Gauhati High Court
Page No.# 1/14 vs The Assam Board Of Revenue And 2 Ors on 14 August, 2024
Page No.# 1/14
GAHC010170262021
2024:GAU-AS:3258
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5464/2021
DEOKI BERIA
S/O SRI SITARAM BERIA, R/O SAKTI TRADERS, MORAN TOWN, P.O. AND
P.S.MORAN, DIST. DIBRUGARH, ASSAM, PIN 785669
VERSUS
THE ASSAM BOARD OF REVENUE AND 2 ORS
GUWAHATI 01, ASSAM
2:BIKRAM SINGH
S/O HEMO SINGH
R/O WARD NO. 4
SANTIPUR
P.O. AND P.S. MORANHAT
DIST. CHARIDEO
ASSAM.
3:VIVEKANANDA PHUKAN
EX MEMBER
ASSAM BOARD OF REVENUE GUWAHATI
R/O FLAT NO. 204
APURBA BEAUTY APARTMENT
SEWALI PATH
P.O. HATIGAON
GUWAHATI 38
KAMRUP (M)
ASSAM
Advocate for the Petitioner : S N SARMA, MR. K KALITA,MR. R ALI,MR. S K KEJRIWAL
Advocate for the Respondent : SC, REVENUE,
Page No.# 2/14
Linked Case : MC/29/2024
DEOKI BERIA
S/O SRI SITARAM BERIA
R/O SAKTI TRADERS
MORAN TOWN
P.O. AND P.S.MORAN
DIST. DIBRUGARH
ASSAM
PIN 785669
VERSUS
THE ASSAM BOARD OF REVENUE AND 2 ORS
GUWAHATI
PIN 781001
ASSAM
2:BIKRAM SINGH
S/O HEMO SINGH
R/O WARD NO. 4
SANTIPUR
P.O. AND P.S. MORANHAT
DIST. CHARIDEO
ASSAM.
3:VIVEKANANDA PHUKAN
EX MEMBER
ASSAM BOARD OF REVENUE GUWAHATI
R/O FLAT NO. 204
APURBA BEAUTY APARTMENT
SEWALI PATH
P.O. HATIGAON
GUWAHATI 38
KAMRUP (M)
ASSAM.
------------
Advocate for : MR. K KALITA Advocate for : SC REVENUE appearing for THE ASSAM BOARD OF REVENUE AND 2 ORS Page No.# 3/14 :::BEFORE:::
HON'BLE MR. JUSTICE N. UNNI KRISHNAN NAIR Date of hearing : 14.08.2024 Date of Judgment : 14.08.2024 Judgment & order(Oral) Heard Mr. S. K. Kejriwal, learned counsel, appearing on behalf of the petitioner. Also heard Mr. A. Bhattacharyya, learned standing counsel, Assam Board of Revenue, Guwahati, appearing on behalf of respondent No. 1. None appears on behalf of respondents No. 2 & 3.
2. The petitioner, by way of instituting the present writ petition, has presented a challenge to the order, dated 10.09.2021, passed by the learned Member, Assam Board of Revenue, Guwahati, in Revenue Appeal No. 8(Cha)/2019.
3. As projected in the instant writ petition; the father of the petitioner, herein, had purchased a plot of land measuring 2 kathas 1 Lecha covered by Dag No. 299 and Periodic Patta No. 149/67 of Mahamora Mouza, Moran Town, in the District of Charaideo, from its earlier owner Nikunja Mohan Bhagwati. After the said sale was so effected and on execution of the sale deed; the said plot of land was mutated in the name of the father of the petitioner in the revenue records vide order, dated 04.02.1970, passed by the competent authority.
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4. It is stated that the father of the petitioner, during his lifetime, had engaged one Shri Bir Singh, the Uncle of the respondent No. 2, herein, to look-after the property. A temporary house was also constructed for the accommodation of Shri Bir Singh on a portion of the aforesaid land. Shri Bir Singh subsequently left the job and accordingly, the father of the petitioner engaged one Shri Hemo Singh who was his brother and father of the respondent No. 2, herein, to look-after the said plot of land. On account of the illegal activities as done by Shri Hemo Singh over the plot of land, including cutting of valuable trees without permission; he was required to vacate the premises. However, Shri Hemo Singh refused to vacate the said plot of land and raised a claim over the aforesaid land where he was so accommodated in connection with his works. The said action led the petitioner, herein, to institute a proceeding in the form of a Title Suit being Title Suit No. 33/2008 before the Court of learned Civil Judge, Sivasagar, seeking a decree for declaration of his right, title and interest over the plot of land, in question, as well as for ejectment of Shri Hemo Singh from the house so constructed over the said plot of land of the petitioner where he was permitted to stay to look- after the property.
