WP(C) 4082/2005 BEFORE THE HON’BLE MR. JUSTICE U.B.SAHA 1. The challenge in this writ petition is the judgment, dated 20.5.2005, pa ssed by the Court of the Assam Board of Revenue, Guwahati, ( hereinafter, for sh ort, referred to as ’Board of Revenue’), in case No. 107 RA (K)/02 (Annexure-24 to the writ petition) whereby and whereunder the order, dated 4.10.2002, passed by the Settlement Officer, Guwahati in R.A. No. 9 of 2002 (Annexure-16 to t he writ petition) upholding the order, dated 18.1.2002, passed by the Asstt. Set tlement Officer, Guwahati in Misc. Case No. 29 of 2000, holding, inter alia, tha t the dispute in between the appellant and respondent are civil in nature and as such civil court can decide the title and accordingly the misc. case was dispos ed of thereby the appeal filed by the appellant, respondent No.7 herein, was dis posed of 2. Heard Mr. S. Kalita, learned Counsel for the petitioner and Mr. Shiladit ya, learned Counsel appearing for respondent No.7. Also heard Mr. B.N. Gogoi, le arned Govt. Advocate appearing for the respondents 1 to 5. 3. Admittedly, the petitioner, Smt. Manjula Hoque, was adopted by Md. Amiru l Hoque. She happened to be the daughter of his elder brother who died while Man jula was two months old and her mother predeceased him just at her birth time. S ince then Majula was living with Amirul Hoque as his only daughter. 4. Amirul Hoque, a resident of Christianbasti, Guwahati, had two plots of land measuring 2 katha 15 lechas covering Dag No. 936, K.P Patta No. 32 and 1 k atha 15 lechas covering Dag No. 935, K.P. Patta No. 305. 5. Both plots were contiguous situated on G.S. Road, Christian Basti, Guwah ati. In 1 Katha 10 lecha, there was a big R.C.C. building measuring little less of 500 sq. ft which was originally used as residence of Amirul Hoque. Smt. Manju la was brought up there. 6. Respondent 7, Mustafa Shahidul Islam, a Member of Legislative Assembly ( MLA), as he then was, married Manjula in the year 1988. He was also staying with Manjula at the residence of Amirul Hoque, father of Manjula. It is stated that soon thereafter, he started ill-behaving and torturing with Manjula and her pare nts to transfer entire landed property of Amirul Hoque in his name. While said p roposal was not accepted, respondent No.7 implicated Amirul Hoque, in a false ra pe case. In the result, Amirul Hoque had to suffer in jail for forty-five days. 7. Thereafter, Amirul Hoque became ill. Ultimately he decided to gift out b oth plots of land in favour of petitioner and in 1989, he openly declared about gifting of both plots to his daughter only, as he was not even in a position to take effective step for transferring the aforesaid plot of land. 8. Upon accepting and taking possession of gifted lands, Manjula made forma l petitions to the Settlement Officer for mutation. Accordingly, two mutation ca se No. 3424/92-93 and 3425/92-93 was registered and thereafter, records of afore said cases were transferred to the Assistant Settlement Officer. 9. After considering Lat Mandal’s report as to the petitioner’s possession, the Assistant Settlement Officer vide order, dated 23.6.1993, granted mutation to the petitioner in respect of both plots of land and thus aforesaid two plots of land of Amirul Hoque were transferred in the name of petitioner. Thus, she be came a valid owner, title holder and possessor of both plots of land. Subsequent ly, Guwahati Municipality Corporation (GMC) holding and electricity connection w ere also transferred in her name and she has been paying the land revenue taxes. 10. In 2 katha 15 lechas of land, there were total fifteen tenants who were shopkeepers at the time of father of the petitioner. But after mutation being g ranted to the petitioner, they came to be under her tenancy. 11. In 1997, as decided, the petitioner and her husband along with their two minor children and the father of the petitioner came to MLA Hostel to live ther e. 12. The RCC building they lived in on 1 katha 10 lechas was divided into two parts. One part was let out to one Mrs. Gita Rani Ghosh, proprietress of M/s Gh osh Brother (P) Ltd. and the other part to one Mrs. Nivedita Baruah, proprietres s of M/s Olivia Motors which was handed over to them by the petitioner in August , 1997 in presence of her husband, respondent No.7, on monthly rental basis. She also signed two separate lease deeds in respect of both the tenants and since t hen, they possessed the land in question under the tenancy of the petitioner. 