WP(C) 4962/2008 BEFORE THE HON’BLE MR. JUSTICE U.B.SAHA The challenge in this writ petition is the judgment, dated 5.5.2008, passed by t he Assam Board of Revenue, Guwahati, (hereinafter, for short, referred to as ’Bo ard of Revenue’) in 10 RA(K)(RVW)/07 whereby and whereunder the petition under Section 7 of the Assam Board of Revenue Act, 1962 filed by the petitioners prayi ng for review of the judgment dated 22.5.2007 passed by the Board of Revenue in Appeal No. 106 RA(K)/2006 has been dismissed. 2. The pleaded case of the petitioners, in brief, is that the petitioners p urchased 1 katha 10 lechas of land from the respondent No.5 vide sale deed No. 9 885 of 2005 duly executed on 12.8.2005 by her which was registered in the offic e of the Sub-Registrar, Guwahati on 16.8.2005 after obtaining requisite sale per mission issued from the office of the Deputy Commissioner, Kamrup, Guwahati vi de Memo Dated 8.7.2005 ( Annexure 2) and Guwahati Metropolitan Development Authr ity (GMDA) vide order dated 4.8.2005 (Annexure-3). 3. Thereafter, the petitioners applied for mutation of the aforesaid land i n their names, but the Senior Assistant Settlement Officer, the respondent No. 3 herein, rejected the said prayer by an order dated 5.12.2005 ( Annexure-4) pa ssed in Misc. Case No. 55/05-06 stating inter alia that At present the land is disputed and W. P. C (No.-4082/2005) is pending before the Hon’ble Gauhati High Court between Smt. Manjula Haque Islam vs. The State of Assam & others. Since t he land applied for mutation is disputed and the name of the seller is struck of f from the land records, the petition for mutation cannot be considered for muta tion. Hence the petition is rejected. 4. Against the order of respondent No. 3, the petitioners filed an appeal w hich was registered as R.A. case No. 14/05-06. The Settlement Officer, Guwahati, the respondent No. 2 herein, by an order dated 23.8.06 (Annexure-6) disposed of the said appeal observing that It is evident that Smt. Manjula Haque Islam S/o late Amirul Haque has submitted petition to the Hon’ble Gauhati High Court for issue of writ under W.P.(C) 4082/05 against the order of the Hon’ble ABR dtd. 20 .5.2005 in case No. 107/RA (K)/2002 over the disputed land in this case. The Hon ’ble High court has already issued notices all concerned and the case is pending till now. Incidentally the above Manjula Haque Islam is the seller of land to t he appellants. In view of the above, order of the Sr. A.S.O as maintained above is upheld. Appeal is disposed of. 5. The petitioners then approached to the Assam Board of Revenue, Guwahati, respondent No.1 herein, by filing an appeal under Section 147(a) read with Sect ion 151 of the Assam Land and Revenue Regulation, 1886 against the order of the respondent No.2 which was registered as 106 RA(K)/2006. The Board of Revenue did not interfere with the impugned order dated 23.8.2006 (Annexure-6) passed by th e respondent No.2 and while dismissing the appeal being not maintainable by its judgment dated 22.5.2007, it held that Hon’ble High Court’s stay order dated 6 .6.2006 in W. P(C) 4082/05 does not amount to cancellation of the Board’s impugn ed order dated 20.5.2005 on declaring title over the suit land in favour of the respondent No.1 in the revenue appeal, i.e. the respondent No. 5 herein, from wh om the petitioners purchased aforesaid land. 6. Thereafter, the petitioners again filed an application under Section 7 o f the Assam Board of Revenue Act, 1962 praying for review of the judgment dated 22.5.2007 passed by the Board of Revenue in appeal No. 106 RA (K)/2006. The revi ew petition was also dismissed by the Board of Revenue by an order dated 5.5.200 8 (Annexure-10). 7. Being aggrieved by the said order, the petitioners have filed the instan t writ petition for setting aside the impugned order dated 5.5.2008 and also for directions to grant mutation to the petitioners in respect of the land they pur chased vide sale deed No. 9885 of 2005. 8. It is to be noted here that the Board of Revenue passed the order dated 20.5.2005 allowing appeal No. 107 RA (K)/02 under Section 147 read with Section 151 of the Assam Land and Revenue Regulation, 1886 filed by the husband of the r espondent No.5 herein which has been challenged in W.P. (C) 4082 of 2005. 9. None of the respondents filed any affidavit in opposition reverting the contention of the petitioners in the writ petition. 10. Dr. Lal, the learned Counsel of the petitioners submits that admittedly the petitioners have purchased 1 katta 10 lechas of land from the respondent No. 5, Smt. Manjula Haque Islam vide sale deed No. 9885 of 2005 duly executed on 12. 8.2005 after obtaining proper permission from the Deputy Commissioner, Kamrup, g uwahati vide Memo dated 8.7.2005 as well as GMDA vide order dated 4.8.2005, Anne xure-2 and 3 to the writ petition respectively. 