Decided on November 14,1994


Referred Judgements :-



- (1.)This writ petition has arisen against the judgement and order dated 4.5.1989 passed by the leamaxl Assam Board of Revenue, Guwahati in Case No. 219 RA (N)/88 dismissing the petitioner's appeal and also against the impugned notice dated 18.11.88 issued by the Sub Deputy Collector, Nagaon Circle ordering the petitioner to vacate possession of 24 lechas of, land described in the said notice: by removing his latrine house and tube wen therefrom.
(2.)The case of the petitioner is that the petitioner purchased 13 lechas of land covered by dag No. 313 of periodic patta No. 98 new (88 old) in town Kachalukhowa Kishan in Mouza town, district Nagaon and the petitioner got his name mutated in the patta in respect of the aforesaid land. It is contended that the petitioner has been possessing the said land ascertaining and demarcating its boundaries by physically residing over the said land where on he has residential house, bath rooms, sanitary latrine, tube wen etc. The land was purchased by the petitioner prior to the purchase of the respondent No. 3 constructing his house: under the Nagaon Municipal Board being holding No. 61 and has been paying the Municipal Tax and land revenue regularly. The patta No. 98 new (88 old) contains 1 Katha 14 Lechas of land in total out of which the petitioner purchased and is in possession of 13 lechas of land as aforesaid. There are other three pattadars in the said patta including Shri Baidya Nath Dutta, respondent No. 3, who claims 133/4 Lechas as his share; that petitioner's brother Amalesh Chandra Paul is also a pattadar in respect of 6 Lechas of land and he has been possessing his share physically. Another person Sri Dhiraj Das is also a pattadar in respect of 18 lechas of land. The respondent No. 3 filed an application u/s 98 of the Assam Land and Revenue Regulation, 1986 (for short the Regulation) alleging that he is the recorded pattadar in respect of 133/4 Lechas of land of that aforesaid patta in the said dag and that he has been in possession of the same and accordingly prayed for issuing a separate patta in his name with respect to the share. The case was registered as PP No. 18/79-80 and was started by the SDO, Nagaon. Petitioner appeared and filed objection opposing the prayer of the respondent No. 3 on the ground that the respondent No. 3 has no title to the land and that he has no possession either. By order dated 20.9.82 the aforesaid petitioner was allowed and the same was approved by the AM. Deputy Commissioner on 29.9.82. Writ petitioner filed appeal before the Assam Board of Revenue being Revenue Appeal No. 254 RA(N)/82 and 40 RA(N)/83 was filed by his brother and foe learned Assam Board of Revenue upheld the order of perfect partition which was approved by the Addl. Deputy Commissioner. Admittedly the writ petitioner did not challenge the said order of the learned Board of Revenue. A separate patta being patta No. 611 was issued to the respondent No. 3 in respect iof his share (133/4 Lechas) on 31.1.85 and the partition case was closed on 9.4.85 vide order of the Add Deputy Commissioner. The allegation of the petitioner is mat after 3 years of closure of the aforesaid partition case the SDC, Nagaon Circle issued the impugned notice upon the petitioner vide No. NC 3/87-88/3297 dated 18.11.88 alleging that the petitioner and another cosharer Shri Amalesh Chandra Paul have been possessing 2 lechas of land covered by dag No. 313/1150 of PP No. 611 of Town Kachalukhowa Kissan, Mouza Town District Nagaon by constructing a latrine house and digging tube well and that the said land of 2 lechas fall within the share of respondent No. 3 Sri Baidya Nath Dutta who has been granted a separate patta being PP No. 611 with respect to his total share of 133/4 lechas in the said dag as per order of the perfect partition case No. 18/79-80. Further by the said order the learned SDC directed the petitioner and other co-sharer Sri Amalesh Chandra Paul to remove the aforesaid latrine house and the tube wall from the said 2 lechas of land and to vacate the same within the time mentioned in the said notice. It was further mentioned in the said notice that the same has been issued as per direction of the Addl Deputy Commissioner, Nagaon dated 4.10.88 passed in NRP/PP Case No. 18/79-80/27. Against this order the petitioner filed an appeal before the learned Board of Revenue and by judgement and order dated 4.5.89 the same was dismissed. Against this order the petitioner has approached this court invoking the writ; jurisdiction of this court for setting aside the same.
(3.)The respondent No. 3 Sri Baidya Nath Dutta filed affidavit in opposition denying the claim of the writ petitioner. The averment made by the respondent No. 3 is that the name of respondent No. 3 was mutated by right of partition in mutation case No. 400/76-77 by order dated 12.11.77 and by order dated 17.5.79 revenue record was corrected accordingly; that by order dated 20.9.82 the Sub Divisional Officer allowed perfect partition and by order dated 20.9.82 the Addl [Deputy Commissioner approved the order, of perfect partition by the Sub Divisional Officer. That, by order dated 23.12.83 learned Board of Revenue dismissed the appeal as aforesaid, that by order dated 14.8.84 the Addl Deputy Commissioner rejected the Mutation appeal No. 87/81-82 filed by the petitioner against the order of mutation dated 12.11.77 by which the name of the respondent No. 3 was mutated in respect of 133/4 lechas of land. Against this order dated 14.3.84 the writ petitioner did not prefer any appeal before the appropriate forum and by order dated 2.2.85 separate patta being patta No. 611/1150 has been issued by me Add Deputy Commissioner after perfect partition in respect of 133/4 lechas of land on the basis of the order of perfect partition and accordingly by order dated 28.2.85 the revenue record was amended. It is further averred that the respondent No. 3 filed an application before the Add Deputy Commissioner u/s 116 (A) of the Regulation for demarcation of his share and possession thereof and the Addl Deputy Commissioner directed the Sub Deputy Collector by order dated 29.5.85 to deliver the possession of the land. As the Sub Deputy Collector found than 2 lechas of land falling in the share of the respondent No. 3 was occupied by the writ petitioner and his brother by constructing a latrine and tube well the same was reported to the Addl Deputy Commissioner who directed the SDC to take steps for clearance of the said land and to give possession to the respondent No. 3 by order dated 4.10.88. Admittedly the writ petitioner did not challenge the order dated 4.10.88 passed by the learned Addl. Deputy Commissioner but the writ petitioner preferred an appeal before the Assam Board of Revenue against the notice of the SDC dated 10.11.88.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.