13. At the time of handing over the possession, the petitioner accepted some advance amounts from Mrs. Nivedita Baruah and also issued money receipt whereup on the respondent No.7, the husband of the petitioner put his signature as a wit ness. 14. After completion of interior decoration on 12.2.1998, the petitioner sig ned two separate Lease Deeds in respect of both the tenants. Two affidavits were sworn by them recognizing the tenancy of the petitioner. Copy of the money rece ipt, two lease deeds and two affidavits aforementioned are annexed as Annexure-9 , 10, 11, 12 and 13 to the writ petition 15. It is claimed by the petitioner that father of the petitioner prepared a Deed of Declaration in the form of Affidavit with regard to his gift, but respo ndent No.7 took away the same to destroy the evidence. 16. It is also alleged that respondent No.7 started frequent torture upon th e father of the petitioner. Ultimately, he died on account of his heart attack a t Neurological Hospital, Guwahati on 20.1.1998. 17. It is further stated that respondent No.7 then liked to take hold of gif ted landed property of the petitioner and he also grabbed another plot belonged to one widow Mrs. Sujata Pathak who later recovered it from him. 18. Thereafter, respondent No. 7 has increased inhuman tortures upon the pet itioner. She fled away from MLA Hostel and took shelter as guest in another hous e where she was advised to build a house in her own land. Accordingly, she built up a small type Assam house in a corner of the plot of 2 katha 15 lechas with h er own money. From September, 1999 she has been staying at her said house with h er children. 19. Subsequently, Respondent No.7 also went there along with his armed house guards who allegedly used them to detain the petitioner at that house. It is al so alleged that Respondent No. 7 on 27.1.2003 broke open the door of the house o f the petitioner in her absence, looted many valuables including land documents, bank pass book, many security deposit certificates etc. and also started stayin g there with one widow, namely, Mrs. Runa Begum. 20. In this connection, the petitioner lodged an FIR to the Officer In-charg e, Dispur Police Station, Guwahati which was registered as Dispur P.S. Case No. 87/03 under Sections 454,380,427 IPC, (Annexure -14 to the writ petition). 21. One Kanakeswar Gogoi, respondent No.8, then came to show that a plot mea suring 1 katha 10 lechas was sold to him by the father of the petitioner by a registered deed in 1984 and another plot of land measuring 2 katha 15 lechas wa s also sold to him by another registered sale deed in the year 1995 who sold the same to respondent No.7 in the year 1998. Thus, respondent No.7 claimed mutati on striking out the name of the petitioner from the records of chitha/jamabandi. 22. During 1997-98-99, the resettlement operation and survey was going on in the city, Guwahati and taking advantage of such situation, respondent 7 managed to record his name as provisional mutator in respect of both plots of land in the Chitha Book (Field Index) in place of petitioner and then claimed for forma l mutation thereof. 23. It is contended that when the commission of fraud and cheating of the re spondent No.7 and 8 were detected in the year 2000, the petitioner filed Title S uit No. 286 of 2000 before the learned Civil Judge (Senior Division) No.2 prayin g for decree for declaration that aforesaid sale deeds of the respondent No. 7 a re illegal, inoperative and void and also for confirmation of possession. Respon dent No.7 filed counter-claim praying for a decree for his right, title and inte rest in reference of same plots of land. The said suit is still pending. 24. During pendency of the suit, the petitioner also filed a misc. (J) case under order 30 Rule 1 & 2 of CPC for passing an ad-interim injunction that was a llowed which was challenged by respondent No 7 before this Court vide MFA No 62 of 2000. While disposing the same, it was ordered to maintain status quo till f inalization of the main suit. 25. However, respondent No.7 submitted a petition to the Assistant Settlemen t Officer, Guwahati for granting mutation in favour of him which was rejected by an order, dated 18.1.2000. 26. Against the order dated 18.1.2000, the respondent No.7 has preferred an appeal to the Settlement Officer which was registered as R.A. Case No. 9 of 2002 which was rejected by the Settlement Officer by order, dated 4.10.2002, upholdi ng the order of the Assistant Settlement Officer. 