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

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Writ Petition (C) No. 4692/2008 1. Md. Sadek Hussain, S/O. Late Ahmed Hussain, Resident of village F.A. Ahmed Nagar, Sixth Mile, Guwahati-37, P.O. & P.S. Kamrup, Assam. - Petitioner. -Versus- 1. The State of Assam, Represented by the Commissioner & Secretary to the Govt. of Assam, Revenue Department, Dispur, Guwahati-6. 2. The Deputy Commissioner, District Tinsukia, Assam. 3. Md. Arman Ali, 4. Md. Illias Ali, 5. Md. Rejwan Ali, All are sons of Late Yasin Ali, Resident of Ittabhatta, Digboi Town, P.O. & P.S. Digboi, District Tinsukia, Assam. 6. Syed Abdul Matin, Son of Late Syed Hamidur Rahman. 7. Syed Rubia Parbin, Wife of Syed Abdul Matin, Both are residents of Ittabhatta, Digboi Town, P.O. & P.S. Digboi, District Tinsukia, Assam. 8. Ali Ahmed Fazal Hussain, 9. Mehboob Hussain, Both are sons of Late Ahmed Hussain, Residents of Ittabhatta, Digboi Town, P.O. & P.S. Digboi, District Tinsukia, Assam. -Respondents. BEFORE HON BLE MR JUSTICE HRISHIKESH ROY For the Petitioner: For the Respondents: Mr. AK Purkayastha, Advocate, Mr. MJ Barua, Advocate and Mr. BJ Das, Advocate. Mr. J. Handique, Govt. Advocate. Mr. JI Borbhuiya, Advocate, Ms. F. Begum, Advocate. Date of hearing & judgment: 05.08.2015. JUDGMENT & ORDER (ORAL) Heard Mr. AK Purkayastha, the learned counsel appearing for the petitioner. The respondent Nos.1 & 2 are represented by the learned Govt. Advocate Mr. J. Writ Petition (C) No.4692/2008 Page 1 of 9

Handique. The learned counsel Mr. JI Borbhuiya appears for the respondent Nos.3, 4 & 5. Mr. L. Mohan, the learned Advocate appears for the respondent Nos.8 & 9. 2. The contesting parties are members of the same family and it would be appropriate to identify at the outset the three contesting groups. The petitioner Md. Sadek Hussain and the respondent Nos.8 & 9, Ali Ahmed Fazal Hussain and Mehboob Hussain are the 3 sons of Alibun Nessa, who is the first wife of Ahmed Hussain. The contesting respondent Arman Ali, Illias Ali and Rejwan Ali (respondent Nos.3, 4 & 5) are the 3 sons of Yasin Ali and Afzalan Nessa, who happens to be the daughter of Tahibun Nessa @ Latifun Nessa who is the 2 nd wife of Ahmed Hussain. The 3 maternal uncles of the respondent Nos.3, 4 & 5 have adopted opposing positions and therefore the petitioner is being described as the contesting uncle, whereas the respondent No.8 & 9 are being reflected as the supporting uncles. As the primary litigation of the petitioner is with respondent Nos.3, 4 & 5, considering their relationship, the three are described as the nephews for ease of understanding. 3. The petitioner as the contesting uncle, is claiming a share of the property through inheritance from his mother Alibun Nessa, whereas the nephews (respondent Nos.3, 4 & 5) claim their share as successors of both their maternal grand-mother Tahibun Nessa @ Latifun Nessa and their mother Afzalan Nessa. The following chart will lend clarity to the position of the parties: AHMED HUSSAIN (Grand Father) Alibun Nessa (Purchaser) Tahibun Nessa alias Latifun Nessa (Purchaser) (1 st Wife) (2 nd Wife) Sadek Hussain Ali Ahmed Mehboob Hussain [Petitioner] Fazal Hussain (Resp No.9) (Contesting Uncle) (Resp No.8) (Supporting Uncle) (Supporting Uncle) Afzalan Nessa (Daughter) (Purchaser) W/o. Yasin Ali Arman Ali Elias Ali Rizwan Ali (Resp No.3) (Resp No.4) (Resp No.5) (Nephews) Writ Petition (C) No.4692/2008 Page 2 of 9

