Subhadra Roy v. The Andaman And Nicobar Administration

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [ CIRCUIT BENCH AT PORT BLAIR] ** WPA/234/2021 Subhadra Roy

...Petitioner

Vs.

The Andaman and Nicobar Administration and others ... Respondents Mr. K. Vijay Kumar ... for the petitioner Mr. Sumit Karmakar, Advocate ... for the Administration September 20, 2021 [SR] Item No.8 Writ petitioner claims that the petitioner's husband Late Sreepada Roy was allotted land bearing Survey No. 236 and Survey No. 62, measuring an area of 0.11 Hects. and 2.27 Hects, situated at R.K. Pur Village, Little Andaman. During his life time he got married with the petitioner and subsequently again he married the private respondent as such both the petitioners and the private respondents are wife of Late Shreepada Roy and after his death the said land was mutated in the name of the petitioner and the private respondent vide Tehsildar, Little Andaman in R.C. No. 29/90.

It is further submitted that the petitioner in the year 2001 filed a Civil Suit being Title Suit No. 004 of 2001 for declaration that the petitioner alongwith the private respondent and other legal heirs have got title in respect of the subject land, the Learned Civil Judge Senior Division at Port Blair vide judgment dated 10.01.2007 decreed the said suit and thereby the petitioner's title has been declared by the Learned Civil Court. The private respondent filed a Title Suit being Title Suit No.

Learned Civil Judge Senior Division at Port Blair as such the petitioner was not aware of the suit filed by the private respondent. The petitioner applied for record of right and sketch map on 13.04.2021 pertaining to the land bearing Survey No. 62 and 236 and the petitioner received the record of right and sketch map and, after going through the record of right, the petitioner found that the name of the petitioner has been deleted from the record of right on the basis of the Deputy Commissioner, South Andaman order passed in R.C. No. 209/2018/DC(SA) and on the strength of the order issued by the learned Civil Judge Senior Division in Title Suit No. 193 of 2013. Thereafter, the petitioner applied for the certified copy of the judgement and decree passed in the Title Suit No.

193 of 2013 by the Civil Judge Senior Division at Port Blair and, after obtaining the same, the petitioner found that an ex-parte judgement has been passed in the said suit. The petitioner thereafter filed a Misc. Judicial case being case No. 14 of 2021 before the Learned Civil Judge Senior Division at Port Blair for setting aside the ex-parte judgement and decree dated 11.10.2017 and the said suit is pending for adjudication before the Learned Court.

The name of the petitioner from the record of right has been deleted by the Deputy Commissioner by invoking the provisions in terms of the Andaman and Nicobar Islands Land Revenue and Land Reforms Regulation, 1966 and the Deputy Commissioner in the said revenue proceedings did not give any notice to the petitioner and no opportunity of hearing was given to the petitioner only during April, 2021 when the petitioner applied for certified copy of the record of right and sketch map and when the petitioner received the same got the information that a revenue case has been initiated at the instance of the private respondent and in that revenue case the petitioner being necessary party but the Deputy Commissioner, South Andaman District did not serve any notice and no opportunity of hearing was given to the petitioner as such the Deputy Commissioner, South Andaman District violated the principles of natural justice and due to the denial of opportunity given to the petitioner the right of the petitioner has been affected since the petitioner's name has been deleted from the record of right.

The sole petitioner is seeking direction on the respondent no.2 to set aside the order dated 25.07.2018 in R.C.Case No.209/2018/DC(SA) passed by the respondent no.2 by which record of right has been correct and the name of the petitioner has been deleted. Accordingly, the petitioner has sought for direction upon the respondent to consider review application within a time frame.

Having regard to the facts disclosed by the petitioner and upon hearing learned counsel for both the parties, this Court find that the earlier suit being T.S. No.4 of 2001 was filed on behalf of the petitioner was decided by the learned Civil Judge Senior Division and a decree ex-parte in part was passed against the private respondent wherein it has been declared by the plaintiff i.e. the petitioner herein has a title along with the defendant no.2 to 10 being the private respondent herein in respect of the suit land. The suit land pertains to land bearing survey No.236 measuring 0.11 hectares situated at R.K. Pur, Little Andaman which was mutated in the name of the plaintiff and the defendant no.2. The private respondent no.4 filed the T.S.No.193 of 2013 and the learned Civil Judge Senior Division decreed the suit ex-parte in part without cost holding that the plaintiff of that suit i.e. private respondent no.4 namely Subhadra Roy has got right, title interest over the suit property to the extent of 1/4th share of suit property which she inherited from her deceased husband.

Petitioner filed an application under Order 9 Rule 13 Code of Civil Procedure registered as Misc. Judl. Case No.14/2021 which is still pending as per the submission made on behalf of the petitioner. Despite the pendency of the Misc.Judl.Case, the respondent no.2 allowed the recording of the name of private respondent no.4 by deleting the name of the present petitioner who was claiming to be the second wife of the deceased Shreepada Roy from the land bearing survey No.62 total area 2.27 hectares classified as PII and house site land bearing survey No.236 area 0.11 hectares situated at R.K.Pur village under Little Andaman Tehsil. The order dated 25.07.20218 passed by the respondent no.2 has been sought to be reviewed by the present petitioner by filing the application to that effect on 14.09.2021.

It appears that both the Title Suits were decreed ex-parte, the earlier ex-parte decree does not appear to have been assailed before the Civil Court. Subsequent aforementioned Title Suit was decreed ex-parte has been sought to be set aside by the present petitioner. It goes to show that the learned Civil Court was not apprised of the earlier ex-parte decree in favour of the petitioner. In the given situation, the right recourse is to go before the Civil Court to get the application under Order 9 Rule 13 C.P.C decided on merit upon evidence to be adduced by the parties to the said proceeding of Misc.Judl.Case. The record of right prepared by the respondent no.2 is exclusively in the name of Smti Subarna Roy but the earlier record of right in P.C.

respect of the new holding 171 was recorded in the name of the petitioner as well as the private respondent no.4 namely Smt.Subarna Roy and Smt. Subhadra Roy.

It transpires from the order of the respondent no. 2, that the private respondent no.4 is the first wife and present petitioner is the second wife of Late Sreepada Roy and this type of dispute can only be decided by the Civil Court on evidence. Be that as it may, the review application may be considered within a period of four weeks from the date of communication of this order.

With the above observations, the writ petition, being WPA/234/2021 is hereby disposed of. No cost. Since the respondent nos.1 and 2 have not file liberty to file their affidavit-in-opposition, averments made in the writ petition be treated as denied and disputed.

( Shivakant Prasad, J. )