Wp(C) 51/2011

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

WP(C) No.60/2011

1. Smti. Labanya Dutta, W/O Late Gunindra Nath Dutta.

2 Sri Rajkumar Dutta 3 Sri Biraj Kr. Dutta 4 Sri Dhiraj Kr. Dutta 5 Sri Swaraj Kr. Dutta Persons named at Sl. No. 2 To 5 are sons Of Lt. Gunindra Nath Dutta Resident Of Ward No. 3, North Lakhimpur Town, Mouza- Nakari, P.S. North Lakhimpur, Dist. Lakhimpur, Assam. … Petitioners.

VERSUS

1. The Assam Board of Revenue Guwahati (Through its Chairman). 2 Additional Deputy Commissioner (Revenue) Lakhimpur District, North Lakhimpur, Assam. 3 Sri Munindra Nath Dutta, S/O Lt. Nakuleswar Dutta Ward No. 3, North Lakhimpur Town, P.S. North Lakhimpur, Dist. Lakhimpur, Assam. …Respondents.

WP(C) No.51/2011

1. Smti. Labanya Dutta, W/O Late Gunindra Nath Dutta.

VERSUS

1. The Assam Board of Revenue Guwahati (Through its Chairman).

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2 Additional Deputy Commissioner (Revenue) Lakhimpur District, North Lakhimpur, Assam. 3 Sri Munindra Nath Dutta, S/O Lt. Nakuleswar Dutta Ward No. 3, North Lakhimpur Town, P.S. North Lakhimpur, Dist. Lakhimpur, Assam. …Respondents.

BEFORE THE HON’BLE MR JUSTICE HRISHIKESH ROY

For the petitioners : Mr. P.K. Goswami, Mr. A. Barman. … Advocates. For the respondent No.2 : Ms. B. Talukdar .… G.A. For the respondent No.3 : Mr. B.D. Goswami, …Advocate.

Date of hearing and Judgment : 19.11.2015.

JUDGMENT AND ORDER

Heard Mr. P.K. Goswami, the learned Counsel appearing for the petitioners. The contesting respondent No.3 is represented by the learned Advocate B.D. Goswami. The Addl. D.C. (Revenue), North Lakhimpur is represented by the Government Advocate Mr. B. Talukdar.

2. These two cases arise out of single litigation relating to partition of family property and since common arguments are advanced, the following judgment will dispose of both the cases.

3. The litigation relates to the property of Late Nakuleswar Dutta, who died on 19.7.1979 leaving behind 2 sons Gunindra Nath Dutta and Munindra Nath Dutta. The petitioners are the widow and sons of the elder brother Gunindra Nath Dutta and the respondent No.3 (Munindra Nath Dutta) is the younger son of Late Nakuleswar Dutta.

4. Following the death of their father, the ancestral property was inherited by the two sons and their names were mutated on 8.6.1992 in the Mutation Case Nos. 14/92-93 and 15/92-93. The elder son Gunindra Nath Dutta died on 25.2.1997 leaving behind his widow Labanya Dutta and four sons as the

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legal heirs (petitioners).

5. After the death of his elder brother, Munindra Nath Dutta (respondent No.3) approached his sister-in-law and nephews for mutual partition of the family land but it could not be done for want of co-operation. Eventually on 27.3.2000, Munindra Nath Dutta filed two partition cases in respect of separate parcel of land inherited from his father and those cases were registered as the Partition Case Nos.85/99-2000 and 88/99-2000 respectively. But since after the death of the recorded Pattadar Gunindra Nath Dutta, the legal heirs’ names were not mutated in the Revenue Record, the notice in the partition cases was sent in the name of the recorded Pattadar (Gunindra Nath Dutta). After the said notice was served on the family members, the elder son of the deceased Rajkumar Dutta submitted a petition on 20.6.2000 before the Addl. D.C. Revenue informing about the death of his father and applied for dismissal of the partition cases. But since the legal heirs did not cooperate with the applicant for substitution of the legal heirs of the deceased Pattadar, the partition was allowed on 3.3.2003 by the Addl. D.C., North Lakhimpur. For the record, it may be noted that the Partition Case No.85/99-2000 was in respect of 18 Bighas 4 Kathas 16 Lechas land and the respondent No.3 received 8 Bighas 2 Kathas 11 Lechas of land whereas the petitioners received 10 Bighas 2 Kathas 5 Lechas of land. Likewise in the Partition Case No. 88/99-2000, the share of the respondent No.3, after partition was 4 Bighas 2 Kathas 14 Lechas and the share of the petitioners was 7 Bighas 3 Lechas. Thus for the entire ancestral property measuring 30 Bighas 2 Kathas 13 Lechas, the petitioners share was 18 Bighas 4 Kathas 16 Lechas whereas the applicant (respondent No.3) received a lesser share of 11 Bighas 2 Kathas 17 Lechas of land.

