1. These are two analogous appeals from an order of the learned Addl. Deputy Commissioner, Kamrup dated 24-11-1950 whereby he affirmed the orders of the learned Sub-Deputy Collector of Kamalpur Circle, dated 18-2-50 covering three cases i.e. Case Nos. N. K. 80 of 1948-49, N. K. 104 of 1948-49, and N. K. 1 of 1949-50. These three revenue cases were heard together by the learned S. D. C. and were covered by one judgment. Rev. Appeal No. 21 of 1951 relates to Mut. Case No. 80/48-49 and Rev. Appeal No. 22 of 1951 relates to Mut. Case No. 1 of 1949-50.
2. The Mutation case No. 80 of 1948-49 and Mutation Case No. 1 of 1949-50 were filed by two persons Lohit Chandra Goswami and Gauri Kanta Goswami, who are the appellants in the appeals before me and Mut. Case No. 104 of 1948-49 was filed by one Syed Amir Ali who has not filed any appeal against the order of the learned Additional Deputy Commissioner.
3. All these three Mutation Cases relate to N. K. Patta No. 1/52 of village Patrapur, Mouza Karara, covering a total area of about 80 bighas. Lohit and Gauri by right of inheritance had acquired one-twelfth share of that patta land and their names were registered with respect thereto. They claimed to have purchased 9 bighas of land by a registered sale deed dated 19-2-49 from Kabin and Purna--two sons of Anandi Bhandar Kayastha who was one of the Pattadars of N. K. Patta No. 1/152 and by a subsequent sale deed dated 30-5-1949, which was also registered, these two persons Lohit and Gauri purchased another 9 bighas of land from the other two sons of Anandi Bhandar Kayastha viz., Dibakar and Iswar. It is found by the learned Sub-Deputy Collector that Nabin and Purna who got their names mutated in place of their deceased father Anandi, had gold on 2-5-1949 about 9 bighas of land to Syed Amir Ali. According to the learned Sub-Deputy Collector, the shares of each of the sons of Anandi Bhandar Kayastha were not ascertained but Anandi presumably was entitled to one-fourth of the patta land i.e. about twenty bighas. Nabin and Purna having their names mutated in place of their father, they could be presumed to be the ostensible owners with respect to their father's share of the land and they having sold about 9 bighas on 2-5-1949 to Amir Ali after they had disposed of 9 bighas in favour of Lohit and Gauri, the subsisting interest of Anandi's heirs was limited only to another 2 bighas which Dibakar and Iswar could sell. In this view he holds that Lohit & Gauri had acquired title by virtue of these two purchases to an area of 11 bighas of land covered by the disputed patta.
4. The objections to mutation of Lohit end Gauri were filed by Rongdeb Goswami and Syed Amir Ali. Syed Amir Ali claimed interest only with respect to the area of land he purchased from Nabin and Purna and he could have no objection to the rest of the lands claimed by Lohit and Gauri being mutated in their names. His objection, therefore, does not relate to these 11 bighas as has been found by the learned Sub-Deputy Collector, to which the present appellants acquired title and interest. The other objection is on behalf of Rongdeb Goswami who claims to be in possession of as portion of the patta land on the basis of a Baina-patra executed in favour of his mother by Nabin and Purna. No document however, has been produced in support of this claim. He seeks to resist the prayer for mutation of the two appellants on the plea that they have got no actual possession on the basis of the purchases made by them. It is, however, admitted that Lohit and Gauri had Ezmali possession with respect to the patta land to the extent of their own shares & there has been no partition of the patta lands among the co-sharers. The learned Sub-Deputy Collector is not satisfied that there was actual delivery of possession on the basis of the purchases made by Lohit and Gauri by the two registered sale deeds and he gives credit to the version of Rongdeb who claims to have possessed the land adversely for a period of about 20 years.
5. Mr. Sen appearing for the respondent Rongdeb Goswami has urged that it is essential with a view to get mutation under Section 50 of the Assam Land and Revenue Regulation that the persons applying for mutation should not only prove their title either by transfer or inheritance but should also establish their possession with respect to the land. It appears from the judgment of the Sub-Deputy Collector that the petitioners succeeded in proving their possession with respect to the shares which they acquired by right of inheritance from their father. That implies that they were in possession of the disputed patta land no matter to what extent. It is an accepted principle that an 'Ezmaii' patta-holder need not prove his possession with respect to each of the dags or to the full extent of his share for the purpose of recognition of his title or possession but anybody claiming to oust him must establish his (ouster's) exclusive possession for the statutory period. In this case Rongdeb is not a Pattadar and if he claims to have held the land adversely for more than the statutory period, it is for him to establish that in a proper court of law and his questioning of the possession of any of the rightful Pattadars cannot be accepted.
6. On the above reasonings I allow the 2 mutation petitions (covered by Mutation cases Nos. 80 of 1948-49 and 1 of 1949-50) filed by Lohit and Gauri to the extent of 11 bighas without any prejudice to their title on the basis of the purchases.
7. The result is that the Rev. Appeal No. 21/
51 is allowed in full and Rev. Appeal No. 22/51
is allowed only to the extent of two bighas.
Orders passed by the lower Courts are set aside.
This judgment will cover both the Revenue
Appeals Nos. 21 and 22 of 1951.