MT. DUKHUNI BIBI AND ANR. Vs. KHALILOOR RAHMAN

JUDGEMENT

(1.) THIS is an appeal from the order of the Settlement Officer, dated 11 -5 -51 in Dispute Case No. 179 (ka) relating to old patta No. 148 and new patta No. 337 in the town of Gauhati in connexion with the recent Town Settlement. This -appeal is on behalf of two persons - -Mt. Dukhuni Bibi and Mt. Hedayatanessa whose objections were -overruled by the learned Settlement Officer. Mt. Hedayatannessa's claim was with respect to 14 lechas of land in Dag No. 937/938 and Mt. Dukhuni Bibi's claim was with respect to 1K 4L in some other dags covered by the same patta basing their claims on alleged gifts from Seikh Sukhial and Mt. Sarubandi.

(2.) IT does not appear from the order of the learned Settlement Officer that any witness was examined with regard to the possession of the disputed plots but the parties filed documents showing their respective title and claim to possession. The original patta stood in the name of Khaliloor Rahman and Abubakar Ayaz who were represented as second party in the aforesaid dispute. The learned Settlement Officer, as it appears, heard the parties and perused the documents but refused to go into the merits of the objections raised on the ground that there were earlier mutation cases - -Mutation Case No. 6039, 610, and 611 of 1941 -42 which were decided against the first party and the third party. On this basis he refused to consider the present possession of the parties and held that the orders in the mutation cases decided in 1941 -42 should stand. Mr. Medhi appearing for the appellants has contended that the original entries in the record, of rights are not final for the purpose of resettlement. The resettlement is with a view to make the records up to date and it vouches an enquiry under Section 40 of the Assam Land and Revenue Regulation by the Settlement Officer who shall frame for each estate a record -of -rights in the prescribed manner. He relied for the purpose of his argument on Section 41 of the Assam Land and Revenue Regulation which says that

(3.) MR . Medhi's contention is that it has been found by the Civil Court in some litigation between the parties or their predecessor -in -interest that the first party and third party or their predecessor -in -interest have been in adverse possession with respect to the lands for a period exceeding twelve years and they have acquired a proprietor's title by adverse possession thereto of which the learned Settlement Officer should have taken, note and ordered mutation in their favour on the basis of their respective title and possession.