4. The property in question measures 5 Bighas 4 Kathas 10 Lechas and it was jointly purchased by Alibun Nessa, Tahibun Nessa @ Latifun Nessa and Afzalan Nessa by the Regd. Sale Deed No.475/1944, dated 17.8.1944. Following the joint purchase made by the three ladies, the land measuring 3 Bighas 4 Kathas 10 Lechas was mutated on 13.1.1947 in the Mutation Case No.116/1946-47. But surprisingly the name of Ahmed Hussian (together with Tahibun Nessa @ Latifun Nessa) were recorded in the revenue records, although Ahmed Hussian was not one of the purchaser of the property. Similarly in the Mutation Case No.115/1946-47, the name of Afzalan Nessa was mutated in respect of the balance 2 Bighas land. 5. The mother of the respondent Nos.3, 4 & 5 Afzalan Nessa died in the year 1970 and at that stage, without knowledge of the minor children of the pattadar Afzalan Nessa, the names of the 3 maternal uncles (petitioner and the respondent Nos.8 & 9) were inserted as owners of the land in the revenue record. During the settlement exercise of 1975-76, the names of the two deceased pattadars namely Tahibun Nessa @ Latifun Nessa and Ahmed Hussain were removed and they were replaced by the petitioner and the respondent Nos.8 & 9. 6. After coming to know that the names of the other pattadars/successors were not reflected, the nephews (respondent Nos.3, 4 & 5) applied for insertion of their names as successors of both their mother Afzalan Nessa and grandmother Tahibun Nessa @ Latifun Nessa and accordingly the Mutation Case Nos.208 & 209/1997-98 was registered by the Circle Officer, Marghertia. After considering the legitimacy of the application of respondent Nos.3, 4 & 5, separate order was passed on 28.10.1998 in both the Mutation Cases, whereby the names of the nephews i.e. Arman Ali, Illias Ali and Rejwan Ali (respondent Nos.3, 4 & 5) were inserted in the revenue records in place of the deceased pattadar Tahibun Nessa @ Latifun Nessa, the maternal grandmother of the three respondents. It may be noted that the mutation was granted to the nephews in respect of the land covered by Patta No.12 & 13 respectively. 7. Following the insertion of their names in the revenue records, the nephews (respondent Nos.3, 4 & 5) sold 1 Katha 1 Lecha of land to one Hemo Gogoi but she re-sold the land to Syed Abdul Matin and Syed Rubia Parbin (respondent Nos.6 & 7). 8. The order(s) granting mutation to the nephews (respondent Nos.3, 4 & 5) in the Mutation Case Nos.208 & 209/1997-98 was left unchallenged until 2004 and at that stage, the contesting uncle Md. Sadek Hussain applied to the SDO, Margherita to Writ Petition (C) No.4692/2008 Page 3 of 9

challenge the order(s) dated 28.10.1998, whereby the land records was corrected to reflect the names of the 3 nephews (respondent Nos.3, 4 & 5). 9. Following the registration of the case No.A.S.C. of 8/2003-041/04, notice was issued on 23.2.2004 (Annexure-B) to the nephews (respondent Nos.3, 4 & 5) to show cause in respect of the jamabandi correction, pleaded by the contesting uncle Md. Sadek Hussain (petitioner). Being aggrieved by the proceeding initiated by their contesting uncle for correction of the revenue records, the respondent nephews challenged the proceeding before the Deputy Commissioner (D.C.), Tinsukia, through their application dated 6.5.2004 (Annexure-C). 10. The above challenge of the respondent nephews was allowed in the Revenue Appeal Case No.6/2004, where the D.C. noted as follows: It is seen that the petitioner s mother Late Afzalam Nessa was the owner of a plot of land measuring 2B 0K 0L covered by different Dag of Patta No.11 (old) of Digboi Town and her name was recorded as owner by right of purchase. It is also seen from the copy of Jamabandi of 1933-34, Digboi Town, Makum Mouza that 3B 4K 10L land was standing mutated in the names of Ahmed Hussain and Jahibun Nessa in Dag No. Parts of 48, 55, 56, 57, 58, 60, 54 and 49 of P.P. No. 11 (old). It is also seen that during the last settlement operation, this plot of land was transferred to the name