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.
3. 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
'entries in the record made under Section 40 shall be founded on the basis of actual possession, and all disputes regarding such entries, whether taken up by the Settlement-Officer of his own motion or on the application of a party concerned, shall be investigated and decided by him on that basis and all persons not in possession, but claiming the right to be so, shall be referred by him to the proper Court.'
4. 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.
5. Mr. Chaudhuri appearing on behalf of the respondent has urged that the previous orders in the mutation cases are still good as between the parties and the Settlement Officer is not required to revise them for the purpose of the present settlement. I cannot say that this argument is without force were there no pronouncements from the Civil Courts as to the rights of the contending parties--and more so about the nature of their possession. Section 41 of the Assam Land and Revenue Regulation makes it obligatory on the part of the Settlement Officer to go into the question of possession if disputed. Under these circumstances, I am not satisfied with the order passed by the learned Settlement Officer as he has not considered the claims of respective parties as to actual possession.
6. Mr. Chaudhuri has further contended that possession is not the only criterion for allowing mutation in the names of the parties. I quite see the force of this contention but it cannot be denied that possession is one of the grounds on which mutation can be allowed subject to there being a prima facie title. The adverse possession for twelve years or more gives maturity to the title of even a trespasser and if any of the parties or their predecessor-in-interest had been in possession extending for twelve years and adversely he can legitimately claim to have acquired title to the land. It is, therefore, necessary that the Settlement Officer should not only find as to what area is actually in possession of the contending parties namely the first party and the third party, but also for what length of time and what was the character of their possession. It is on the basis of the title and possession that mutation can be allowed and not otherwise.
7. I, therefore, consider it a fit matter that should go back to the Settlement Officer for rehearing of the objections raised by the parties, after giving them facilities to produce such evidence as they might consider necessary and then dispose of the matter according to law in the light of the directions given above. The party who is not found to be in possession but claims only right to possession should be referred to the Civil Court as provided under Section 41 of the Assam Land and Revenue Regulation.
8. The result is that the appeal is allowed but I make no order as to costs.