Prasanta Kumar Deka, J. - Heard Mr. BC Das, learned Senior Counsel assisted by Ms. I Das, learned counsel for the petitioner. Also heard Ms. K Phukan, learned Government Advocate for the State respondents; Mr. BJ Talukdar, learned Standing Counsel for the Revenue Department and Mr. N Upadhyay, learned Standing Counsel for the Irrigation Department.

2. The predecessor-in-interest of the petitioner had several plots of land under various khatian and dag numbers pertaining to Patta No. 52 in Hatsingimari village of Mankachar Circle. During resettlement operation in the year 1980 onwards, the respondent Revenue department had omitted recording an area of land measuring 5 B 0K 13Ls in the name of the predecessor-in-interest of the petitioner. Surprisingly, the respondent authorities issued an eviction notice dated 26.04.1993 to the petitioner and his brothers to vacate a plot of land measuring 1B 1K 5Ls out of the aforesaid land measuring 5B 0K 13Ls. Challenging the aforesaid notice dated 26.04.1993, the petitioner along with his brother filed Title Suit No. 104/1993 in the court of learned Munsiff No. 1 at Dhubri seeking the relief for declaration of right, title and interest, correction of records and for permanent injunction. In the said suit the State of Assam represented by the Deputy Commissioner, Dhubri and the Sub-Divisional Officer (Civil), South Salmara, Mankachar Sub-Division, Hatsingimari were the defendants. The learned Munsiff No. 1 vide judgment and decree dated 14.02.1995 decreed the suit in favour of the petitioner and his brother. The petitioner had taken steps and put the said decree into execution by filing Title Execution Case No. 18/1996 which was disposed of on 14.03.1997 by satisfying the decree in favour of the petitioner.

3. The respondent Irrigation Department encroached and occupied a plot of land measuring 2B 1K 5L out of the decreetal land measuring 5B 0K 13L covered by Khatian No. 9, Dag No. 51 (old)/ 166 (new) pertaining to Patta No. 52 belonging to the petitioner. The petitioner had taken up the matter with the respondents and also served a pleader notice dated 20.01.2009 followed by the notice dated 28.02.2010 and 08.03.2010 calling upon the respondents either to requisition the plot of land and pay appropriate compensation or to hand over the possession thereof to the petitioner. As nothing has been done, the respondent Irrigation Department started undertaking construction in the said plot of land. Accordingly, this writ petition is filed for the following reliefs:-

"In the premises aforesaid, it is therefore respectfully prayed that your Lordships would be graciously pleased to admit this Application, call for the records and issue Rule calling upon the respondents to show cause as to why-

(a) a writ in the nature of mandamus shall not be issued directing and/or commanding the respondent revenue authorities to carry out the correction of the records of right in respect of the decreed land of the petitioners predecessor-in-interest measuring 5B-0K-13L of Hatsingimari village of Mankachar Circle;

(b) a further writ of like nature directing and/or commanding the respondent irrigation department to deliver unto the petitioner the vacant possession of the land measuring 2B-1K-5L covered by Khatian No. 9 and Dag No. 51 and new Dag No. 166 pertaining to Patta No. 52 (now shown as Khas Land under Dag No. 125 and 135 under Khas Khatian No. 1) of Hatsingimari village under Mankachar Circle of Dhubri District;

-And/or-

(c) Alternatively, why a further direction shall not be issued to the respondent authorities to requisition the aforesaid plot of land measuring 2B-1K-5L covered by Khatian No. 9 and Dag No. 51 and New Dag No. 166 pertaining to Patta No. 52 (now shown as Khas Land under Dag No. 125 and 135 under Khas Khatian No. 1) of Hatsingimari village under Mankachar Circle of Dhubri District and to pay adequate compensation along with interest thereon to the petitioner;

AND

Cause or causes being shown, if any, and after hearing the parties and on perusal of the records your Lordships may be pleased to make the Rule absolute giving full and complete relief to the petitioner and/or to pass such other or further appropriate order(s) as Your Lordships may deem fit and proper;

AND

Pending disposal of the Rule Your Lordship be further pleased to restrain the respondent Irrigation department from carrying out construction over the aforesaid plot of land measuring 2B-1K-5L covered by Khatian No. 9 and Dag No. 51 and new Dag No. 166 pertaining to Patta No. 52 (now shown as Khas Land under Dag No. 125 and 135 under Khas Khatian No. 1) of Hatsingimari village under Mankachar Circle of Dhubri District for the ends of justice and/or pass such further or other order(s) as Your Lordships would deem fit and proper.