of Ahmed Hussain and Alibun Nessa vide Draft Chitha of 1970-71, Digboi Town Part I and II by order dated 31.10.69. In serial No.1, Ahmed Hussain, S/o Basu Miah s name was record out and in his place, Ahmed Hussain, S/o Basiruddin was recorded. Again in place of Tahubun Nessa at Sl. No.2, the name of Ahmed Hussain, S/o Basiruddin was recorded as waris. Again, by way of correction, the name of Alibun Nessa W/o Ahmed Hussain was inserted in place of Tahibun Nessa, at Sl NO.2. It was also seen that as per record attestation dated 28.9.76 (ASO s) order dated 23.9.76, the entire land was mutated in the name of Shri Ali Ahmed Fazal Hussain, Sri Sadak Hussain and Shri Mehboob Hussain in P.P. No.11 (old)/12 (new) and in Dag No.49, 352, 353 of P.P. No.11 (old) 13 (new). The Circle Officer, Margherita took up Mutation Case No.208/1997-98 and No.209/1997-98. Seen the order passed by the C.O. Margherita, dated 28.10.98 granting Mutation in 50% of the above plots of land in favour of Sri Arman Ali, Sri Ilias Ali and Sri Rizwan Ali, all son of late Yasin Ali and condous of Ahmed Hussain/Tahibun Nessa. Accordingly the records were corrected as seen from the documents produced. It may be mentioned here that Late Ahmed Hussain had 2 wives Tahibun Nessa and Alibun Nessa. Mrs. Tahibun Nessa had one daughter Smti. Afzalam Nessa, while Mrs. Alibun Nessa has 3 sons, Sri Ali Ahmed Fazal Hussain, Sri Sadak Hussain and Sri Mahboob Hussain. Smti. Afzalan Nessa married to Yasin Ali has 3 sons namely Arman, Ilias and Rizwan Ali. This was evident from the list of member of the family of Ahmed Hussain as produced before the Court. It transpires from the above discussion that the orders passed by the Circle Officer, Margherita in Mutation Case No.208 and 209 of 1997-98 establishing rights of concerned heirs of late Ahmed Hussain, Late Tahibun Nessa and late Alibun Nessa is justified and supported by land records since 1933-34. Moreover, those orders were not appealed against by anybody interested in the cases. Writ Petition (C) No.4692/2008 Page 4 of 9

Therefore the present Notice dated 23.2.2004 issued by the Circle Officer, Margherita to the petitioners for correction of the Jamabandi Cr. does not appear to be necessary. Hence it is quashed. 11. On the basis of the above facts, the D.C. opined that re-correction of the revenue records was unnecessary and accordingly the process initiated by the contesting uncle Md. Sadek Hussain (petitioner) was quashed by the order dated 30.7.2004 (Annexure-D). It may however be recorded that this order was passed exparte against the Writ Petitioner as he was not arrayed as a party in the Revenue Appeal Case No.6/2004. 12. After failing in his attempt to correct the Revenue Records, the aggrieved Writ Petitioner together with his two brothers Ali Ahmed Fazal Hussain and Mehboob Hussain (respondent Nos.8 & 9), filed two separate application(s) (Annexure-E & F), where he applied for deletion of the names of the nephews (respondent Nos.3, 4 & 5) from the Sadar Zamabandi of P.P. No.12 & 13 respectively of Digboi Township. However it may be noted that although applications were projected to be jointly filed by three persons, it was signed only by the contesting uncle Md. Sadek Hussain and not by his co-applicants the 2 supporting uncles. 13. The respondent nephews in their written objection (Annexure-H) however contended that the land records were rightly corrected on 28.10.1998 and the said correction was affirmed in the Revenue Appeal Case No.6/2004 and accordingly it was claimed that the application(s) filed by the contesting uncle (Writ Petitioner) has no valid basis. The merit of the Misc. Case No.3/2007 of the Writ Petitioner was then considered by the D.C., Tinsukia who took note of the previous order passed in the Revenue Appeal Case No.6/2004. Accordingly after due application of mind to the earlier proceedings, the contesting uncle s application, registered as the Misc. Case No.3/2007 for correction of the revenue records, was rejected by the D.C., Tinsukia, through order dated 8.11.2007 (Annexure-I). 