6. Long after the property was divided on 3.3.2003, the petitioners filed two Appeals under Section 117 of the Assam Land Revenue Regulation 1886 to challenge the Addl. D.C’s order dated 3.3.2003. In this case, the learned Board observed that partition should not have been allowed without impleadment of the legal heirs of the deceased Pattadar Gunindra Nath Dutta. Thus both the partition cases were remanded back for fresh disposal after impleadment of the

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legal heirs of Gunindra Nath Dutta in the two partition cases.

7. Following the remand order, notices were issued to the legal heirs of Late Gunindra Nath Dutta and the L.C.R. shows that these notices were received by Rajkumar Dutta (petitioner No.2) on behalf of all the legal heirs. In fact objection was filed by the petitioners in both the cases. However despite the written objection, the petitioners failed to attend the hearing of the partition cases and eventually noticing the want of participation of the objectors, the Addl. D.C. considered the application of Munindra Nath Dutta and on the basis of the available record including the report given by the Circle Officer, the partition in both cases to the extent indicated earlier, was granted by the Addl. D.C. on 16.5.2007. Consequential direction was also issued for preparation of separate Patta in respect of the divided family land.

8. Aggrieved by the order dated 16.5.2007, the petitioners again filed separate appeals before the Assam Board of Revenue by contending that partition was allowed without affording any hearing to the appellants. But the Board noticed that the appellants had entered appearance and had also filed objection but chose not to participate in the proceeding before the Addl. D.C. Accordingly the petitioners’ appeal against the partition order was dismissed through the impugned judgment dated 6.12.2010 by the Revenue Board.

9. Assailing the legality of the partition order passed in favour of the respondent No.3, Mr. P.K. Goswami, the learned Counsel submits that the petitioners were unaware of the order passed by the Addl. D.C. on 16.5.2007 and accordingly it is argued that the petitioners were denied the opportunity of hearing before the family property was divided.

10. On the other hand, Mr. B.D. Goswami, the learned Counsel appearing for the respondent No.3 submits that the petitioners can’t complain of denial of opportunity as it is they, who choose not to participate in the proceeding before the Addl. D.C. and accordingly they can’t now take advantage of the ex parte order passed against them. On merit, the respondent No.3 submits that by way of partition, the petitioners have received 17 Bighas 2

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Kathas 5 Lechas of land as compared to 13 Bighas 8 Lechas of land apportioned to the respondent No.3. But this unequal division is accepted without objection by the respondent No.3, as some residential house was constructed by his deceased bother Gunindra Nath Dutta and equal division would have meant the houses falling in the share of the respondent No.3. Thus the apportionment of the ancestral land between the two legal heirs of Late Nakuleswar Dutta is contended to be a just exercise where larger share is given to the family of the deceased elder brother.

11. The L.C.R. of the both partition cases are available and they disclose that notice was received by Rajkumar Dutta on behalf of his brothers and mother. Thereafter common objection was also filed by Rajkumar Dutta on behalf of all the successors of Late Gunindra Nath Dutta and although the legal heirs had full knowledge of the proceeding, they chose not to contest the partition claim. In such circumstances, the decision was given in favour of the applicant, on the basis of the available records and the report of the Circle Officer.

12. It was noted by the learned Revenue Board itself that the petitioners claim of denial of hearing is not true and upon due perusal of the LCRs, I concur with the view taken by the Board for rejecting the petitioners’ appeal. In my perception, the partition was ordered through due process and it was a just division of the family property with larger share going to the legal heirs of the elder brother Gunindra Nath Dutta. Therefore I find no infirmity on any count with granting of partition to the respondent No.3 in the Partition Case Nos.85/99-2000 and the 88/99-2000 respectively. Thus merit is not found in these cases and hence they are dismissed. Consequently the Revenue Authorities are directed to correct the land records and issue separate Pattas, on the basis of the order passed by the Addl. DC. On 16.5.2007. It is ordered accordingly.

JUDGE

Datta.

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