27. Being dissatisfied with the order of the Settlement Officer, respondent No.7 preferred another appeal before the Board of Revenue which was registered a s R.A. 107(K)/2002. The said case was contested by the petitioner by filing two sets of written arguments contending, inter alia, that she is the recorded owner since 1993. The petitioner also submitted documentary evidence, affidavit sworn by all 17 tenants showing their possession under her tenancy since 1993. 28. It is submitted by the petitioner that in course of hearing of the appea l, the petitioner by filing a petition under Section 141 of Assam Land and Reven ue Regulations prayed for recording the evidence of a number of witnesses on the point of her title and possession of the land as the Board is empowered to deci de the issue in accordance with the Rule 24 of Board of Revenue Regulation Rule, 1963, but the Board rejected such petition without showing any reason. 29. During the pendency of the appeal, the Board called for para wise commen ts in reference to the appeal of respondent No.7 and the new Settlement Officer submitted his report on 6.6.2003 stating, inter alia, that after the death of A mirul Haque, his only daughter Smt. Manjula Hoque’s name was mutated. Smt. Manj ula’s name was mutated in Mutation Case No. 3424/92-93 and 3425/92-93 on 23.6.93 . However, during the field survey under the resettlement operation, the name of Sri Sahidul Islam was also entered in the same Dag and Patta No. So both Sri Ma njula Hoque and Sri Sahidul Islam’s appeared in Dag No. 935 and 936 in KPP 305 a nd 32 respectively in 1998. But as a matter of fact, the name of Smt. Manjula Ho que was later struck out from the Dag No. 936 of KP 32 and the respondent No. 7 is in possession and his possession is continuous. 30. But it is the case of the petitioner that she is having three GMC holdin gs, 2 electricity connections, affidavits of all 17 tenants which show that the petitioner is in active possession over two plots of land- one measuring 1 katha 10 lecha and 2 katha 15 lechas except 2/3 lecha thereof wherein the respondent No.7 has been staying in an Assam Type House belonging to the petitioner since 2 7.1.2003 and the respondent No.8 never took over the possession of those plots of lands and acquired right to sell the lands in question. 31. It is further stated that the petitioner has filed a criminal complaint against the respondent No. 7 and 8 to the Officer In-charge, CID Police Station that was registered as CID P.S case No. 44 of 2002 under Sections 406/420/468/47 1/120-B IPC. 32. It is also alleged by the petitioner that though at the initial stage, t he police was very serious in the process of investigation, but after few months , they went slow against respondent No.7. However, respondent No.8 published a n ews in a local Assamese daily, namely, ’AJI’ declaring that he neither purchased lands measuring 2 katha 15 lecha and 1 katha 10 lecha from Amirul Haque nor so ld them to anyone. 33. The Board of Revenue of Assam ultimately allowed the appeal preferred by the respondent No 7 by setting aside the order of the Settlement Officer as not ed above. 34. Being aggrieved by the judgment of the Board of Revenue, the petitioner has filed the instant writ petition. 35. It is the contention of the petitioner that as per provisions of Chapter VIII of Assam Land and Revenue Regulations and Board of Revenue Regulation Rule , 1963, the Board of Revenue has the power to adjudicate any revenue appellate dispute by way of properly framing the issues in dispute, taking evidence, exami ning the real situation, documents and records etc., but the learned members fai led to act in accordance with aforesaid provisions, thus failed to appreciate t he tenancy of the petitioner and also the mutation of the land in question gran ted to the petitioner for which the limitation period prescribed for two months. 36. It is also stated by the petitioner that Board of Revenue also did not c onsider whether the appellant satisfied the provisions of Chapter-IV, Part-B i.e . the Section 50 to 53 of Assam Board of Revenue Regulations or not while claimi ng mutation to be granted in favour of him when the records furnished to the Boa rd clearly show that since 1993 till date, the entire estate is under active pos session of the petitioner. 