14. The next challenge before the Assam Board of Revenue (hereinafter referred to as the Revenue Board ) was taken up individually by the contesting uncle (Writ Petitioner) himself and the Appeal was registered as the Case No.26 RA(TIN)/08. In this proceeding, the original co-applicant Ali Ahmed Fazal Hussain and Mehboob Hussain were arrayed as proforma respondent Nos.6 & 7 as the two supporting uncles were on the side of the nephews. 15. With his appeal memo (Annexure-J) against the order dated 8.11.2007 of the D.C., Tinsukia, the contesting uncle simultaneously challenged the previous order dated 30.7.2004, passed in the Revenue Appeal Case No.6/2004, by invoking the Writ Petition (C) No.4692/2008 Page 5 of 9

inherent power conferred on the Revenue Board under Section 151 of the Assam Land and Revenue Regulation, 1886 (hereinafter referred to as the Land Revenue Regulation ). 16. However the learned Revenue Board noted that the mutation order(s) in Mutation Case Nos.208 & 209/1997-98 was never challenged in due time by the petitioner and primarily on this basis, in the absence of any explanation for the belated challenge, the case of the contesting uncle was found to be without merit in respect of the challenge to the order dated 8.11.2007 in the Misc. Case No.3/2007 and also the order dated 30.7.2004, in the Revenue Appeal Case No.6/2004 and in consequences thereof, the Writ Petitioner s Appeal was dismissed through the impugned order dated 12.8.2008 (Annexure-K) in Case No.26 RA(TIN)/08. 17.1. Assailing the legality of the verdict of the Revenue Board, Mr. AK Purkayastha, learned counsel submits that when the inherent power was invoked under Section 151 of the Land Revenue Regulation, the Board was competent to call for the proceeding of the subordinate authorities without being fettered by any limitation issue and accordingly it is contended that the approach of the Revenue Board was an injudicious approach. 17.2. The petitioner contends that the previous order dated 30.7.2004, in the Revenue Appeal Case No.6/2004 was an ex-parte order against the contesting uncle (petitioner) as he was not arrayed in that proceeding of the nephews (respondent Nos.3, 4 & 5) and accordingly it is argued that since the said order of 30.7.2004 was made the basis for the next order of 8.11.2007 (Annexure-I) in the petitioner s Misc. Case No.3/2007, a rectificatory order needs to be passed even at this stage. 17.3. According to the petitioner s lawyer, the name of his grandfather Ahmed Hussain was incorporated as a pattadar as far back as on 13.1.1947 in the Mutation Case No.116/1946-47 and accordingly it is argued that the correction of the land records on 28.10.1998 at the instance of the nephews (respondent Nos.3, 4 & 5), in the Mutation Case Nos.208 & 209/1997-98 was legally impermissible. 17.4. The petitioner contends that he is fighting for a share of the properties of his mother Alibun Nessa, together with his two brothers Ali Ahmed Fazal Hussain and Mehboob Hussain and he should not therefore be deprived of enjoyment of his share of his mother s property, by the 3 nephews (respondent Nos.3, 4 & 5), who have now managed to secure the support of their two maternal uncles (respondent Nos.8 & 9). 18.1. On the other hand, Mr. JI Borbhuiya, learned counsel submits that the contesting uncle (petitioner) could not have invoked the inherent jurisdiction under Writ Petition (C) No.4692/2008 Page 6 of 9

