1. This revision petition is directed against the order dated 7.1.2006 passed by Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Rajouri in an appeal filed before him by Ab. Kareem, Mohd Hussain and Mohd Sharief sons of Ab. Aziz challenging the attestation of mutations under Sections 4 and 8 of the Agrarian Reforms Act (hereinafter the `Act') attested by Assistant Commissioner Revenue Rajouri in favour of petitioners herein. 2. This case has a chequred history of about 62 years. The synopsis of case culminating into filing of this revision petition, as disclosed from the impugned order and mutation NO:1875 dated 16.7.1999 attested by Tehsildar Rajouri are as under:- Land falling under No: Khasra 335 and 335/1 situated in village Rampur Rajouri alongwith other land belonged to Ab. Aziz s/o Kala and Gani s/o Gwasha in equal shares and was in their possession. In 1947, when partition of country took place, communal riots followed at large scale in which thousands of citizens lost their lives. This set in motion en mass migration across the border of the two countries i.e. India and Pakistan. 3. Gani named above crossed the border and went to Pakistan. Ab. Aziz however, took shelter with his relatives in Darhal village, 20 Kms. away from Rajouri. During his absence, Abdul Majid s/o Ab. Aziz Kashmiri, an employee of Panchayat Deptt., manipulated allotment of land in question belonging to Gani and Ab. Aziz in his favour and remaining land was also occupied by different persons, who also succeeded in obtaining allotment order under Evacuee Property Act. 4. After a long time when peace prevailed, Abdul Aziz came back to Rajouri and was astonished to see that his land as well as that of his co-owner Gani was occupied by Ab. Majid Kashmiri and others. He knocked the doors of different revenue authorities for restoration of land but no body paid any attention. 5. Ultimately he filed a civil suit in the court of Ld. Sub-Judge Rajouri for possession of his land from Ab. Majid Kashmiri, Ab. Gani s/o Abdullah, Gh. Mohd s/o Khazra, Gh. Rsool s/o Faquir Joo, Mohda s/o Alia and Ab. Aziz s/o Hassa, who had illegally occupied his land falling under number Khasra 140,335,335 min, 340,346,249 and 235. The Ld. Sub-Judge passed a decree on 7.2.1958 in favour of Ab. Sub-Judge Rajouri for possession of his land from Ab. Majid Kashmiri, Ab. Gani s/o Abdullah, Gh. Mohd s/o Khazra, Gh. Rsool s/o Faquir Joo, Mohda s/o Alia and Ab. Aziz s/o Hassa, who had illegally occupied his land falling under number Khasra 140,335,335 min, 340,346,249 and 235. The Ld. Sub-Judge passed a decree on 7.2.1958 in favour of Ab. Aziz for possession of land by declaring the above named persons as tress passers. 6. Ab. Aziz failed to reap the fruits of decree for the reasons stated in para 3 of the impugned order and finally he approached Assistant Custodian Rajouri who by an order dated 29.9.1981 directed the restoration of land to him and declared the share of ex-owners Gani s/o Gwasha as evacuee land and regularized the allotment of Ab. Majid s/o Ab. Aziz Kashmiri as an allottee. 7. The order of Assistant Custodian Rajouri was challenged by the opposite parties by filing an appeal before Deputy Custodian( Additional Custodian) Rajouri which was rejected on 9.8.1982. 2nd appeal was filed before Deputy Custodian Jammu, which was also dismissed. By that time owner Ab. Aziz had died, so Deputy Custodian directed Assistant Custodian to restore possession of land to son of Ab. Aziz namely Abdul Karim. 8. However, possession was not restored to Abdul Kareem. Instead under Section 4 of the Act land under number Khasra 335 and 335/1 was vested in the State by mutation No:758 and finally by mutation No:872 ownership rights were conferred under Section 8 of the Act upon Ab. Gani s/o Abdulla, the father of petitioner 1 to 5, Bashir Ahmed s/o Mohd Din and petitioners 6 to 8, herein. These two mutations were challenged by Abdul Kareem by filing appeal before Additional Deputy Commissioner (with powers of Joint Commissioner Agrarian) Rajouri, who allowed the same on 27.7.1998 and set aside them and remanded the case to Tehsildar Rajoui for fresh inquiry with respect to determination of the question as to whether the land in question is an evacuee property or not. He observed that in case land is evacuee land then provision of Agrarian Reforms Act will not apply otherwise there is no bar to mutations under appeal. 9. On 16.7.1999 the Tehsildar conducted a detailed inquiry in presence of Ab. Kareem owner, Mohd Younis petitioner, and Bashir Ahmed s/o Mohd Din. The latter two persons adopted a false stand before the Tehsildar. 9. On 16.7.1999 the Tehsildar conducted a detailed inquiry in presence of Ab. Kareem owner, Mohd Younis petitioner, and Bashir Ahmed s/o Mohd Din. The latter two persons adopted a false stand before the Tehsildar. According to them land in dispute is evacuee land and was allotted firstly to Ab. Aziz s/o Lassa Lone and Gh. Rasool s/o Mohd Din r/o Rampur Rajouri. Later on Ab. Gani father of Mohd Younis obtained the possession of land belonging to Ab. Aziz against the payment of Rs.1600/-. 