5. The Court of the learned Civil Judge, Sivasagar, on conclusion of the trial involved, wherein, the said Shri Hemo Singh had also contested the matter; proceeded vide judgment & order, dated 23.12.2013, to declare the right, title and interest of the father of the petitioner, herein, over the said plot of land and also issued directions for ejectment of Shri Hemo Singh and his family members therefrom. A decree was also drawn in the matter.
6. The decree was put up for execution in Title Execution Case No. 05/2014 and the same was executed vide order, dated 14.10.2015, passed by the Page No.# 5/14 learned Executing Court, putting the petitioner in possession of the decretal land with due process. No appeal came to be filed against the said decree, by said Shri Hemo Singh, father of the respondent No. 2, herein, and the same is contended to have attained finality. However, during the pendency of the execution proceeding; the said Shri Hemo Singh had approached this Court by way of instituting a Civil Revision Petition being CRP No. 337/2014, challenging the order, dated 04.08.2014, passed by the learned Executing Court in Title Execution Case No. 05/2014. The said CRP No. 337/2014, came to be dismissed for non-prosecution vide order, dated 19.01.2015. Although a petition was filed for restoration of the said Civil Revision Petition; the same, however, was withdrawn by said Shri Hemo Singh on 23.02.2015, and the Misc. Case being MC No. 421/2015 so instituted, came to be dismissed, vide order, dated 23.02.2015, as not pressed. In terms of the decision of the competent Court of civil jurisdiction; the petitioner has contended that he and his family members were peacefully possessing the said plot of land.
7. The respondent No. 2, herein, who is the son of the judgment debtor in Title Suit No. 33/2008, by suppressing the fact that a decision was already rendered by a competent Court of civil jurisdiction pertaining to the land, in question, as well as the title thereon of the petitioner, herein; proceeded to institute a Revenue Appeal being Revenue Appeal No. 8(Cha)/2019, before the Assam Board of Revenue, Guwahati, questioning the mutation order, dated 04.02.1970, so passed by the Sub-Divisional Commissioner, Sonari, in Mutation Case No. 27/1970. The present writ petitioner entered appearance in the said Revenue Appeal No. 8(Cha)/2019 and submitted his written statement therein, by bringing on record, all the decisions as passed by the competent Court of civil jurisdiction in the matter and prayed for dismissal of the said Revenue Appeal No. 8(Cha)/2019, so instituted by the respondent No. 2, herein.
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8. It is to be noted that along with the said Revenue Appeal No. 8(Cha)/2019, so filed by the respondent No. 2, herein; an application for condonation of delay invoking the provisions of Section 5 of the Limitation Act, 1963, was also instituted.
9. It is seen that the Assam Board of Revenue, Guwahati, had required the records of the proceeding of the said mutation case to be produced before it. However, it is contended that without receipt of such records; vide an order, dated 10.09.2021, basing on a report, also dated 10.09.2021, purportedly, issued by the Office of the Sub-Registrar, Charaideo, proceeded to allow the said Revenue Appeal No. 8(Cha)/2019, by interfering with the mutation so made in favour of the father of the petitioner, herein, on 04.02.1970, with further direction to the Deputy Commissioner, Charaideo, to restore the name of the original pattadar i.e. Nikunja Mohan Bhagwati and also to put the name of the respondent No. 2, herein, in possession of the said plot of land. The matter was then remanded back to the Deputy Commissioner, Charaideo, for taking-up the issue as per the provisions of the Assam Land & Revenue Regulation, 1886.
