Decided on May 16,1973

Fulbarunessa Appellant
The Assam Board Of Revenue, Gauhati And Another Respondents


B.N. Sarma, J. - (1.) THIS application under Article 226 of the Constitution is directed against the judgment and order of the Assam Board of Revenue dated 7 -12 -1970 passed in Case No. 332 RA/68, by which it set aside the order of the Sub -Divisional Officer, Barpeta dated 13 -8 -1968 passed in R. A. No. 293/65 -66, as well as that of the Assistant Settlement Officer, Baghbor Circle dated 29 -11 -1961 passed in Dispute Case No. 2, which was affirmed by the Sub -Divisional Officer, Barpeta in the said appeal.
(2.) THE Dispute Case No. 2 was initiated by the Assistant Settlement Officer, Baghbor Circle, during the last settlement operation on an application filed by the petitioner Mt. Falbarunessa claiming mutation of her name in respect of 8 bighas and odd land in two dags, namely dag Nos. 213 and 233 of an annual patta of village Gobindapur, Mouzh Jania, standing in the name of respondent No. 2 Pandit Ali. It was alleged by the petitioner in that petition that her mother Sarifunnessa along with her (Sarifunnessa's) mother Mt. Jurfannessa and brother Pandit Ali jointly purchased the entire land of the patta from the original pattadar Isu Dewani under a registered sale deed dated 21 -12 -1934 and obtained possession, but the name of respondent No. 2 Pandit Ali alone was mutated in the patta after this purchase. All the same, it was alleged that the petitioner's mother was in possession of her 'share (which is the disputed land) all along and later made a gift of the same in favour of the petitioner under an unregistered deed dated 3rd Falgoon, 1344 B. S. and accordingly the petitioner is in possession of the land since then by paying land revenue. The respondent No. 2 resisted that petition. The Assistant Settlement Officer, after due inquiry allowed the application of the petitioner by his order dated 29 -11 -1961 and ordered issue of a separate patta in her name. Accordingly a separate patta namely periodic patta No. 36 of village Gobindapur was issued in the name of the petitioner. Against the aforesaid order of the Assistant Settlement Officer, the respondent No. 2 filed an appeal before the Settlement Officer on 19 -7 -1962 with a footnote in the memorandum of appeal as below: - - N. B. Petition for certified copy of the order appealed against was submitted within a week of the order but copies could not be obtained in that petition. Certified copy of the order has been received on 16 -7 -1962 on a fresh petition submitted on 11 -6 -1962 and this appeal is not therefore time barred. The Settlement Officer admitted the appeal on that very day and it remained pending in his file till 9 -9 -1965, on which date he transferred the appeal to the Sub -Divisional Officer, Barpeta, as the settlement operation in Baghbor Circle was closed with effect from 1 -3 -1965. The learned Sub -Divisional Officer, on hearing both the parties, dismissed the appeal on merit as well as on the ground that it was barred by limitation.
(3.) BEING aggrieved by the order of the Sub -Divisional Officer, the respondent No. 2 preferred an appeal before the Board of Revenue under Section 147 of the Assam Land and Revenue Regulation. In deciding the appeal, on the question of limitation the Board observed: As regards the question of the appeal being time barred, as mentioned by the S. D. O., Barpeta, we are inclined to agree with the submission of the Advocate for the appellant that this point was already decided when S. O., Kamrup admitted the appeal in 1962. On merit also the Board reversed the finding of the Sub -Divisional Officer. In the result the appeal was allowed and the orders of both the Sub -Divisional Officer and the Assistant Settlement Officer were set aside.;

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