WP(C) 4912/2006 BEFORE HON’BLE MR JUSTICE I A ANSARI JUDGMENT AND ORDER By making this application, under Article 226 of the Constitution of Ind ia, the petitioners, who were appellants before the learned Assam Board of Reven ue (in short, ’the Board’), in Case No. 152RA(K)/05, have put to challenge the o rder, dated 30.08.3006, passed by the learned Board dismissing the appeal, which the petitioners had preferred under Section 147 of the Assam Land and Revenue R egulations, 1886 (in short, ’the Regulations’). 2. The materials facts, giving rise to the writ petition, may, in brief, be set out as under: (i) The petitioners herein, who are legal heirs of Late Kanak Chandra Boruah , had applied to the Circle Officer, Guwahati Circle, seeking mutation of their names in respect of a plot of land, measuring 1 Katha 17 Lecha, covered by Dag N o. 3831 (new)/669 (old) of periodic Patta No. 121 (new)/181(old) of Ulubari (new )/Panbari (old) Mouza, which stood mutated in the name of deceased Prabhat Lal B aruah. The said application, filed by the petitioners, gave rise to Mutation Cas e No. 311/01-02. By order, dated 03.04.03, the Circle Officer, Guwahati Circle, granted mutation, by way of inheritance, in favour of petitioner Nos. 1, 2 and 3 herein, in respect of the land aforementioned, on the ground that the petition er Nos. 1, 2 and 3 herein are legal heirs of late Prabhat Lal Boruah. (ii) An appeal was filed before the learned Additional Deputy Commissioner, K amrup (Metro), by respondent No. 4 herein, namely, Smti Subha Baruah, under Sect ion 147 of the Assam Land Revenue Regulation, 1886, challenging the order, dated 03.04.2003, passed, in Mutation Case No. 311/01-02 aforementioned, granting mut ation in favour of the petitioner Nos. 1, 2 and 3 herein. This appeal gave rise to Revenue Appeal Case No. 2/2005. The appellant’s contention, in the appeal, was that the appellant, as the widow of deceased Prabhat Lal Baruah, was the leg al heir of late Prabhat Lal Baruah (whose name stood recorded as pattadar in re spect of the said land, but the learned Circle Officer had granted mutation of t he said land in favour of those persons, who were legal heirs of deceased Kanak Chandra Baruah and not of deceased Prabhat Lal Baruah. The appeal was heard ex- parte and, by order, dated 17.06.2005, learned Additional Deputy Commissioner, K amrup, reached the conclusion that the mutation, granted in favour of the presen t petitioners by the learned Circle Officer was illegal inasmuch as they are not legal heirs of deceased Prabhat Lal Baruah and it is Smti. Subha Baruah (i.e., respondent No. 4 herein), who is the legal heir of said deceased pattadar. Havi ng reached this conclusion the learned Additional Deputy Commissioner set aside the order, dated 03.04.2003, whereby mutation had been granted by the Circle Off icer in Mutation Case No. 311/01-02 aforementioned, and directed the Circle Offi cer to take necessary steps for correction of the relevant records accordingly. (iii) Aggrieved by the order, dated 17.06.2005, aforementioned passed by the l earned Additional Deputy Commissioner, Kamrup (Metro), setting aside the mutatio n granted in favour of the petitioner Nos. 1, 2 and 3 herein, the petitioners he rein preferred an appeal, under Section 147 of the Assam Land and Revenue Regula tion, 1886, before the Assam Board of Revenue, Guwahati, which gave rise to Case No. 152 RA(K)/2005 aforementioned. After hearing the parties, learned Board of Revenue, by order, dated 30.08.2006, dismissed the appeal, on the ground, inter alia, that the mutation, granted by the Circle Officer, Guwahati, by order date d 03.04.2003, in favour of the appellants (i.e., the petitioners herein) by way of inheritance, was illegal and without jurisdiction inasmuch as Late Kanak Chan dra Baruah, the deceased husband of Smti. Ila Baruah (i.e., the present petition er No. 1) had been given, on the strength of a decree, passed in Title Suit No. 78/1979, possession of only four rooms of the Assam-type house standing on a par t of the plot of the land, in question, and, therefore, Late Kanak Chandra Barua h had no right, title or interest either over the entire plot of land, in questi on, or on the entire Assam-type house standing thereon and, consequently, the mu tation, granted in favour of the appellants, was rightly interfered with and set aside by the learned Additional Deputy Commissioner. While dismissing the appe al, learned Board directed as follows: 1) The authority concerned will mutate the names of the present respondents on the basis of their application in respect of the land, in question, as legal hei rs of Late Prabhat Lal Baruah, if not already done, as they have title and posse ssion over the land, in question, until and unless it is otherwise decided by a competent Civil Court. 