37. It is further stated that the Board of Revenue passed the impugned judgm ent on the basis of the report, dated 6.6.2003, submitted by the Settlement Offi cer which was a fabricated one and distorted the real facts stating, inter alia, that respondent No.7 has been in possession and his possession is continuous wh ile the petitioner got her name mutated at the life time of her father in the ye ar 1993 while her father died on 20.1.1998, and the said mutation order dated 23 .6.1993 in favour of the petitioner is protected by Section 153 of Chapter IX of Assam Land & Revenue Regulation, but the Settlement Officer recorded in his rep ort that the father of the petitioner died in 1993 and thereafter, the name of t he petitioner got mutated. The petitioner raised this point by submitting the written argument, but the Board of Revenue did not discuss the same, rather over looked it, therefore, the impugned judgment is liable to be set aside and quashe d. 38. Further contention of the petitioner is that for the first time, respond ent No.7 raised an issue before the Board of Revenue alleging that mutation case No. 3424/92-93 was recorded in the name of one Bijoy Sharma and 3425/92-93 was recorded in the name of one Nripendra Nath Talukdar and the mutation cases as re ferred to by the petitioner are false. But the Board of Revenue, though prayed b y the petitioner, did not call for the records or Register Book of 1993-94, as t he petitioner’s mutation was made in the month of June, 1993. The Board of Reven ue acted only on the report of the Settlement Officer that original case records of 3424/92-93 and 3425/92-93 are missing and thus held that such registration n umbers are false. 39. It is also contended by the petitioner that though the Board of Revenue consisted of two Members, but out of them, one Member heard the appeal preferred by the respondent No.7 and other Member was absent, but ultimately, the judgmen t was pronounced and signed by both the members of the Board of Revenue, for whi ch the entire proceeding is liable to be quashed. 40. The petitioner also filed the additional affidavit contending inter al ia, that the transfer of municipal holding in the name of petitioner was well aware to the respondent No. 7 as on numbers of occasion he deposited the municip al taxes on behalf of the petitioner which would be evident from Annexure 1 to 3 to the Additional affidavit filed by the petitioner and the tax receipt was si gned by the respondent No.7 as depositor on 18.6.1997 and as the owner of the l and, the petitioner leased out in two parts of 1 katta 10 leches to two tenants , namely, Smt. Nibedita Baruah and Smt. Gitarani Ghosh, which facts was admitted by the respondent No. 7 in his affidavit in opposition. 41. Respondent No. 4 has filed the counter affidavit to the writ petition st ating, inter alia, that the mutation in Dag No. 935 and 936 was granted in favo ur of the petitioner, the adopted daughter of pattadar by virtue of gift and po ssession by the then Asstt. Settlement Officer in Mutation case No. 3424/92-93 a nd 3425/92-93 on 23.6.93 and during field survey under re-settlement operation, name of respondent No. 7 was mutated in the above Dags by virtue of purchase b y the then Asstt. Settlement Officer. 42. It is further stated by the respondent No. 4 that as per records, the mu tation in the name of respondent No.7 was granted on the basis of sale Deed No. 4043/98 and 3514/98 of Guwahati Sub-Register Office. The said Sale Deed showed that respondent No. 7 had purchased the aforesaid plots of land from respondent No.8. 43. It is also stated that as per link, Sale Deed No. 5445/84 and 299/95 of Sub Registry Office, Guwahati, the respondent No.8 appeared to have purchased th e above plots from Md. Amirul Haque, father of the petitioner. 44. It is further stated by the respondent No.4 that as per draft chitha, th e name of respondent No.7 was mutated in Dag No. 936(old), 2451(new) covered by K.P. Patta No. 32(old), 199(new) along with petitioner and in place of her Dag N o. 935(old), 2452(new) covered by K.P. Patta No. 305(old), 30(new) of village Ja porigog. Thus the name of the petitioner was struck off from Dag No. 935(old), 2 452(new) and land records were corrected accordingly. It is also stated that the dispute over the possession was still on and it changed time and again. But rec ently Smt. Manjula Islam has sold 1 katha 10 lechas land under Dag No. 935 of K. P. Patta No. 305 to Shri Pranab Kumar Ghosh vide Regd. Deed No. 9885 dated 16-08 -2005. At present both the purchasers are in possession. 