning the same plot of land, any observation/declaration made by the Revenue authorities including the Settlement Officer and Board of Revenue would be in-consequential in the matter since the Civil Court would be obliged to decide the question of title of the parties over the land based on independent evidence brought on record which are admissible in the eye of law.

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In view of the above, I dispose of the writ petition by providing that the claim of mutation made by the rival parties over the plot of land measuring 1 Bigha will be governed by the decree that may be passed by the Civil Court in Title Suit No. 359/2012. Until such time, the parties to maintain status quo as regards possession of the plot of land. This order would, however, be subject to any further order that may be passed by the learned Civil Court in Title Suit No. 359/2012.

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Writ petition is accordingly disposed of.

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LCR be send back immediately.

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JUDGE

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Sukhamay

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Comparing Assistant

MD Sahadat Ali and 3 Ors. v. the Assam Board of Revenue , Guwahati and Ors.

Case brief

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MD Sahadat Ali and 3 Ors. v. the Assam Board of Revenue , Guwahati and Ors.

Case brief

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