And for this act of kindness the petitioner as in duty bound shall ever pray."

4. Upon motion vide order dated 11.03.2011, the respondent Irrigation department was directed not to carry out any construction over the plot of land measuring 2B 1K 5L covered by Khatian No. 9 and Dag No. 51 (old)/ 166 (new) of KP Patta No. 52 which has been recorded as Khas land under Dag Nos. 135 and 137 under Khas Khatian No. 1 of Hatsingimari village under Mankachar Circle of Dhubri district.

5. The respondent No. 1, the Executive Engineer, Hatsingimari Division, Irrigation Department, filed the affidavit-in-opposition denying the fact of encroachment by the said Irrigation Department. It is stated that by a communication dated 13.02.1991 issued by the Additional Deputy Commissioner on behalf of the Collector, Dhubri land measuring 2K 4Ls belonging to the father of the petitioner Late Rahmatullah Sk. sought to be acquisitioned for an irrigation scheme and later on the said proposal did not materialise and the said information was informed to the petitioner vide letter dated 13.02.1991 issued from the office of the Deputy Commissioner, Dhubri and the same was received by the petitioner himself. The process server delivered the said letter to the petitioner on 28.03.1991 and reported the same back to the office on 01.04.1991. For the said reason the petitioner cannot claim any compensation as no land belonging to the father of the petitioner nor his family or himself was acquisitioned. The Sub-Divisional Officer (Civil) of Sought Salmara, Mankachar Sub-Divison at Hatsingimari by his Order No. HSM/1/85/8 dated 08.08.1986 allotted land in Dag Nos. 135,137 and 138 which are government khas land. The land was allotted in the name of the Irrigation Department and thereafter no further land was taken by the department. The title suit was filed in the year 1993 without impleading the Irrigation Department and as such the decree is not binding upon the officials of the Irrigation Department nor there was any execution proceeding against the department.

6. The Assistant Settlement Officer of Mankachar Revenue Circle submitted a report on 16.09.2009 to the Sub-Divisional Officer (Civil), Hatsingimari stating that Dag Nos. 135,137 and 138 consists of several plots of land measuring 8B 3K 15Ls etc which are government khas land and the office of the Irrigation department was set up on the government land.

7. The said Sub-Division, South Salmara-Mankachar was declared to be the district with its Headquarter at Hatsingimari and thereafter the learned Senior Counsel for the petitioner submitted that after the creation of the district the office of the Superintendent of Police, South Salmara, Mankachar is occupying the building in Dag No. 135 under Mankachar Revenue Circle which was constructed by the Irrigation Department at Hatsingimari. The office was functional in the said premises since inception of South Salmara Police District since 01.01.2015 till date. Considering the said submission the Deputy Commissioner, South Salmara-Mankachar, district and the Superintendent of Police, South Salmara-Mankachar were impleaded as the respondent nos. 12 & 13. Ms. Phukan as per the instruction vide letter dated 10.08.2018 issued by the Superintendent of Police, the respondent no. 13 admitted the fact of possession of the building constructed by Irrigation Department since 01.01.2015.

8. Mr. Das, learned Senior Counsel for the petitioner, submits that the land upon which the right, title and interest of the petitioner was declared along with his brother admittedly is under occupation initially under the Irrigation department and later on under the respondent no. 13, the Superintendent of Police. If at all the Government requires the land which is already under its possession the Government can very well requisition the same and pay the monthly rent to the petitioner. Having not done so for the past years, that itself is sufficient for a direction to the State to compensate and/or requisition the said land. The learned counsel for the respondents objected to the said submission on the ground that the land upon which the respondent no. 13 is possessing is a Government khas land and under no circumstances, the said land falls within the decreetal land. The petitioner is not entitled for any relief as sought for.

