1. Heard Mr. B.D. Das, the learned Sr. counsel appearing for the petitioners. The private respondent Nos. 4 to 10 are represented by the learned counsel Mr. P.K. Deka. The Deputy Commissioner and the Addl. Deputy Commissioner, Kamrup (M) (respondent Nos. 2 and 3) are represented by Mr. M. Khataniar, the learned Govt. advocate.

2. The matter pertains to tenancy rights claimed under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (hereinafter referred to as the “Tenancy Act”). The petitioners claim that their forefather Abdul Bari was the recognized khatiandar/occupancy tenant in respect of the landed property owned originally by late Abdul Haque. The successors of the khatiandar Abdul Bari are the petitioners in this case and this group is described hereinafter as the “2nd khatiandars”. The respondent Nos. 4, 5 and 6 are the successors of the land owner late Abdul Haque and hereinafter these litigants are described as the “land owner”. The respondent Nos. 6 to 10 are the successors of the original khatiandar Amzed Ali and hereinafter this group is described as the “1st khatiandar”.

3. The Khatian No. 11 of village Sonapur (Annexure-1) shows the 2nd khatiandar Abdul Bari to be in continuous possession of the land and the tenancy right of Abdul Bari was formally recognized in the revenue records on 31.03.1975. On the basis of continuous possession and his recognition as a occupancy tenant, the legal heirs of Abdul Bari filed the Tenancy Case No. 15 of 2002 under Section 23 of the Tenancy Act, where the 2nd khatiandars claimed ownership and intermediary rights over the lands under their possession. This application was granted by the Addl. D.C., Kamrup (M) through his order dated 02.07.2004 (Annexure-4). In his order, the possessory right for 6 lechas of land claimed by the successors of the 1st khatiandar Amzed Ali, was recognized and thus the Addl. D.C.’s order excluded 6 lechas of land covered by Dag No. 537, under possession of the 1st khatiandar. The granting of the application of the 2nd khatiandar resulted in ownership right in respect of 10 bighas 3 kathas 5 lechas land owned by the land owner.

4. After learning of the above order passed on 02.07.2004 in favour of the 2nd khatiandar, a joint objection was filed by both the land owner and the 1st khatiandar. However, their objection was rejected by the Addl. D.C. through a cryptic order on 18.05.2005. He considered the Circle Officer’s report dated 03.12.2002 which indicated that the name of the 2nd khatiandar was incorporated in place of the 1st khatiandar and that Abdul Bari has been granted final Khatian No. 8 in 1978. Consequent upon this order in the Tenancy Case No. 15 of 2002, ownership/intermediary rights is conferred to the 2nd khatiandar under Section 23 of the Tenancy Act and necessary declaration was then made in Form No.7 in the Assam Gazette on 26.05.2005 (Annexure-8).

5. The aggrieved land owner then filed the Case No. 138RA(K)/2005 before the Assam Board of Revenue to challenge the Addl. D.C.’s order in the Tenancy Case No. 15 of 2002. It was pleaded therein that the land owner Abdul Haque died on 04.08.1992 and the successors never received any notice in the Tenancy Case No. 15 of 2002. Moreover, the claim of the 2nd khatiandar was denied by the land owner as they recognized only the 1st khatiandar late Amzed Ali, as their occupancy tenant.

6. The learned Revenue Board noted that the notice addressed to the land owner Abdul Haque was received by Jahid Hussain, Hamid Ali and Ashrif Ahmed. But taking note of the fact that the landowner died in the year 1992 and notice was addressed to the dead pattadar, the declaration given by the Addl. D.C. in favour of the 2nd khatiandar was found to be in breach of the procedure prescribed by Rule 10 of the Assam (Temporarily Settled Areas) Tenancy Rules, 1972 (hereinafter referred to as the “Tenancy Rules”) and on that basis, the conferment of rights under Section 23 of the Tenancy Act was found to be ille