Section 151 of the Land Revenue Regulation, to belatedly to challenge the decision of the D.C., passed on 30.7.2004, particularly when, the concerned Revenue Authorities were not arrayed as parties in the proceeding. 18.2. The learned Advocate refers to the order(s) of 28.10.1998, in the Mutation Case Nos.208 & 209/1997-98 to project that this order in favour of the 3 nephews (respondent Nos.3, 4 & 5) have attend finality and therefore it is argued that since the original order of 1998 still holds the field, the verdict in the subsequent proceeding(s) can have no impact on the mutation granted in the year 1998, to the respondent Nos.3, 4 & 5. 18.3. The learned Advocate Mr. JI Borbhuiya further submits that the petitioner was a transferable Govt. employee and he was never in possession of the disputed land at Digboi and although he attempted to assert his right jointly, the other two sons of Alibun Nessa have not supported the petitioner in his attempt to deny the right of the nephews who were orphaned young. That is why the 2 supporting uncles had to be arrayed as the proforma respondent Nos.6 & 7 in the proceeding before the Revenue Board, initiated individually by the petitioner. 19. The respondent Nos.8 & 9 are the other two sons of Alibun Nessa and their Advocate Mr. L. Mohan supports the case of the nephews (respondent Nos.3, 4 & 5). Mr. Mohan submits that the three sons of Alibun Nessa are entitled to 1/3 rd share each of the property of their mother Alibun Nessa but they have no right of inheritance in respect of the balance property left behind by their stepmother Tahibun Nessa @ Latifun Nessa and Afzalan Nessa respectively as these two ladies were the two copurchasers of the property on 17.8.1944, together with the 3 rd purchaser Alibun Nessa. 20. Mr. L. Mohan refer to the registered agreement dated 22.5.2008 to project that the right of the nephews (respondent Nos.3, 4 & 5) on the basis of the mutation order dated 28.10.1998 was recognized within the family, whereas the right claimed by the contesting uncle Md. Sadek Hussain was repudiated and on this basis, it is submitted that the impugned order passed by the Revenue Board against the petitioner was the just order in the case. 21. From the above narration of facts, the following picture emerges:- (i) The Writ Petitioner is one of the maternal uncle of the respondent Nos.3, 4 & 5 and the other two maternal uncles are arrayed herein as respondent Nos.8 & 9. The legal right of the three maternal uncles is limited to the property of Writ Petition (C) No.4692/2008 Page 7 of 9

their own mother Alibun Nessa and they have no legitimate claim to the property of their step mother Tahibun Nessa @ Latifun Nessa or their step sister Afzalan Nessa. (ii) The respondent Nos.3, 4 & 5 as the sons and grand-sons respectively of Afzalan Nessa and Tahibun Nessa @ Latifun Nessa are exclusively entitled to the property of their deceased predecessors, to the exclusion of their three maternal uncles. (iii) The entire property measures 5 Bigha 4 Katha 10 Lecha and was jointly purchased on 17.8.1944 by Alibun Nessa, Tahibun Nessa @ Latifun Nessa and her daughter Afzalan Nessa. While the individual share is not specified in the Regd. Sale Deed, if the three purchasers were to share equally, they would normally be entitled to about 1 Bigha 4 Katha 16 Lecha each, of the total land purchased by them jointly. (iv) Of the purchased land, 2 Bigha was mutated in favour of Afzalan Nessa on 13.1.1947 in the Mutation Case No.115/1946-47 and this has now become a fait acompli. Subsequently the names of the three maternal uncles (sons of Alibun Nessa) was inserted in the revenue records, without the knowledge of their nephews (sons of Afzalan Nessa and grand-sons of Tahibun Nessa @ Latifun Nessa) and that is why they applied for correction through the Mutation Case Nos.208 & 209/1997-98 respectively. In those proceedings, order were passed on 28.10.1998 by the Circle Officer, Margherita, whereby 50% share of the land in the Patta Nos.12 & 13 respectively, was mutated in the name of the 3 nephews (respondent Nos.3, 4 & 5). 