K. Lahiri J.
1. This is as application-under Article 226 of the Constitution directed against an order of the Assam Board Revenue dated 6.4.76 in Revenue Appeal No. 20/1974.
2. The bone of contention is 8 B, 1 Lecha of land in (SIC) No. 38(SIC)/361 and 362 (new) of Digboi town, which stood in the name of Respondent No. 4. Sarafudin. and one Amir Meah. Rangnlal Khemani father of the Petitioner, (SIC) two registered deeds purporting to convey the land in his favour from Blkhow Miab father of Respondent No. (SIC) having Obtained these deeds, he procured field mutation Subsequently, there was a resettlement and during the course there of in 1935, the Settlement Officer entered the to the land and for recovery of possession or confirmation of possession. However that suit was dismissed. Sarafudin and Amir Meah moved Revenue Officer for correction of the revenue records and for sub (SIC) of their names (SIC) of Rangalal The prayer was however turned down (SIC) the score it was nothing but an application for correction of records prepared by the Settlement Officer and it was not within the competence of the Deputy (SIC) to correct the records. Against that order Respondent No. 4 Sarafuddin and Amir Meah preferred an appeal to this High Court. The citation of the decision is (SIC) 26 of 1948 We Sarafuddin and Anr. v. (SIC) disposed an 9.12.1948 it may be stated that at all relevant time this Court exercised the appellate jurisdiction under the Assam Land and Revenue Regulation 1886. that power has since been transferred to the Board of revenue the matter was heard and the appeal was dismissed (SIC) Lodge, C.J. on 9.12.48 by a speaking order We are (SIC) to extract the relevant findings:
I agree with the courts below that mere substitution of the names of the present Appellants (meaning Sarafuddin and one Amir Meah) would not be bringing the records into conformity With the decision of the Civil Courts and that for that purpose, the result of a civil suit properly instituted by the present Appellant must be awaited. I also agree that the application of the present Appellants was an application to correct the entries made in the settlement records, and as such an application has to be made within the period of limitation prescribed in the statute, and as this application has not been made within that period, this appeal ought to be dismissed.
I therefore order that this appeal be dismissed, the bracketed portion is ours.
(Emphasis added)
3. It appears clear from the conclusive finding of this (SIC) as on 9.12.48 that the title of Respondent 4. Sarafuddin and one Amir Meah was clouded wherefore this Court had to give a clear direction that correction of the record could be possible only after a favourable result in a Civil proceeding properly instituted by the present Respondent Sarafuddin and another. The learned Chief Justice held In positive and affirmative manner that the Appellant (i.e., the present Respondent No. 4 and one Amir Meah) were to file a civil suit to get a declaration of title in their favour and there after they would be entitled to ask for correction of the revenue records. Now, it appears, that Respondent No. 4 Saraffuddin and one Amir Meah instead of obeying the direction of this Court in R.A. No. 26/48 (H.C.), found it convenient to wait for resettlement and then to make an Application for cancellation the name of the Petitioner and substitution of Respondent No. 4''s name instead. The a prayer was granted by the Assistant Settlement Officer and confirmed by the Revenue authorities including the learned Assam Board of Revenue.
4. The short point which falls for determination is whether the Revenue authorities can mutate the name of a person only on the basis of the finding that the applicant is in possession of the land. It is conceded by the learned Counsel for the parties that the condition precedents for getting a mutation or registration are two-fold. First, title to the land and secondly possession of the land. It appears clear from the findings of the Revenue Courts upto the learned Board of Revenue that Respondent No. 4 has been in possession all throughout. However, the question is whether he could obtain mutation in (SIC) of title Section 53 of the Assam land and Revenue Regulation is an enabling provision to grant mutation on fulllment of two conditions by the applicant. He must satisfy that his title is accompanied by possession. There is a line of decisions of this Court that no registration or mutation is permissible merely on the strength of possession. Title to the lands is an essential pre-requisite. In the instant case, the Revenue authorities including the Board of Revenue found on fact that Respondent No. 4 had possession. Under these circumstances, we cannot disturb the finding. However, the order upholding registration of the name of Respondent No. 4 is bad inasmuch as the Respondent No. 4 had no title, There is nothing on record to show that. Respondent No. 4 had any title to the land. There is no finding of the Board of Revenue and/or the Revenue authorities below that there was valid title declared by a Civil Court in favour of Respondent No. 4. Dealing with that question the learned Board of Revenue committed an error. It assumed that this Court while exercising appellate power in R.A. 26 of 1948 (HC) (supra) granted a licence to Respondent No. 4 to wait for the settlement operation and then to agitate his claim. To use the exact words of the Board of Revenue:
The Hon''ble High Court dismissed the appeal on the ground of limitation. But there was a direction to the present Respondent for filing a Civil Suit for correction of record. The Respondent did not file any civil suit. But apparently he waited till the resettlement operation
(Emphasis added)
5. It appears that the learned Board of Revenue considered the direction of this Court to Respondent No. 4 that he should file a civil suit as otiose. However, the finding is final and binding. The order to Respondent No. 4 was to file a civil suit to get his title declared, and thereafter to ask for correction of the records. No court or tribunal within the jurisdiction of this Court can unlaw the law made by this Court. It was ruled that the condition precedent to (SIC) or correction of the record by Respondent (SIC) civil suit the get his title declared No other (SIC) or (SIC) for obtaining "correction of the record" was pointed out by the High Court Therefor, the Revenue authorities and the Board of Revenue could not have by passed or circumvent the conclusive finding or direction of this Court to permit Respondent No. 4 to obtain correction of the records. The positive direction of this Court was to file a civil suit for correction of records" without complying with the order of this Court neither the Petitioner was competent to assort his claim for correction of record, nor could the Revenue authorities including the Board of Revenue had jurisdiction to correct the records or to confirm the order of correction. This Court was fully aware about the settle (SIC) operations undertaken periodically but. It did not observe that Respodent No. 4 would be entitled to correction of records during re-settlement operations, without removing the could of title which had been created by the Sale Deeds obtained by late Rangalal Khemani, father of the Petitioner from late Bikhow Miah. father of Respondent No. 4. We find from records that that of Petitioner''s fathers had clouded the, title of Respodent No. 4 where for this Court had to ask Respondent No. 4 and another Amir Meah. to institute a civil suit to clear the could and to get a clear declaration of title in respect of the land But Respondent No. 4 or the other man did, not take any such action. As such even today, in View of the decision of this Court in R.A. No. 26/48(HC), we can not but hold that the title of Respondent No. 4 remains clouded No civil action has been brought to gel any declaration of title in favour of Respondent No. 4. Therefore, we hold that the Revenue authorities and the Board of Revenue committed error of jurisdiction vested in it by law in upholding: the order of registration in favour, of Respondent No. 4, when admittedly be had no clear title. This apart, the Revenue authorities as well as the Board of Revenue acted contrary to the direction of this. Court in R.A No. 26/48(HC). The judgment is binding, on the parties, the Revenue authorities and the Board of Revenue, Therefore the impugned (SIC) of the Revenue authorities and the board of Revenue be quashed.
6. for the foregoing discussions, we old that the impugned order of the registration In favour of Respondent No. 4 as (SIC)as the confirmation of the order must be quashed, which hereby do.
7. The petition is allowed. The Rule is made absolute. However there will be no order us to costs.