2) The appellants, may, if so desire, approach the appropriate Civil Court for d eclaration of their right, title and interest and recovery of possession of the land, in question, with entire A.T. house thereon. (iv) It is the order, dated 30.08.2006, passed by the learned Board of Revenu e, Assam, in Case No. 152RA/2005, which stands impugned in the present appeal. 3. I have heard Mr. D. C. Mahanta, learned Senior counsel, appearing on beh alf of the appellants, and Ms. B. L. Sinha, learned Government Advocate, appeari ng on behalf of the respondent Nos. 1, 2, 3 and 9. I have also heard Mr. R. K. Bhuyan, learned counsel, appearing on behalf of respondent Nos. 4 to 8. 4. Appearing on behalf of the petitioners, Mr. D. C. Mahanta, learned Senio r counsel, submits that the impugned order, passed by the learned Board, suffers from jurisdictional error inasmuch as the learned Board ought to have noted tha t the present petitioners hold prima facie title to the land, in question, inasm uch the suit, which the predecessor-in-interest of the present petitioners, had instituted, was, eventually, decided in favour of the plaintiff-petitioners and the predecessor-in-interest of the respondent Nos.4 to 8 herein had to be evicte d from the suit land in terms of the said decree. In support of the fact that th e suit was, eventually, decided in favour of the present petitioners’ predecesso r-in-interest, Late Kanak Chandra Baruah, Mr. Mahanta has referred to the decisi on in Prabhat Lal Baruah Vs. Ila Baruah (Smti), reported in 2001(3) GLT 285. 5. In the face of the decree in the suit and also the fact that the petitio ners, according to Mr. Mahanta, had possession over the suit land, the learned B oard of Revenue could not have refused to interfere with the order, whereby the petitioners’ mutation had been cancelled. This apart, points out Mr. Mahanta, t he learned Board has directed that the mutation shall be granted in favour of th e private respondents herein; whereas no authority, according to Mr. Mahanta, st ands statutorily vested in the learned Board of Revenue to direct mutation of la nd in favour of a person; whereas the learned Circle Officer had granted mutatio n of the land in favour of those persons, who were legal heirs of deceased Kanak Chandra Baruah and not Prabhat Lal Baruah. No mutation can be granted, further submits Mr. Mahanta, unless there is an application made, in terms of the provis ions of Rule 52 read with Rule 53 of the Regulations, seeking mutation to be gra nted. In the present case, points out Mr. Mahanta, when the private respondents had not made any application for mutation, the learned Board had no jurisdictio n to direct mutation of the land in favour of the private respondents. 6. It is further submitted by Mr. Mahanta that when the petitioners had com e into possession of the land, in question, on execution of the decree, which th ey had obtained, their mutation ought to have been maintained and the private re spondents ought to have been directed to approach civil court of competent juris diction for remedy of their grievances, if any, but the learned Board, instead o f asking the private respondents to go to the civil court, directed the present petitioners to approach the civil court. The order, therefore, impugned in the p resent writ petition, is, according to Mr. Mahanta, wholly contrary to law and m ay, therefore, be interfered with. 7. Controverting the submissions made on behalf of the petitioners, Mr. Bhu yan, learned counsel for the respondent Nos.4 to 8, has taken this Court through the entire materials on record to indicate that the decree, granted in the suit aforementioned, was in respect of only four rooms of an Assam-type house and an out house and that, in the suit aforementioned, neither the predecessor-in-inte rest of the present petitioners had sought for, nor were the present petitioners granted, any decree declaring their title over the land. In fact, the materials on record, contends Mr. Bhuyan, clearly indicate that the private respondents h ad remained all along in possession of the immovable property, which stood mutat ed in the name of their predecessor-in-interest, namely, Prabhat Lal Baruah, and when the Circle Officer had directed mutation of the land, in question, in favo ur of the present petitioners as legal heirs of Prabhat Lal Baruah, this directi on was ex facie illegal inasmuch as the petitioners are not, in any way, legal h eirs and