10. Being aggrieved; the petitioner, herein, has instituted the present proceeding.
11. Mr. Kejriwal, learned counsel for the petitioner, at the outset, has submitted that the order of the Assam Board of Revenue, Guwahati, dated 10.09.2021, is clearly not sustainable, inasmuch as, such appeal was so entertained by it without first considering the application filed by the respondent No. 2, for condonation of the delay inspite of the fact that in the earlier orders so passed in the proceeding; the same was directed to be so Page No.# 7/14 considered.
12. Mr. Kejriwal, learned counsel, has further submitted that in pursuance to the decree passed vide judgment & order, dated 23.12.2013, by the learned Civil Judge, Sivasagar, in Title Suit No. 33/2008; the Executing Court had vide order, dated 14.10.2015, in Title Execution Case No. 05/2014, put the petitioner, herein, in possession of the said plot of land and also evicted the predecessor-in-interest of the respondent No. 2 from the said land.
13. Mr. Kejriwal, has also submitted that although a Civil Revision Petition being CRP No. 337/2014, was so instituted before this Court by the father of the respondent No. 2, herein, however, the same was so dismissed for non- prosecution, vide order, dated 19.01.2015. The learned counsel has further submitted that the application so filed by the father of the respondent No. 2, for restoration of CRP No. 337/2014, was also dismissed by this Court, subsequently, as not pressed.
14. Mr. Kejriwal, learned counsel for the petitioner, has submitted that it was not open for the respondent No. 2, herein, to challenge a mutation effected around 51 years back i.e. on 04.02.1970 in Mutation Case No. 27/1970 and thereby, question the title of the petitioner's father late Sitaram Beria, which title was already given a finality in pursuance to the judgment & order, dated 23.12.2013, passed by the learned Civil Judge, Sivasagar, in Title Suit No. 33/2008.
15. Mr. Kejriwal, learned counsel, has further submitted that the impugned order, dated 10.09.2021, was so passed by the learned Member, Assam Board Page No.# 8/14 of Revenue, Guwahati, on 10.09.2021, i.e. the date on which, he had submitted his resignation.
16. Mr. Kejriwal, learned counsel, has submitted that the respondent No. 2, herein, in the year 2019, itself, had instituted a Title Suit No. 28/2019, before the Court of learned Civil Judge, Sivasagar, pertaining to the same plot of land and has prayed for a declaration of his right, title, interest and possession, thereon, contending to be a permissive possessor of the said land from its original pattadar, namely, Nikunja Mohan Bhagwati. The learned counsel has further submitted that in the Title Suit No. 28/2019 so instituted; the respondent No. 2 had also prayed that the mutation so effected in the name of the father of the petitioner and then subsequently, upon his legal heirs in place of the original pattardar Nikunja Mohan Bhagwati; to be illegal in the absence of any deed of conveyance as well as actual physical possession over the said plot of land. In the said Title Suit No. 28/2019; the respondent No. 2 has prayed that the decree vide judgment & order, dated 23.12.2013, as passed in Title Suit No. 33/2008 as well as the orders passed in Title Execution Case No. 05/2014, by the competent Court of civil jurisdiction; to be declared invalid.
17. It is contended by Mr. Kejriwal, learned counsel for the petitioner, that inspite of the petitioner having instituted the Title Suit No. 33/2008, before the impugned order, dated 10.09.2021, came to be so passed by the Member, Assam Board of Revenue, Guwahati; the institution of the said Title Suit No. 33/2008 before the competent Court of civil jurisdiction at Sivasagar, was not disclosed by the respondent No. 2, in the proceeding so instituted by him before the Assam Board of Revenue, Guwahati.
18. Mr. Kejriwal, learned counsel, has further submitted that the learned Page No.# 9/14 Member, Assam Board of Revenue, Guwahati, in his order, dated 10.09.2021, has relied on a search report, dated 10.09.2021, as purportedly furnished before the Board by the respondent No. 2, herein, as an appellant, for the purpose of recording his findings in the order, dated 10.09.2021. It is contended by the learned counsel that the said search report, dated 10.09.2021, was so issued on 10.09.2021, by the Sub-Registrar, Charaideo, at Charaideo. The records of the "Issue and Receipt Register of the Office of the Assam Board of Revenue, Guwahati" as on 10.09.2021; does not indicate receipt of any search report from the Sub-Registrar, Charaideo. The learned counsel has further contended that given the distance between the office of the Deputy Commissioner, Sivasagar, and the establishment of the Assam Board of Revenue, which is situated at Guwahati, it was not humanly possible to place the search report, dated 10.09.2021, before the learned Member, Assam Board of Revenue, Guwahati, on 10.09.2021, itself, when the said matter was taken-up for consideration.
