Page No.# 1/12 GAHC010213342022 2025:GAU-AS:5240-DB THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WA/353/2022 MUSSTT. SOFIKA HUSSAIN ARA BEGUM @ SOFIKA BEGUM AND ANR. W/O LATE ABDUS SAMAD, RESIDENT OF WARD NO. 8, NORTH LAKHIMPUR TOWN, SATYA SAIDABA PATH, DIST LAKHIMPUR, ASSAM 787001 2: MUSSTT. SUFFIA HUSSAIN ARA BEGUM W/O HAMIDUR RAHMAN RESIDENT OF WARD NO. 8 NORTH LAKHIMPUR TOWN SATYA SAIDABA PATH DIST LAKHIMPUR ASSAM 78700 VERSUS THE ADDL DEPUTY COMMISSIONER AND 3 ORS LAKHIMPUR, DIST LAKHIMPUR, ASSAM 2:THE CIRCLE OFFICER NORTH LAKHIMPUR REVENUE CIRCLE DIST LAKHIMPUR ASSAM 3:MUSST. MINU MAMTAZ W/O MANOWAR ALI RESIDENT OF WARD NO. 9 BAZARPATTY MOUZA LAKHIMPUR DIST LAKHIMPUR ASSAM 787001 4:THE ASSAM BOARD OF REVENUE Page No.# 2/12 REPRESENTED BY ITS CHAIRMAN PANBAZAR GUWAHATI 78100 Advocate for the Petitioner : MR. B DUTTA, MR J DAS,MS. J BORO,MR. SAILENDRA DEKA Advocate for the Respondent : GA, ASSAM, FOR CAVEATOR,MS. S G BARUAH BEFORE HON’BLE MR. JUSTICE KALYAN RAI SURANA HON’BLE MRS. JUSTICE MALASRI NANDI For the appellants : Mr. B. Dutta, Senior Advocate. : Mr. S. Deka, Advocate. For the respondent nos.1, 2 and 4 : Mrs. S. Sarma, Govt. Advocate. For the respondent no.3 : Ms. S.G. Baruah, Advocate. Date of hearing : 22.04.2025. Date of judgment : 30.04.2025. JUDGMENT AND ORDER (CAV) (K.R. Surana, J) Heard Mr. B. Dutta, learned senior counsel, assisted by Mr. S. Deka, learned counsel for the appellant. Also heard Mrs. S. Sarma, learned Govt. Advocate for respondent nos.1, 2 and 4; and Ms. S.G. Baruah, learned counsel for the respondent no.3. 2) Bereft of details, it would suffice to mention herein that the appellants had filed a writ petition, which was registered and numbered as W.P. (C) No. 4969/2015, to assail multiple orders concerning a mutation dispute between the appellants on one side and the respondent no.3 on the other side. Challenge was made in respect of the following orders, viz., (i) order dated Page No.# 3/12 19.11.2011, passed by the Addl. Deputy Commissioner, Lakhimpur, in R.A. No. 10/2006; (ii) order dated 29.04.2015, passed by the learned Board of Revenue, Assam, in R.A. No. 66(RA)(L)/2014, whereby the above referred order dated 19.11.2011 was upheld; (iii) order dated 29.04.2015, passed by the learned Board of Revenue, Assam, in Review Petition No. 4(RA)(L)(Rvw)/ 2015, thereby dismissing the review petition; and (iv) order dated 19.03.2014, passed by the Circle Officer, North Lakhimpur Revenue Circle, by which mutation was granted in favour of the appellants by virtue of purchase and possession in respect of land measuring 2 bigha- 2 katha- 12 lecha, covered by Dag No. 146 and 149 of K.P. Patta No. 51 of village Sinatalia, Mouza- Nakari, North Lakhimpur Revenue Circle, District- Lakhimpur. 3) The said writ petition was dismissed by the learned Single Judge by order dated 20.09.2022. Accordingly, the appellants have preferred this Intra-Court appeal against the said order dated 20.09.2022. The said W.P.(C) No. 4969/2015 was dismissed vide order dated 20.09.2022, which is under appeal. 4) Referring to the memo of appeal, the learned senior counsel for the appellants has pressed all the grounds for appeal. a. The learned Single Judge had erred in placing reliance on the affidavit filed by the respondent no. 2 and in the process, did not consider the contention of the appellants. b. It was contended that in respect of the order passed by the Addl. Deputy Commissioner, the learned Single Judge had given a contradictory finding because on one hand, no infirmity was found in the said order, yet on the other hand, the appellate order by the Board Page No.# 4/12 of Revenue, Assam was not interfered with though it had doubted the title of the appellants’ vendors. c. It was contended that in light of section 41 of the Assam Land and Revenue Regulation, 1891 (hereinafter referred to as ‘ALRR, 1891” for brevity), the revenue authorities did not have power to decide the question of title and ought to have relegated the parties to approach the civil court. This aspect was not considered by the learned Single Judge. d. It was contended that the learned Single Judge did not consider that the appellants’ vendor had right, title and interest over the land by virtue of gift made by vendor’s uncle-in-law, mother-in-law and brother- in-law and the mutation was made on the basis of their respective endorsement in the chitha. e. It was contended that in