JUDGMENT :

1. Heard Mr. S.K. Goswami, learned counsel for the petitioners. Also heard Ms. M. Barman, learned Govt. Advocate appearing for the respondent no.2. None appears on call for the respondent nos.1 and 3 in spite of the note given in Supplementary Cause List for 03.01.2023 that this matter of part-II hearing list would be taken up for hearing.

2. The respondent no.3 is the Assam Board of Revenue, whose order is assailed in the present writ petition. Therefore, the respondent no.3, being a formal party, has no interest in the litigation, the non-appearance of the respondent no.3 is of no consequence.

3. By filing this writ petition under Article 226 read with Article 227 of the Constitution of India, the petitioner has assailed the order dated 02.07.2012 passed by the learned Chairman, Assam Board of Revenue at Guwahati in Revenue Appeal Nos. 146RA(K)/2009 and 85RA(K)/2011, arising out of Tenancy Case No. 1/2000.

4. The case of the petitioners is that they were the owner and title holder of land measuring 4 Bigha-3 Katha-12 Lecha covered by Dag No. 768 of K.P. Patta No. 172 of Village- Bankakata, Mouza Chhaygaon Pantan, in the district of Kamrup, Assam. The said land was inherited from their predecessor-in-interest, namely, Late Samir Ali.

5. On death of their predecessor-in-interest, the names of the petitioners were entered in the record of land by way of inheritance.

6. The father of the respondent no.1, namely, Amrit Kalita (since deceased), was a tenant in respect of the said land by virtue of entry of his name in Khatian No. 33. On his death, the name of the respondent no.1, namely, Prafulla Kalita was recorded as a tenant under the petitioners in respect of the said land. The respondent no.1 had filed Tenancy Case No. 1/2000 before the Deputy Commissioner, Kamrup under section 23 of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 claiming ownership over the said land. The petitioners, on receipt of notice of the said case, had submitted their objection raising several points. The narration of those points is not material for the purpose of the order. In connection with the said proceedings, the respondents had examined 3 (three) witnesses, namely, Prafulla Kalita, Suren Kalita and Shraddha Kalita, who were cross-examined and discharged.

7. The learned counsel for the petitioners has submitted that the petitioners’ side had also examined 3 (three) witnesses, namely, Ahmed Hussain, Giridhar Kalita and Samnur Ali.

8. As per the memo of appeal filed before the Assam Board of Revenue, in paragraph 9, a statement is made by the petitioners to the effect that 2 (two) witnesses were cross-examined, but the cross-examination of the third witness, namely, Samnur Ali was not completed and the learned Addl. Deputy Commissioner did not allow the petitioners to adduce complete evidence on their behalf. The learned Addl. Deputy Commissioner, by order dated 02.07.2009, had disposed of the proceedings of Tenancy Case No. 1/2000 by passing the following order:

“The first party is present and filed hazira. The second party is not seen present. This case has been registered on the basis of an application filed under Section 23 of the Assam (Temporarily Settled Areas) Tenancy. Act, 1972 by Sri Prafulla Kalita, son of Late Amit Kalita whereby he has prayed for ownership right in respect of land measuring 4 Bighas 3 Kathas 12 Lechas of Dag No.768 of Village- Bankakata, Mouza-Chhaygaon Pantan.

Notice has been issued. The process server has submitted his report after service of notice upon the pattadars. Seen the report of the Circle Officer. The first party/ petitioner has been occupying the aforesaid land by cultivating over the same. As the predecessor of the tenant was occupying the disputed land as tenant hence the petitioner Sri Prafulla Kalita, son of Late Amit Kalita, is considered to be eligible to get ownership right as a listed tenant.

That further order will be passed if the tenant deposits 50 times the land revenue in respect