successors of deceased Prabhat Lal Baruah. In the face of these facts , the learned Additional Deputy Commissioner and the learned Board were wholly c orrect, in taking the view that respondent No.4 herein, being the widow of Prabh at Lal Baruah, was the legal heir and successor-in-interest of Prabhat Lal Barua h and it is Smti Subha Baruah (i.e., respondent No. 4 herein), who was entitled to obtain mutation and not the present petitioners. This apart, contends Mr. Bhu yan, a microscopic reading of the directions given by the learned Board shows th at the learned Board has made it clear that the mutation has to be granted in fa vour of the private respondents herein on the basis of their application and not otherwise. Mr. Bhuyan further points out that since the present petitioners ha d sought for mutation of the land, in question, in their favour as if they were successors-in-interest of deceased Prabhat Lal Baruah, though they were not, the learned Board had no option, but to direct, and has correctly directed, the pre sent petitioners to approach the civil court for remedy of their grievances, if any. 8. In the backdrop of the rival submissions made on behalf of the parties, let me, now, scan the materials on record in order to determine if the present p etitioners were unjustifiably denied mutation of their names in respect of the l and, in question. To begin with, in this regard, it may be pointed out that resp ondent No.4 is, admittedly, the widow of deceased Prabhat Lal Baruah; whereas th e present petitioners are legal heirs and successors of Kanak Chandra Baruah. 9. By instituting, in the year 1979, Title Suit No.78/1979, Kanak Chandra B aruah (predecessor-in-interest of the present petitioners) sought for decree to be granted (i) for possession of the land and the houses described in the sched ule below by removing the defendant and all his men, materials and belongings, ( ii) for decree of mesne profit from 15.04.79 and for enquiry of mesne profit as provided under order 20 Rule 12(b) and (c) of the Civil Procedure Code, (iii) fo r costs of the suit, and (iv) and for any other relief or reliefs as your honour may deem fit and proper. 10. The schedule of the land, in respect of which the decree had been sought for, read as under: Schedule : One Assam Type Building comprising of four rooms and one out house situa ted on the FC Road, Latasil, Gauhati-1 standing on K.P.Patta No.181, dag No.3831 of Panbari Mouza, Sahar Gauhati and covered by Gauhati Municipal Corporation, h olding No.16 Ward No.24. 11. The case of the plaintiff, as succinctly described in Prabhat Lal Baruah (supra), read as under: (2) The plaintiff-respondent, being the owner of the suit premises, allowed his cousin, the defendant-appellant to stay in the said suit premises free of rent with a condition of payment of Municipal Taxes, revenues and electricity charges etc. and delivery of vacant possession of the same on demand of the plaintiff. In this regard, two agreements were executed by both the parties - the first, th e exbt. l on 24. 4. 75 and the other one, the exbt. 2 on 29. 5. 77. But those do cuments were admittedly not registered. The defendant took over the possession o f the suit premises. But the defendant defaulted in payment of municipal Taxes e tc. from 15. 4. 75 to 1979. Subsequently, the plaintiff required the house for h is own use and occupation and accordingly, he made the demand for vacant possess ion of the house to the defendant who refused to comply with the same. Thereafte r, the plaintiff sent a legal notice on 15. 4. 79 upon the defendants requesting him to deliver the vacant possession, but that too remain unheeded. This necess itated the plaintiff to file the Title Suit No. 70 of 1979 praying for recovery of possession, mesne profit from 15. 4. 79 and also for other relief. 12. The suit was, however, decreed in favour of the plaintiff for recovery o f four rooms of an Assam Type house as described in the schedule to the plaint. The decree, so granted, was put to challenge in appeal, but the first as well as the second appeal, as rightly contended by Mr. Mahanta, failed and the decree w as maintained. 13. The events, following the decree, are of immense importance for the purp ose of effective disposal of this writ petition. 