view of the provisions of section 41 of the ALRR, 1891, the revenue authorities could only have decided the question of possession, which was not considered by the learned Single Judge. f. It was contended that the respondent no. 3 had taken a plea that the land was gifted to her, but her husband had mutated the land in his name and therefore, on such plea, the revenue authorities could not have cancelled the mutation of land in favour of the appellants, which was not considered by the learned Single Judge. g. It was contended that though the learned Board of Revenue, Assam had examined the title of the appellants and their vendor, the learned Single Judge had failed to appreciate that aspect of the matter. Page No.# 5/12 h. It was contended that as per entries in the jamabandi, the land was mutated in the name of the appellants’ vendor. Therefore, he had the right to sell the land to the appellants and therefore, the learned Single Judge failed to appreciate that the respondent no. 3 could only have approached the civil court having jurisdiction. i. It was contended that as the appellants are still in possession over the land, the revenue authorities could not have cancelled the mutation of land in favour of the appellants, which was not considered by the learned Single Judge. j. It was also contended that the learned Single Judge had failed to consider that the twin condition for grant of mutation, being purchase and possession, were in favour of the appellants, who are residing on the said land by constructing their house thereon. k. It was contended that the learned Single Judge had failed to consider that the respondent no. 3 was the wife of the appellants’ vendor and that under the principles of Mohammedan Law, land could have been transferred by way of an oral gift, being in possession of the said land. l. It was contended that under Rule 116 of the ALRR, the revenue authorities had the power to correct the revenue records on the basis of possession, which was not at all considered by the learned Single Judge. m. It was contended that the learned Single Judge had failed to consider that the revenue appeal by the respondent no. 3 was not maintainable owing to non-joinder of other legal heirs of the three donors of land to the appellants’ vendor. Page No.# 6/12 n. It was contended that the learned Single Judge had failed to consider that though the Division Bench of the Board of Revenue, Assam had heard the revenue appeal, the review petition was heard by the Single Member of the Board, which had rendered the review order illegal and non-est in the eye of law. o. It was contended that in view of the hereinbefore referred grounds, the appeal is liable to be allowed. 5) To support his contentions, the learned senior counsel for the appellants has cited the following two cases, viz., (i) Harimati Das v. Jadav Chandra Deka, (1989) 0 Supreme(Gau) 143, and (ii) Pratap Chandra Pathak v. State of Assam & Ors., (2019) 2 GLR 646. 6) The learned Govt. Advocate and the learned counsel for the respondent no. 3 have made their respective submission to support the order dated 20.09.2022, passed by the learned Single Judge. 7) Considered the submissions of all sides. Also carefully perused the records, which were called for from the learned Board of Revenue, Assam. Also given due consideration to the two cases cited by the learned senior counsel for the appellants. 8) On a perusal of the materials available on the record, it is seen that contrary to the contention of the learned senior counsel for the appellants, neither the Addl. Deputy Commissioner nor the learned Board of Revenue, Assam had given any finding on the title. The Addl. Deputy Commissioner, in its order dated 19.12.2011, has held that the chitha mutation in favour of the vendor of the appellant to be illegal. We are compelled to endorse the said view as a correct legal proposition because of several reasons. Firstly, though the Page No.# 7/12 transfer was in respect of land which is apparently valued at more than Rs.100/-, unless such transfer was registered, land could not have been mutated in favour of the appellants’ vendor. Mutation order itself was not proved or exhibited before the Board of Revenue and is also not annexed to the instant memo of appeal. Therefore, on what basis the chitha mutation was done could not be appreciated by the Court. However, as per the order of the learned Board of Revenue, Assam, it had perused the mutation order and did not find it sustainable and thus, the order of the revenue appellate authority i.e. Addl. Deputy Commissioner was upheld. 