11. He further submits that it is also admitted position that the respondent No.5 is the owner of the land in question and the said land was mutated in her name which was subsequently cancelled by the Board of Revenue against which she preferred W. P. (C) 4082 of 2005 12. He again contended that vide order dated 5.12.2005, the learned senior A ssistant Settlement Officer rejected the prayer for mutation of the petitioner o n two grounds-(1) that the name of the seller Smt. Manjula Haque Islam ( respond ent No.5) was struck off from Dag No. 935 (old) 2453 (new) covered by K.P Patta No. 305(old) 30(new) by order of the Assistant Settlement Officer and that the records were corrected accordingly; (2) at present the land is disputed and W.P.(c) No. 4082/2005 is pending before this Court which was filed by the vendo r of the petitioner Smt. Manjula Haque Islam. 13. His further contention is that the senior Assistant Settlement Officer i n his order nowhere stated when the name of the vendor of the petitioner was str uck off from the record. According to him, even on 7.12.2004 when the petitioner verified the record of the land in question, the name of his vendor Smt. Manjul a Haque Islam was very much in existence which would be evident from Annexure-5 and 5A to the writ petition. 14. He finally contended that both the Settlement Officer and Senior Assista nt Settlement Officer failed to consider the fact that the Deputy Commissioner, Kamrup has granted permission for sale and purchase of the land in question on 8.7.2005 vide Annexure-2 and consequent thereto, the GMDA has also granted permi ssion on 4.8.2005 vide Annexure-3 to the writ petition. Therefore, in the Govt. record, even on 4.8.2005, the vendor of the petitioner was shown as owner of the land. More so, on 6.6.2005, in W. P(C) 4082 of 2005 this Court also stayed the judgment and order of the Revenue Board dated 20.5.2005 passed in case No. 107(R A)(K)/2002, thereby, the order of the Settlement Officer affirming the order o f Assistant Settlement Officer in favour of the respondent No.5 was in operation and thus she had/has right to transfer the land and handing over the possessi on of the land. He also contended that from the affidavit of the respondent No .4, the Settlement Officer, Resettlement Operation, in his affidavit in W. P.(C) 4082 of 2005 specifically stated that dispute over the possession was still o n and it changed time and again, but recently Smt. Manjula Islam, the responden t No.5 herein has sold 1 katta 10 lechas land under Dag No. 935 of K.P Patta No. 305 to the petitioner vide registered Sale Deed No. 9885 dated 16.8.2005 and at present both the purchasers are in possession, meaning thereby the petitioner i s also in possession. 15. He further contended that for granting mutation, possession is the sine quo non and admittedly, the petitioner is in possession over the land having pur chased the same from the respondent No.5. Therefore, the senior Settlement Offic er as well as the Revenue Board committed error by not granting mutation in fav our of the petitioner on the ground that at present there is a dispute regarding the land in question and the writ petition being No. 4082 of 2005 pending in t he High Court. He also referred to a decision of this Court in Paramesh Sarmah and ors Vs. Islam Ali and ors (2002) 3 GLR 1, wherein a coordinate Bench of this Court while dealing with the provisions of Sections 40 and 50 of the Assam Land and Revenue Regulation, noted that the Settlement Officer has to frame for each estate a record of right in the prescribed manner and entry in the record o f rights is to be founded on the basis of actual possession and here admitted ly the petitioner is in possession. 16. He also referred that decision of this Court in Abdul Hasem and ors Vs. Haji Mahiuddin and ors, AIR 1967 Assam and Nagaland 9, wherein it is noted that entries in the record of rights are to be founded on the basis of actual possess ion. He also referred Dayal Hari Paul & ors Vs. Pradip Kumar Lahkar & ors, 2006 (3) GLT 680 wherein this Court again considering the provisions of Section 50 of Assam Land and Revenue Regulation, 1886 held that order of mutation is only to facilitate payment of land revenue and the Revenue Court is not entitled to deci de the title in respect of landed property which is the subject matter of Civil Court. The Apex Court also in various decisions held that the order of mutation does not confer any title. 17. He finally contended that as this Court is taking up the writ petition N o. W.P.