14. What, now, as already indicated above, needs to be noted is that neither the plaintiff, Kanak Chandra Baruah, nor his successors-in-interest, namely, th e present petitioners, had sought for decree for declaration of their rights, ti tle and interest over the entire land measuring 1 katha 17 lechas, which form th e subject-matter of mutation, and, therefore, no such decree of declaration was granted. There was also no decree for recovery of possession by evicting the j udgment-debtor (i.e., deceased Prabhat Lal Baruah) from the entire land measurin g 1 katha 17 lechas. The decree was basically for recovery of possession of only four rooms of an Assam Type house and one out house, though the said Assam-type house had as many as nine rooms. 15. The present petitioners, who got themselves substituted, became the decr ee-holder and they put the decree into execution. Title Execution Case No.45/200 1 was accordingly born. In the Execution Proceeding, the judgment-debtor, Prabha t Lal Baruah, resisted the execution of the decree on the ground that there were as many as nine rooms in the Assam-type house, but the decree had been passed i n respect of only four rooms and, hence, the decree was inexecutable. The learne d executing Court, in order to ascertain the factual situation, constituted a Co mmission. From the report of the Commission, the learned executing Court came to a conclusion that the house, in question, consists of nine rooms. The learned executing Court, therefore, ordered, on 22.07.2002, to execute the decree in re spect of four rooms and one out house. This direction was passed on the ground that executing Court couldn’t go beyond the decree. The Civil Nazir, points out Mr. Bhuyan, accordingly executed the decree, on 01.09.2002, as had been shown by the decree-holders themselves through their Attorney, and, upon recovery, hande d over possession of the said four rooms of the Assam Type house and one out hou se to the Attorney of the decree-holders. 16. It is worth pointing out that there is nothing on record to show that at any point of time, either Kanak Chandra Baruah or the present petitioners had o btained declaration of their title in respect of the entire land on which the sa id Assam-type house stood. It has been further pointed out by Mr. Bhuyan that a s far as their possession is concerned, the petitioners, admittedly, came into p ossession of only four rooms and not of the entire house, which consists of nine rooms. In such circumstances, when the petitioners had no declaration of their rights, title, interest and possession over the entire land, measuring 1 katha 7 lechas, their names could not have been mutated, particularly, when they were n ot the legal heirs of deceased Prabhat Lal Baruah in whose name the said entire plot of land stood mutated. When considered in this light, it becomes more than transparent that the leraned Circle Officer had committed serious illegality in directing mutation of the names of the present petitioners in place of deceased patta-holder, Prabhat Lal Baruah, on the ground that the present petitioners we re legal heirs of Prabhat Lal Baruah though they were not. 17. In fact, the present petitioners filed yet another application in the ex ecution proceeding, long after the decree already stood executed, seeking to get the execution proceeding restored and to get the private respondents herein evi cted from the remaining rooms of the said Assam-type house. By order, dated 11.0 7.2003, passed in Title Execution Case No.45/2001, the learned Court below, howe ver, dismissed the application by observing thus, As the four rooms of Assam ty pe House and out house was handed over to the attorney of the decree holder, the decree can be said to be fully executed as the decree mentions only about Assam type building with 4 rooms and an out house. As the executing court cannot go b eyond the decree, it has to ascertain as to whether the decreetal property as de scribed in the decree has been handed over to the decree holder or not and in th e instant case, it appears from record that the same has been handed over to the decree-holder’s attorney. 18. To put it a little differently, the present petitioners got their names mutated in place of Prabhat Lal Baruah as legal heirs of Prabhat Lal Baruah. Thi s was wholly illegal and was rightly set aside by the learned Additional Deputy Commissioner. As there was no infirmity in the direction given by the learned Ad ditional Deputy Commissioner, it logically follows that the learned Board of Rev enue could have done nothing, but dismissed the appeal and that is what has actu ally been done by the learned Board. 