9) Secondly, as per the entry made in the jamabandi, the land in dag no. 146 is 2 bigha- 2 katha- 19 lecha. The land in dag no. 149 is 2 bigha- 3 katha- 9 lecha. Thus, total land in patta no. 51 is 5 bigha- 1 katha- 8 lecha. However, by remark no. 6 in the jamabandi, land measuring 2 bigha- 2 katha- 12 lecha land in dag no. 146/149 was mutated in favour of appellant’s vendor by order dated 11.08.2003 passed by the Circle Officer, which does not contain reference to any sale and/or gift deed. Be that as it may, if the transfers recorded in the jamabandi are taken into account, the transfers exceed the total land measuring 5 bigha- 1 katha- 8 lecha. Therefore, in the absence of clear description of land, the land which was sold by the appellants’ vendor cannot be ascertained. 10) Thirdly, the Court has examined the description of land given in the two sale deeds annexed to this memo of appeal. Based on the four boundaries of the said two sale deeds purportedly executed in favour of the appellants, the learned senior counsel for the appellant could not show that the two plots of land were contiguous. In one sale deed dated 21.08.2003, favouring Mst. Sofika Hussain Ara Begum, land measuring 1 bigha- 1 katha- 12 Page No.# 8/12 lecha out of land measuring 2 katha- 3 katha- 4 lecha was transferred with Mst. Ujala Begum in the north; Mst. Sofika Hussain Ara Begum in the south; Sri Jogeswar Bora in the East; and Md. Nazrul Islam in the West. As per the other sale deed dated 21.08.2003, favouring Mst. Safia Hussain Ara Begum, land measuring 1 bigha- 1 katha- 12 lecha out of land measuring 2 bigha- 3 katha- 4 lecha was transferred, with Sri Jogeswar Bora in the north; Md. Nazrul Islam in the south; Mst. Ujala Begum in the East; and land of purchaser in the West. However, as mentioned hereinbefore, vide entry no. 6 in the jamabandi, land mutated in the name of the vendor of the appellants is 2 bigha- 2 katha- 12 lecha. Thus, the learned senior counsel for the appellant could not justify how the appellants’ vendor had transferred land more than what was mutated in his favour. 11) The reference to the provisions of section 41 of the ALRR, 1891 and Rule 116 of the ALRR by the learned senior counsel for the appellant seems to be misapplied. The provision of section 41 of the ALRR, 1891 is contained under Part-D of Chapter-III of the ALRR under the heading of “Record of Rights”, covering section 39 to 42 of the ALRR, 1891, which refers to orders passed by the Settlement Officer during settlement operation. The learned senior counsel for the appellants has failed to show that any order referred to in the jamabandi were in course of settlement operation. This is the distinguishing factor between effect of entries in the record under section 41 of ALRR, 1891 with entry of regular mutation by a transferee of land, which is done by registering a Mutation Case, for which provisions are contained under Chapter- IV, Part-A and Part-B, under heading “Registration” contained in sections 48 to 59 of the ALRR, 1891. 12) The reliance on Rule 116 by the learned senior counsel for the Page No.# 9/12 appellants appear to be misapplied. The provision of Rule 116 confers power to the Deputy Commissioner to order the name of a proprietor of land to be struck out of register, whenever it comes to his notice that the person whose name is recorded in the General Register as proprietor, settlement holder or manager is no longer in possession of the land. No such order or satisfaction of the Deputy Commissioner could be demonstrated from any document on record. Rather, the reliance on the said provision takes away the very foundation of case projected by the appellants because, no order under Rule 116 under ALRR could have been passed without giving due notice to the concerned proprietor, settlement holder or manager and hearing objections that may be preferred. Rule 116 of the ALRR is quoted below for ready reference: “116. Power of Deputy Commissioner to order the name of a proprietor, of etc., be struck out of register. – Whenever it comes to the notice of the Deputy Commissioner that any person whose name is recorded in the General Registers as proprietor, settlement-holder or manager of an estate is no longer in possession of any such