45. Respondent No.7 also filed affidavit in opposition on denying all the al legations made by the petitioner. But he admitted that father of the petitioner was the original pattadar of the aforesaid two plots of lands and he married the petitioner and out of their wedlock, two children were born. But he denied his stay with the petitioner at petitioner’s father’s house. 46. Respondent No.7 further contended in his affidavit in opposition that t he father of the petitioner by registered sale deed dated 7.5.84 sold 1 Katta 1 0 lechas of land under Dag No. 935 of K.P Patta No. 305 to respondent No.8 whic h he sold to respondent No.7 by a sale deed dated 23.6.98. He also contended tha t by another sale deed dated 5.9.95 the father of the petitioner sold 2Katta 15 lechas of land under Dag No. 936 to respondent No.8 and later on respondent No.8 sold the same to the respondent No.7. Respondent No.7 thus became the owner of the entire land together with the house thereon. Thereafter, he applied for muta tion, but as re-settlement process was going on, the same could not be made. But he is paying the land revenue. 47. It is also contended by the respondent No. 7 that mutation does not conf er title on anybody. Therefore, the petitioner by obtaining fraudulent mutation in the year 1993 cannot claim ownership over the land on the basis of the said m utation order in Mutation case No. 3424/92-93 and 3425/92-93 which was not insti tuted by the petitioner, but by other two separate persons. 48. The respondent No. 7 has filed another affidavit in opposition wherein h e annexed the final report submitted in CID police station case. One Grindra Nar ayan Roy, CID Inspector of Police, CID P.S submitted the final report on 7.11.07 stating, inter alia, that it is found to be correct that the accused Mustafa Sh ahidul Islam (respondent No.7) has purchased the land, there is no illegality or conspiracy or cheating in so purchasing the land. This case is an outcome of mi sunderstanding between both. 49. Mr. Kalita, learned Counsel appearing for the petitioner while urging fo r the relief sought for submits that admittedly the land in question for which m utation is sought for by the petitioner was the land of her father who orally gi fted the said land to the petitioner and oral gift is valid under the provisions of Sections 147 to 150 of Mahammedan Law for which writing is not necessary. In support of his contention, he relied upon two decisions of the Apex Court in Ma hboob Sahar Vs. Syed Ismail and ors (1995) 3 SCC 693 and Ram Niwas Todi and ano ther Vs. Bibi Jabrunnissa and ors, (1996) 6 SCC 444. 50. He further submits that admittedly the land in question was/is under the possession of the petitioner. He further urges that the order, dated 23.6.93, i n original mutation proceedings being case No. 3424/92-93 and 3425/92-93 wherein the prayer for mutation was allowed by the Assistant Settlement Officer and the order of the Settlement Officer dated, 4.2.2002, in R.A. No. 9 of 2002 affirmi ng the order of the Assistant Settlement Officer is valid and reasonable. 51. He further submits that the story of selling of landed property in quest ion by the father of the petitioner to the respondent No. 8 is nothing but an at tempt of fraud on the part of the respondent No.7, as the respondent No. 8 hims elf made a declaration in a local paper AJI that he had never purchased the land at Dag No. 936 Patta No. 32 measuring 2 Katta 15 lechas and Dag No. 935 Pa tta No 305 measuring 1 Katta 10 lechas from the father of the petitioner at any time and he also did not sell the same to anybody and he is not answerable to a nybody relating to that land which would be evident from Annexure-6 to the aff idavit in reply filed by the petitioner on 10.12.2007 before this Court. 52. He further contends that the respondent No.7 in his Memo of appeal state d that after two and half years of the death of the petitioner’s father, he firs t time came to know about GMC mutation of the petitioner and consequent thereto, he applied for cancellation of the mutation of the petitioner. In fact, the re spondent No.7 was not only aware about GMC mutation, but he himself acted as an agent of the petitioner to deposit the municipality tax in the year 1997, partic ularly, on 18.6.1997 which will be evident from Annexure-1 to the affidavit in r eply filed by the petitioner and father of the petitioner died on 20.1.1998, i.e . after the said deposit of the municipal tax by the respondent No. 7. 53. It is also contended by the learned Counsel that in 1997 during