19. Mr. Kejriwal, learned counsel, has contended that although the learned counsel for the petitioner had submitted his hazira in the matter on 10.09.2021, however, the said case was not taken-up for consideration on the said date i.e. 10.09.2021, but, subsequently, on inquiry; it was found that the matter was so projected to have been taken-up on 10.09.2021, and the impugned order, dated 10.09.2021, was so contended to have been passed.
20. Mr. Kejriwal, learned counsel, has submitted that without condonation of the delay involved in the matter; the learned Member, Assam Board of Revenue, Guwahati, could not have taken-up the Revenue Appeal No. 8(Cha)/2019, for consideration and as such; the said order, dated 10.09.2021, so passed by the learned Member, Assam Board of Revenue, Guwahati, is Page No.# 10/14 illegal and without jurisdiction.
21. In support of his claim, Mr. Kejriwal, learned counsel for the petitioner, has relied upon the decision of a co-ordinate Bench of this Court rendered in the case of Dhebor Gohain Baruah v. Assam Board of Revenue at Guwahati & ors., reported in 2018 (3) GLR 133.
22. Per contra, Mr. Bhattacharyya, learned standing counsel, Assam Board of Revenue, Guwahati, has submitted that the issue involved, herein, is a private dispute between the petitioner and the respondent No. 2, herein, and accordingly, this Court would pass appropriate directions on consideration of the materials available on record.
23. I have heard the learned counsels appearing for the parties and also perused the materials available on record.
24. The facts as noticed hereinabove, is not disputed by either of the parties to the present proceeding.
25. The said facts would go to show that pertaining to the said plot of land; the petitioner, herein, had instituted the Title Suit No. 33/2008 before the learned Civil Judge, Sivasagar, seeking a decree for declaration of his right, title and interest over the said plot of land, and also for ejectment of one Shri Hemo Singh who happens to be the father of the respondent No. 2, herein. The said Title Suit No. 33/2008 was decreed vide judgment & order, dated 23.12.2013, in favour of the petitioner, herein.
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26. In pursuance to the said decree being so obtained as a decree holder, the petitioner, herein, had instituted the Title Execution Case No. 05/2014, and vide order, dated 14.10.2014, the Executing Court had put the petitioner into possession of the land, in question, by evicting the father of the respondent No. 2, herein.
27. As noticed hereinabove, no appeal was so filed in the matter. However, a Civil Revision Petition being CRP No. 337/2014 was so instituted before this Court by the father of the respondent No. 2, herein, but, the same was dismissed by this Court vide order, dated 19.01.2015, for non-prosecution. Thereafter, an application being Misc. Case No. 421/2015, as filed by the father of the respondent No. 2 for restoration of the said CRP No. 337/2014, was also dismissed by this Court, vide order, dated 23.02.2015, on not being pressed.
28. It is seen from the appeal memo as filed by the respondent No. 2, herein, leading to the registration of the Revenue Appeal No. 8(Cha)/2019, before the Assam Board of Revenue, Guwahati; there was no disclosure made about the decree as passed vide judgment & order, dated 23.12.2013, by the competent Court of civil jurisdiction in Title Suit No. 33/2008 as well as the orders passed in the Title Execution Case No. 05/2014 so instituted, thereafter. The said aspect of the matter was clearly suppressed by the respondent No. 2 while instituting the proceedings before the Assam Board of Revenue, Guwahati.
29. It is seen that the petitioner, herein, in his written statement-cum- objection as filed in Revenue Appeal No. 8(Cha)/2019, had brought on record, all relevant particulars with regard to the civil proceedings so initiated and Page No.# 12/14 concluded with regard to the plot of land, in question, and the decisions so arrived at by the competent Court of civil jurisdiction in the matter as well as the subsequent proceedings so initiated in the matter.