19. Coming to the directions, which have been issued by the learned Board, i t may be pointed out that since the present petitioners have been seeking mutati on in their favour and in the facts and circumstances of the present case, no su ch mutation could have been granted in their favour, the leaned Board was wholly justified in asking the present petitioners to get their rights, title and inte rest established by taking recourse to a civil suit. This apart, the learned Boa rd has not directed, as correctly pointed out by Mr. Bhuyan, that mutation in fa vour of the private respondents herein shall be granted without any application having been made by them seeking such mutation. 20. Notwithstanding, however, the fact that no direction has been issued by the learned Board to grant mutation of the land, in question, in favour of the p rivate respondents herein, it is important to understand the scheme of mutation as embodied in the Regulations. It must be borne in mind that the Regulations do not lay down making of an application for mutation as the only way for mutation of the name of a person. Far from this, Rule 53-A reads: 53.A(1) Notwithstanding anything contained in section 50 to 53, where the Deput y Commissioner has received information, otherwise than through an appli›cation, of any such taking possession or assumption of charge as is referred to in sect ion 50, he may make an order directing the registration of the name of the perso n so taking possession or assuming charge. Provided that-- (a) the information has been verified by local enquiry made by an officer not below the rank of an Assistant Settlement ›officer, or (b) notice has been published and an inquiry has been held in the manner presc ribed by sections 52 and 53 as if an appli›cation for registration had been rece ived from the person to whom the information relates. (2) Where any person is aggrieved by an order directing registra›tion under this section, which has been made after verification of the information received by load inquiry only, he may within a period of three years of the date of such ord er apply to the Deputy Commis›sioner to have such order set aside, and on receip t of such application the Deputy Commissioner shall cancel the registration and then pro›ceed to publish the notice and hold the inquiry prescribed by sections 52 and 53 as if an application for registration had been received from the perso n whose name had been registered. 21. A bare reading of the provisions, contained in Rule 53-A, makes it abund antly clear that even when an application has not been made seeking mutation, it is within the powers of the Deputy Commissioner to direct mutation of the name of a person in respect of a land. The scheme of the Regulations shows that apart from the fact that the Deputy Commissioner has such a power, Rules 52 and 53 gi ve every person, interested in getting his name mutated in respect of a land, to apply, as provided in Rule 52, for mutation, and, if such an application is mad e, it will be dealt with, and disposed of, by making necessary orders in accorda nce with the provisions of Rule 52 read with Rule 53. Logically, therefore, when , on an appeal, preferred under Section 147, mutation, granted in favour of a pe rson, is set aside and the mutation is directed to be cancelled, there is no imp ediment, on the part of the appellate authority ¾ be it the Deputy Commissioner, Additional Deputy Commissioner or the Assam Board of Revenue ¾ to direct mutati on of the land in favour of the person on whose appeal mutation has been cancell ed, if such a person is found to have title to, and possession of, the land invo lved in such a mutation proceeding. The remedy of the person, who feels aggriev ed by such a decision ¾ if the decision is, otherwise, in accordance with law ¾ lies in instituting appropriate suit seeking declaration of his rights, title an d interest and, if necessary, recovery of possession. 22. Situated thus, it becomes clear that contrary to what has been submitted on behalf of the present petitioners, the learned Additional Deputy Commissione r, while setting aside the order, dated 03.04.2003, passed by the Circle Officer , Guwahati Circle, had the jurisdiction to direct, and had rightly directed, the land record to be corrected in terms of the findings reached by the learned app ellate authority. The learned Board also committed no error of jurisdiction in m aintaining such an order and in suggesting to the present petitioners to take re course to appropriate civil proceedings for remedy of their grievances. Though t he learned Board has not specifically directed the mutation to be granted in fav our of the private respondents without an application having been made by them, in this regard, there was really no impediment, in law, and there is no impedime nt, on the part of the revenue authorities, to mutate the land, in the facts and circumstances of the present case, in favour of