(C) 4082 of 2005 and the instant writ petition for hearing, if this Court decides the writ petition of the respondent No.5 in her favour, then the petiti oner would be entitled to get mutation and in that case, this Court has the powe r even to direct the settlement authority to allow the prayer of the petitioner for mutation. In support of his aforesaid contention, he also relied upon the de cision in Bharat Chandra Haloi Vs. Jogeswar Sarma, ILR (1949) 1 Assam 390 wherei n the Chief Justice of Assam High Court while dealing with the revenue appeal re lating to mutation noted that for the respondent, the learned advocate contende d that mere succession to an estate is not sufficient and that the person succee ding must also show that he obtained possession of the interest so transferred. As I pointed out above, the learned Additional Deputy Commissioner did not go in to question of possession at all and did not reverse the decision of the Sub-Dep uty Collector on the ground of want of possession. Further, the order of the Su b-Deputy Collector certainly shows some possession on the part of the appellants and indicates that there had been possession to a greater extent, but that they were subsequently ousted. In my opinion, there is nothing in the material befor e the Court on the question of possession to justify me in holding that the appe llants did not obtain possession. In the result, therefore, the appeal is allowed. The order of the learne d Additional Deputy Commissioner is set aside, and the appellants’ application f or mutation is directed to be allowed. 18 In view of the above position, Dr. Lal further contended that this Court has also the power to direct the Revenue authority for allowing the application for mutation of the petitioner. 19. Mr. Gogoi, the learned Govt. Advocate while resisting the submission of Dr. Lal would contend that the revenue authority i.e. the Settlement Officer and the Board of Revenue rejected the prayer for mutation of the petitioner on the ground of pendency of the writ petition filed by the respondent No.5, though the re is no dispute regarding the possession of the petitioners over the land in qu estion in view of the affidavit of settlement officer in W.P ' 4082 of 2005, a s the respondent No. 4 therein.. 20. He finally submits that the original record relating to the mutation pro ceeding is before the Court and if the Court after going through the relevant fi le and the affidavit of Settlement Officer in W.P (C) No. 4082 of 2005 considers that the petitioner is entitled any relief sought for, then the Court may allow the same for the interest of justice. 21. Mr. Kalita, learned Counsel for the respondent No. 5 submits that when t he respondent No.5 has transferred the land in question by way of executing a sa le deed in favour of the petitioner she cannot oppose the prayer for mutation of the petitioner. He further submits that fact remains that the original patta dar of the land was the father of the respondent No.5 and the respondent No.5 g et the aforesaid property on the basis of the oral gift by her father and it is also settled by the Apex Court that gift by a Mahammedan to another Mahammedan is not required to be in writing and consequently need not be registered unde r the Registration Act and gift being completed after taking over the possessi on of the land. In the instant case, admittedly the writ petitioner is in posses sion of the land in question as would be evident from the affidavit of responden t No.4 in W.P. (C) 4082 of 2005 filed by the respondent No. 5 22. Having heard the learned Counsel of the parties and going through the de cision as referred above, this court is of considered opinion that possession is the sine qua non for mutation of a land sought for by a party though the regist ration of sale deed, if any executed, is given more mileage to the claim of the applicant for mutation. As this Court has discussed in detail regarding the case law cited herein above in W. P. (C) 4082 of 2005 and the facts relating to the nature of land in question and its original pattadar and subsequent transfer, it is not necessary for this Court to go for detail discussion. This Court has alr eady held in the writ petition filed by the respondent No.5, inter alia, that R evenue Board failed to consider what should be the necessary requirement for g ranting mutation and also set aside the order dated 20.5.2005 passed by the Boa rd of Revenue in 107 RA(K)/02 and affirmed the order dated 23.6.93 passed by th e Assistant Settlement Officer in mutation case No. 3424/92-93 and 3425/92-93 an d the order dated 18.1.2001 passed by the ASO in Misc. Case No. 29 of 2000 and order dated 4.10.2002 passed by the Settlement Officer in R.A 9 of 2002 and al so of the considered opinion that the petitioners being in possession over the l and in question on the basis of sale deed as executed by the respondent No.5, th e Revenue Authority committed an error rejecting the prayer for mutation while the name of his vendor was in the revenue record as would be evident from Annex ure-5 and 5A to the writ petition, true copy of which supplied by the Revenue authority on 7.12.04. 23. In the result, the writ petition is allowed. The judgment and order dat ed 5.5.2008 passed by the Assam Board of Revenue in case No. 10 RA(K)(RVW)/07 rejecting the review petition of the petitioner upholding the order dated 22.5 .2007 passed by the Board of Revenue in appeal No. 106 RA(K)/2006 is hereby set aside. Consequent thereto, the order dated 23.8.2006 passed by the Settlement O fficer in R.A No. 14 of 2005 upholding the order dated 5.12.2005 passed by the S r. A.S.O in Misc. Case No. 55/2005-06 is also set aside. The petitioner’s appli cation for mutation is directed to be allowed by the State respondents. No order as to costs.