interest in the estate, the Deputy Commissioner may order the name of such person to be struck out from the register. Provided that the Deputy Commissioner shall not strike out the name of any recorded proprietor or land-holder, or manager on behalf of a proprietor or land- holder, without giving him due notice and hearing any objections he may prefer against his name being struck out.” 13) Therefore, none of the finding recorded by the Addl. Deputy Commissioner, Board of Revenue, Assam or by the learned Single Judge in W.P. (C) 4969/2015, is found to be vitiated by any error apparent on the face of the record, or any perversity whatsoever. The learned senior counsel for the appellants has failed to show that the Addl. Deputy Commissioner has given any finding on the title of the appellants or their vendor. The learned senior counsel Page No.# 10/12 for the appellant had submitted that gift of land can be oral under Mohammedan Law, but he has failed to demonstrate from any of the annexed documents that all the requisite requirements of a valid gift under the Mohammedan Law has been recorded anywhere. The specific finding by the learned Board of Revenue, Assam in its order (at pp.91, para-2 of memo of appeal) is that the name of the vendor of the appellants was entered in the revenue records by means of fraud. However, the learned senior counsel for the appellants could not show that any finding was recorded by the learned Board on title of the appellants or their vendor. 14) Therefore, a mere observation by the said two authorities regarding tenability of the entries made under mutation orders under challenge, cannot be said to be a finding on title by any stretch of imagination. Therefore, the cases of Harimati Das (supra), and Pratap Chandra Pathak (supra), cited by the learned senior counsel for the appellants does not help the appellants in any way. 15) It may be mentioned that in the case of Starline Agency v. Nabajit Das, 2011 (1) GLT 710: (2011) 5 GLR 186: (2011) 0 Supreme(Gau) 149, this Court has held that if two reasonable and logical views are possible, the view adopted by the Single Judge should normally be allowed to prevail. 16) In the said context, we may also refer to the decision of this Court in the case of Tractor & Farm Equipment Ltd. v. Secretary to the Govt. of Assam, Dept. of Agriculture, 2004 (1) GLT 117, which was followed in the case of North Eastern Regional Institute of Science and Technology v. Prabhanjan Kumar Pranav, (2018) 5 GLR 572: (2017) 0 Supreme(Gau) 1509. 17) In the case of Assam State Electricity Board V. Sri Surya Kanta Page No.# 11/12 Roy, (1994) 1 GLR 383: (1993) 0 Supreme(Gau) 190, this Court has held that the appellate Court will not interfere with the discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversity or where the court has ignored the settled principles of law. 18) In the light of the discussions above, the Court is of the considered opinion that this is not a case where the learned Single Judge has failed to appreciate any pleadings or documents produced before the Court. In spite of lengthy submissions by the learned senior counsel for the appellants, it could not be demonstrated that the discretion exercised by the learned Single Judge was hit by perversity or patent illegality. The decision of the learned Single Judge is not shown to be arbitrary or capricious or that any well settled principles of law was ignored. Thus, the impugned judgment and order is not found to suffer from any patent illegality. 19) Thus, the appellant has failed to demonstrate that the learned Single Judge has committed any perversity in dismissing W.P.(C) No. 4969/2015 vide order dated 20.09.2022. 20) Nonetheless, though not required, the Court has still examined the contentions raised in this appeal and in the unhesitant view of the case as presented in the memo of appeal, this Intra-Court appeal is devoid of any merit and thus, this appeal is dismissed. 21) The cost payable by the appellants to the respondent no. 3 is quantified at Rs.10,000/- (Rupees Ten thousand only), which if not deposited before the Registry of this Court within 30 days from the date of this order, shall become recoverable in accordance with law. Page No.# 12/12 22) The Registry shall return the TCR back to the learned Board of Revenue, Assam along with a copy of this judgment and order to be made a part of the record. JUDGE JUDGE Comparing Assistant