10. According to Bashir Ahmed named above (who has not been arrayed as party in the present petition) he alongwith his brother obtained the possession of remaining land from Gh. Rasool s/o Mohd Din. 11. Both Mohd Younis and Bashir Ahmed admitted before Tehsildar that Ab. Aziz father of Abdul Karim was owner of the half of the land but they are now the owners of land on the basis of long possession . They also admitted that they had never paid any rent to the owner of land Ab. Aziz. 12. Based on the statement of above two persons Tehsildar returned a finding that persons on whom the rights of ownership had been conferred by attesting mutations No: 872 under section 8 of the Act were in fact not the tenants but tress passers and cannot be made absolute owner of land in question under Section 8 of the Act. In holding the possession as that of tress passers he relied upon the decree of Ld. Sub-Judge Rajouri. He also noticed the order of Assistant Custodian regarding restoration of the land to the extent of = to Ab. Aziz. 13. Finally Tehsildar directed that name of Ab. Karim to the extent of half be recorded as owner and that of deceased Ab. Gani, Bashir Ahmed S/o Mohd Din, Mohd Shafi, Abdul Rehman and Mohd Afzal sons of Gh. Rasool as tress passers in the revenue record and directed their ejectment under Section 27 of the Act. 14. The orders was passed in mutation No:1875, which was challenged by Mohd Younis etc petitioners herein by filing an appeal before Addl. Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Rajouri on 5.8.1999. 15. Rasool as tress passers in the revenue record and directed their ejectment under Section 27 of the Act. 14. The orders was passed in mutation No:1875, which was challenged by Mohd Younis etc petitioners herein by filing an appeal before Addl. Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Rajouri on 5.8.1999. 15. The said Commissioner accepted the appeal on 7.x.2002 and set aside the order passed in mutation No:1875 and remanded the case to Assistant Commissioner (Revenue) the Collector under Agrarian Reforms Act for holding fresh inquiry. He set some goal for fresh inquiry like to find out for how much long appellants before him were in possession of land and as to whether they had filed any application claiming adverse possession or any proceeding against adverse possession were initiated or not. 16. The Commissioner declared the proceeding under Section 27 of the Act as illegal because according to him Collector Agrarian Reforms Act alone was competent to adopt such course and not the Tehsildar. The Assistant Commissioner (Revenue) after two years started fresh inquiry in mutation No:2752 dated 6.9.2004 at Rampur Rajouri. According to his inquiry the land in dispute was the proprietary land of Ab. Aziz s/o Kala and Gani s/o GWASHA. Gani went to Pakistan so his share of land is evacuee property. That Ab. Karim and his two brothers are admittedly the owners of the half of land belonging to their deceased father Ab. Aziz s/o Kala to the extent of 10 kanals and 17 = marlas. 17. The Assistant Commissioner also made reference to the observations made by Ist Commissioner that IF land is not evacuee, mutation under the Agrarian Reforms Act can be attested. 18. On the basis of the statement made before him by petitioners herein, that they are in continuous possession of the share of land belonging to Ab. Aziz s/o Kala, he declared them entitled to ownership of land under Section 8 of the Act to the extent of 10 kanals and 17 = marlas. 19. According to Assistant Commissioner when the case was remanded by Ist Commissioner, the Tehsildar Rajouri recorded finding that land in question is not evacuee land. He also held that land in question is not evacuee land and the land which is evacuee is in possession of some other persons and not the prospective owner. 20. 19. According to Assistant Commissioner when the case was remanded by Ist Commissioner, the Tehsildar Rajouri recorded finding that land in question is not evacuee land. He also held that land in question is not evacuee land and the land which is evacuee is in possession of some other persons and not the prospective owner. 20. The Assistant Commissioner on the ground of possession since Kharif 1971 with petitioners herein, attested mutation No:2752 under Section 4 of the Act vesting the land measuring 10 kanals 17 = marlas under number Khasra 335, in State and on 8.9.2004 attested mutation No:2753 under Section 8 of the Act granting ownership rights to the petitioner herein. 21. Both the mutations were then assailed by Ab. Karim and his two brother Mohd Hussain and Mohd Shafi by filing an appeal before A.D.Shanas Addl. Deputy Commissioner( with the powers of Commissioner Agrarian Reforms)Rajouri on 13.x.2004. The Commissioner took serious note of the order passed on said mutation by Assistant Commissioner Rajouri and passed adverse remarks against him in giving undue benefits to the petitioners herein without giving any finding about the existence of relationship of tenant and land lord between the parties and declared the possession of petitioners herein as that of tress passers. He also expressed his anguish as to how after restoration of the share of land to Ab. Aziz by Assistant Custodian in the year 1981, ownership right can be conferred on father of petitioners 1 to 6 herein and others under the Agrarian Reforms Act. He also held that after declaring father of petitioners 1 to 6 and others as tress