30. It is also seen that the present Revenue Appeal No. 8(Cha)/2019, was so instituted by the respondent No. 2, herein, much after the period of limitation for institution of such proceeding had elapsed. Although an application for condonation of delay by invoking the Section 5 of the Limitation Act, 1963, was so filed by the respondent No. 2, herein; however, it is to be noted that the said application was never considered and disposed of, on merits, by the Assam Board of Revenue, Guwahati, on a date prior to 10.09.2021.
31. A perusal of the order, dated 10.09.2021, disposing of the said Revenue Appeal No. 8(Cha)/2019, would also go to reveal that the issue of condonation of delay was not admittedly taken into consideration before the matter was so taken-up for consideration on merits. On the said grounds itself; the order, dated 10.09.2021, cannot be sustained and would require interference by this Court.
32. As contended by the petitioner in the present proceeding; the respondent No. 2 had instituted the Title Suit No. 28/2019 during the period, the said Revenue Appeal No. 8(Cha)/2019, so instituted by him, was pending consideration before the Assam Board of Revenue, Guwahati. However, the said aspect of the matter was also suppressed by the respondent No. 2 in the proceeding so initiated by him before the Assam Board of Revenue, Guwahati.
33. The right, title and interest of the petitioner, herein, having already been Page No.# 13/14 determined by a competent Court of civil jurisdiction and which determination was also for ejectment of the predecessor in interest of the respondent No. 2, herein, it was not open to the Assam Board of Revenue, Guwahati, to consider the same very issue which had already attained its finality on account of the decisions so made thereon, by a competent Court of civil jurisdiction. Accordingly, the said aspect not having been so considered by the Assam Board of Revenue, Guwahati, while proceeding to draw its conclusions, the impugned order, dated 10.09.2021, in the considered view of this Court; has rendered the order, dated 10.09.2021, void ab initio.
34. Having drawn above conclusions; this Court would now refer to the decision as rendered by a co-ordinate Bench of this Court in the case of Dhebor Gohain Baruah(supra). This Court in the said decision, had held that a mutation order was appealable under Section 147 of the Assam Land & Revenue Regulation, 1886, and the limitation period for such appeal, is also prescribed. It further proceeded to hold that the Assam Board of Revenue, Guwahati, could not have maintained a belated challenge against a mutation order passed in favour of the father of the petitioner, therein.
35. This Court, in the said decision, also held that although the Assam Board of Revenue, Guwahati, undoubtedly, possess a revisional power under Section 151 of the Assam Land & Revenue Regulation, 1886, but such power could not have been exercised in a matter which stood concluded 20 years earlier.
36. Applying the said decision of the co-ordinate Bench of this Court in the case of Dhebor Gohain Baruah(supra) to the present proceeding; it is seen that the mutation of the plot of land so involved, had stood concluded in the year 1970, itself, and thereafter, the same was given a finality on account of Page No.# 14/14 the decisions rendered in the matter by the learned Civil Judge, Sivasagar, in Title Suit No. 33/2008. The said decree in the matter, was also executed. Accordingly, the Assam Board of Revenue, Guwahati, admittedly, could not have passed the impugned order, dated 10.09.2021, which has the effect of overreaching the decree so passed in the matter in connection with the plot of land, in question, by a competent Court of civil jurisdiction.
37. As noticed hereinabove, the learned Member, Assam Board of Revenue, Guwahati, had proceeded to consider the Revenue Appeal, on merits, although an application for condonation of delay was also filed, which admittedly, was not considered. Given the long delay occasioning in filing of the Revenue Appeal by the respondent No. 2, and the settled position as obtaining in the matter, it can be safely concluded that the learned Member, Assam Board of Revenue, Guwahati, had passed the order, dated 10.09.2021, in Revenue Appeal No. 8(Cha)/2019, clearly without jurisdiction.
38. Accordingly, for the conclusions reached hereinabove; including the conclusion that the order, dated 10.09.2021, was so admittedly passed by the Assam Board of Revenue, Guwahati, without jurisdiction; this Court proceeds to set aside and quash the order, dated 10.09.2021, passed by the Assam Board of Revenue, Guwahati, in Revenue Appeal No. 8(Cha)/2019.
39. With the above directions and observations, this writ petition, accordingly, stands allowed.
JUDGE Comparing Assistant