22. The revenue records as corrected on 28.10.1998, continues till today, as the petitioner s challenge to the said order was quashed on 30.7.2004 in the Revenue Appeal No.6/2004, at the instance of the respondent Nos.3, 4 & 5. 23. The disputed land is at Digboi and it appears that all along possession was enjoyed by the respondent Nos.3, 4 & 5 together with their two maternal uncles i.e. the respondent Nos.8 & 9, to the exclusion of the petitioner, who is now settled at Guwahati after serving at various places during his service career. 24. When we take note of the position of the parties in the above backdrop, it is clearly reflected that the petitioner is not being supported in his claim by his two brothers namely, Ali Ahmed Fazal Hussain and Mehboob Hussain (respondent Nos.8 & 9) and in fact the respondent Nos.8 & 9 have actively supported their nephews (respondent Nos.3, 4 & 5), as can be seen from the terms of the mutual agreement dated 22.5.2008. 25. While rejecting the Writ Petitioner s Appeal, the learned Revenue Board observed that the petitioner failed to challenge the mutation order(s) passed in favour Writ Petition (C) No.4692/2008 Page 8 of 9

of the respondent Nos.3, 4 & 5 in due time, as the order(s) dated 28.10.1998 should have been challenged within 60 days. Moreover the petitioner was found to be out of possession. That is how the Revenue Board dismissed the Appeal, wherein the order dated 8.11.2007 (Annexure-I) in the Misc. Case No.3/2007 was challenged. 26. Of-course the petitioner invoked the inherent jurisdiction under Section 151 of the Land Revenue Regulation, in the Revenue Appeal No.6/2004 but neither the D.C. nor the Circle Officer were arrayed in the said proceeding. Therefore under such circumstances, the learned Revenue Board could not have invoked the inherent power in respect of the order passed long back on 30.7.2004. 27. For the petitioner, a small window of opportunity was provided to assert his claim by permitting him to move the appropriate Court through the order dated 8.11.2007 (Annexure-I) in the Misc. Case No.3/2007, but this opportunity provided by the District Magistrate, Tinsukia was never availed by the petitioner for last so many years. 28. In view of the discussion made in the preceding paragraphs and taking note of the facts and circumstances of this case, I hold that the impugned order dated 12.8.2008 (Annexure-K) in Case No.26 RA(TIN)/08 was correctly passed by the learned Assam Board of Revenue and the said order does not suffer from any legal infirmity. Therefore this petition is found to be devoid of merit and the same is dismissed. 29. But at the same time the right of the petitioner to 1/3 rd share of the property of his mother Alibun Nessa can t be disregarded. But the said right should be claimed from his two brothers (respondent Nos.8 & 9) and not from his nephews who are the legitimate inheritors of the property of their grandmother and mother Tahibun Nessa @ Latifun Nessa and Afzalan Nessa respectively. The petitioner can seek his share of his mother s property either by appealing to the goodwill of his two brothers namely, Ali Ahmed Fazal Hussain and Mehboob Hussain (respondent Nos.8 & 9) or through Civil Court. It is declared accordingly. 30. The case is thus disposed of accordingly with the above order, without any order on cost. Barman. JUDGE Writ Petition (C) No.4692/2008 Page 9 of 9