WP(C) 562/2009 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY This appeal is directed against the judgment and order dated 15.10.2008 passed by the Assam Board of Revenue in Case No.147 RA(DBR)/07 dismissing the ap peal preferred by the present petitioner by upholding the order dated 04.07.2007 passed by the Settlement Officer in Misc. Appeal No.30/2006 and also observing that Sabbas Ali and on his death his legal heirs will be the persons whose name can be mutated on the Sabbas Ali’s share of land. The writ petitioner alleging transfer of the land measuring 3 bighas 2 k athas 0 lecha of Kurshamari village in Dag No.2, Khatian No.2 under Chapar Circl e in the district of Dhubri, filed an application before the Settlement Officer requesting mutation of name in the revenue record in respect of the said land, o n the basis of which the Addl. Deputy Commissioner, who is the Settlement Office r, Dhubri, vide communication dated 08.02.2006 directed the Asstt. Settlement Of ficer to mutate the name of the writ petitioner. The Asstt. Settlement Officer a ccordingly, without issuing any notice to the pattadars, allowed the mutation, w hich came to be challenged by the present respondent No.5 in an appeal preferred before the Settlement Officer together with an application seeking condonation of delay. The Settlement Officer after condoning the delay and upon hearing the parties concerned vide order dated 04.07.2007 passed in Misc. Appeal No.30/2006 set aside the order dated 18.04.2006 of the Asstt. Settlement Officer, granting mutation and remanding the matter to the said authority for deciding afresh, sin ce such order was passed without issuing any notice to the pattadars. The writ p etitioner being aggrieved by the said order dated 04.07.2007 passed by the Settl ement Officer, filed the Case No.147 RA(DBR)/07 before the Board of Revenue, whi ch has been dismissed, with the observation, as noticed above, vide judgment and order dated 15.10.2008. Hence the present writ petition. I have heard Mr. H. Sarma, learned counsel for the petitioner as well as Mr. J. Sarma, learned State counsel appearing for the respondent Nos.1 to 4 and Mr. Roy, learned counsel appearing for the respondent No.5. It has been submitted by Mr. Sarma, learned counsel for the petitioner t hat since the Asstt. Settlement Officer has passed the order of mutation on 18.0 4.2006 on the basis of the direction issued by the Settlement Officer vide commu nication dated 08.02.2006, no further appeal lies to the Settlement Officer agai nst such order passed by the Asstt. Settlement Officer and as such the Settlemen t Officer ought not to have passed the order dated 04.07.2007 setting aside the order passed by the Asstt. Settlement Officer, which aspect according to the lea rned counsel for the petitioner has not been considered by the Board of Revenue. The learned counsel further submits that out of the 3(three) brothers, namely, Sabbas Ali, Asmotullah and Abbas Ali, who own the land measuring 3 bighas 2 kath as 0 lecha, Asmotullah died leaving no heirs and thereafter Sabbas Ali during hi s lifetime relinquished his right in favour of Abbas Ali, who by a registered de ed of sale transferred the land in favour of the petitioner, on the basis of whi ch the Settlement Officer vide communication dated 08.02.2006 directed the Asstt . Settlement Officer to grant mutation, which ought not to have interfered with by the Settlement Officer, as has been done vide order dated 04.07.2007. The lea rned counsel submits that since the petitioner has purchased the land by a regis tered deed of sale from Abbas Ali, who became the owner in respect of the entire land, the Board of Revenue ought not to have make any observation relating to t he entitlement of the mutation by Sabbas Ali or his legal heirs in respect of ha lf of the land of 3 bighas 2 kathas. The learned counsel, therefore, submits tha t the order passed by the Board of Revenue needs to be interfered with. The learned counsel appearing for the respondent No.5, on the other hand , has submitted that in the appeal before the Settlement Officer, the respondent No.5 has challenged the order dated 18.04.2006 passed by the Asstt. Settlement Officer granting mutation in favour of the writ petitioner even without issuing any notice to the pattadars. Since such an order was passed by the Asstt. Settle ment Officer, an appeal under Section 147 of the Assam Land and Revenue Regulati on was filed before the Settlement Officer and the same was rightly entertained by the Settlement Officer vide order dated 04.07.2007. The learned counsel furth er submits that in view of the said position, the Board of Revenue has rightly d ismissed the appeal preferred by the writ petitioner. It has also been submitted that Sabbas Ali during his lifetime never relinquished his right over half of 3 bighas 2 kathas of land and in fact, after his death the name of the respondent No.5 was mutated in the revenue record. The learned counsel further submits tha t since the petitioner is claiming the entire land measuring 3 bighas 2 kathas b y right of purchase, he has to establish his right in a Civil Court by filing ap propriate suit for that purpose. Mr. J. Sarma, learned State counsel appearing for the respondent Nos.1 t o 4 has submitted that as the writ petitioner has claimed right on the basis of a sale deed, he has to establish his right in a Civil Court having jurisdiction over the matter. It appears from the order dated 04.07.2007 passed by the Settlement Offi cer that the respondent No.5 has challenged the order dated 18.04.2006 passed by the Asstt. Settlement Officer granting mutation in favour of the writ petitione r, without issuing any notice to the pattadars. No doubt such order was passed b y the Asstt. Settlement Officer on the basis of the communication dated 08.02.20 06 issued by the Settlement Officer. The Settlement Officer, in fact, ought not to have directed the Asstt. Settlement Officer to pass the order of settlement w ithout issuing any notice to the pattadars. Since the ultimate order of mutation was passed by the Asstt. Settlement Officer on 18.04.2006, the appeal was right ly entertained by the Settlement Officer. The order dated 18.04.2006 having been passed without issuing any notice to the pattadars, no illegality has been comm itted by the Settlement Officer in setting aside the order granting mutation in favour of the petitioner. The Board of Revenue, therefore, has not committed any illegality in passing the impugned order, requiring inference in exercise of th e certiorari jurisdiction under Article 226 of the Constitution of India. Since the petitioner is claiming the right over the property i.e. the la nd measuring 3 bighas 2 kathas by right of purchase, contending that one of the 3(three) brothers relinquished his right in favour of the vendor of the petition er and as such the vendor of the petitioner became the absolute owner of the lan d measuring 3 bighas 2 kathas, he has to establish the right in the Civil Court having jurisdiction over the matter, as, such right cannot be declared by a Reve nue Court. That being the position, while refusing to interfere with the judgment a nd order passed by the Board of Revenue, the writ petition is disposed of with o bservation that the petitioner may file appropriate civil suit before the approp riate Civil Court having jurisdiction over the matter for declaration of his rig ht, title and interest by virtue of purchase, if so advised. The writ petition is accordingly disposed of. No costs.