9. I have given due consideration to the submissions of the learned counsel appearing for the parties. This writ petition is pending since the year 2011 without much progress. Admittedly, the petitioner along with his brother filed Title Suit No. 104/1993 against the State of Assam represented through the Deputy Commissioner, Dhubri seeking the relief for declaration, correction of records of rights and for permanent injunction. The suit was decreed as follows:-

"This suit coming on this 14.2.95 day for final disposal before Shri J.K. Pramanik, AJS, Munsiff No. 1, Dhubri in the presence of Mr. M. Seikh, Adv. for the plaintiff and of Mr. A. Karim, Adv. for the defendant It is ordered and decreed that the suit is decreed on contest declaring the plaintiffs right, title, interest and confirming the possession of the plaintiffs over the suit land. Also the suit is decreed for permanent injunction restraining the defendants from evicting the plaintiffs from the land measuring 1B-1K-5L out of the suit land along with a direction to the defendants to correct the records of right of the suit land and issue patta to the plaintiffs. Schedule of the land In the village Hatsingimari under circle Mankachar in Dhubri District land measuring 2 katha 7 lechas for out of old khatian no. 23 and 43 and land measuring 4 bighas 3 kathas 6 lessas for out of old dag no. 51 and khatian no. 9 total land measuring 5 bighas 13 lessas now recorded in khas khatian in dag no. 125 and 135 of village, Hatsingimari. Given under my hand and the seal of this court this 14th day of February,1995."

10. During the course of the argument Mr. Das, the learned Senior Counsel, submits that there is an encroachment over the decreetal land. The decree which was passed in favour of the petitioner along with other brother was not challenged by the defendant/ State of Assam allowing the same to attain its finality. A decree of permanent injunction restraining the defendants from evicting the petitioner from land measuring 1B 1K 5Ls out of the suit land which is 5B 0K 13Ls, is already in existence binding the State Government. Accordingly, the petitioner has the remedy in the Executing court by filing appropriate application under section 151 of the CPC if there is any violation of the decree of permanent injunction. In this respect it would be apt to rely on the decision passed by this Honble High Court in Aainuddin Dewan vs. Haran Ali & others, (2000) 2 GauLT 121. The relevant observation of this court is reproduced hereinbelow:-

"(7) I am in respectful agreement with the decisions quoted above. It is the duty and responsibility of the court to see that an order of injunction passed by it is meticulously implemented/followed, otherwise an order of injunction will be a mere paper tiger without having the force to bite. That is not the purpose for granting an order of injunction. An order of injunction creates certain rights and liabilities between the parties and that order of injunction must be enforced by the court by passing necessary order. That is also necessary to shorten the litigation inasmuch as if that is not done, by executing a decree for perpetual injunction, a person may be put in possession on a particular date and on the next date, by using muscle power the defendant may again take back the possession of the land. It cannot be the object or the purpose of law. In such a situation, a person so dispossessed is not to go again for a fresh round of litigation to establish his right, and to get the order for recovery of possession. He can approach the court by filing necessary application u/s 151 of CPC to obtain an order for restoration of possession and the court in such a situation can always give back/restore the possession."

11. In this writ petition, the dispute is in respect of the identity of the land inasmuch as the petitioner is claiming that the land whereon initially Irrigation department was possessing and subsequently by the respondent no. 13 as the land within the decretal land. But on the face of total denial by the State if at all the said land falls within the decretal land then necessary order(s) may be passed by the Executing court on the satisfaction of the evidence and other relevant law. Accordingly, this writ petition is disposed of by giving liberty to the petitioner to move the appropriate forum as observed hereinabove and the writ petition stands disposed of.

12. Any observation made in this writ petition by this court shall not influence the Executing court while deciding any application filed by the petitioner in terms of the decree referred hereinabove.

The Executing court shall pass appropriate order on merit of the claim of the petitioner. No costs.

Final Result : Disposed