passers there was no justification for conferring upon them the ownership rights under Section 8 of the Act. He finally accepted the appeal on 7.1.2006 and set aside the orders passed by Assistant Commissioner Rajouri on mutation No:2752 and 2753 referred herein above, which has been challenged by petitioners by filing this revision petition on the following grounds:- i/- That the land of Ghani co-sharer was the evacuee property and the remaining half belonged to Ab. He finally accepted the appeal on 7.1.2006 and set aside the orders passed by Assistant Commissioner Rajouri on mutation No:2752 and 2753 referred herein above, which has been challenged by petitioners by filing this revision petition on the following grounds:- i/- That the land of Ghani co-sharer was the evacuee property and the remaining half belonged to Ab. Aziz and Tehsildar Rajouri vide order dated 16.7.1999 proceeded in erroneous way and passed the order contrary to record and mandate of the remand order dated 21.7.1958 ii/- That Assistant Commissioner (Revenue) (here-in-after ACR) by his judgment upheld the mutation under Sections 4 and 8 after holding land measuring 10 kanal 17-1/2 marlas belonging to co-sharer Ghani; iii/- That appeal against the orders dated 6.9.2004 and 8.9.2004 passed by ACR has been decided by the appellate court on 7.1.2006 without application of mind. iv/- That the present revision is not maintainable because the court below has traveled beyond its jurisdiction and passed the impugned order without any basis and appreciation of the facts and law. v/- That the court below was not competent to by pass its earlier decision wherein it has been held that if the land is not evacuee property, the provision of Agrarian Reforms Act will be applicable. vi/- That the land in question is not an evacuee property to the extent of share of the respondent and there is no question of restoration on the basis of civil court judgment. vii/- That the order passed in the Ist appeal had attained finality as these orders have not been challenged till date or set aside by superior court and as such the question of law which arises for consideration is as to whether the same court has the jurisdiction to up set and interfere with its earlier decision against which no appeal, review or revision has been filed by the other party. 22. In this case Learned counsel for the petitioners started remaining absent upon which the written arguments submitted by him already were considered alongwith written argument submitted by the Learned counsel for the respondents. 23. I have meticulously examined the written arguments as well as the record. 24. In the revision petition the finding given by the court below with regard to the facts mentioned here-in-above have not been disputed and even the petitioners have admitted that Ab. 23. I have meticulously examined the written arguments as well as the record. 24. In the revision petition the finding given by the court below with regard to the facts mentioned here-in-above have not been disputed and even the petitioners have admitted that Ab. Aziz deceased was the owner of the half of the disputed land which is in their possession since Kharif 1971. The only question of law raised by petitioners is that court below was estopped from holding that the provision of Agrarian Reforms Act was not applicable to the present case when already in the earlier appeal it has been held that if the land is not evacuee property the provision of Agrarian Reforms Act will be applicable and there is no bar to mutation under appeal. In fact the petitioners are pleading that by rule of res judicata, the court below was not competent to hold that Agrarian Reforms Act is not applicable to the present case. 25. So the question of law that arises for consideration is as to whether the observations made by the Ist Commissioner Agrarian will operate as res judicata. Other question of law and public interest involved in this case are as under:- a/- Can the right, title and interest in land recorded and verified by the Circle Officer in Kharif 1971 in the name of person who is not a tenant extinguished and vested in the State ;and b/- Can such person be made absolute owner under Section 8 of the Act. 26. For the purpose of application of res judicata the Ist Court should have decided the case or point of law/facts on merit. Meaning thereby that there must be a decision deciding the rights of the parties finally. In the present case the Ist Commissioner has simply made an observations, without assigning any reasons or discussing the facts of the case and the relevant law, that in case the land is not evacuee property, there is no bar to the mutation under appeal. This observation cannot be treated as decision on the part of the Ist Commissioner. This observation can be treated as a passing remarks or strictly as obitardict, and not the ratio decidinde. This observation cannot be treated as decision on the part of the Ist Commissioner. This observation can be treated as a passing remarks or strictly as obitardict, and not the ratio decidinde. It was incumbent upon the Ist Commissioner, by stating reasons that how on the basis of simple possession of person in Kharif 1971, not being a tenant, provision of Agrarian Reforms Act are attracted. When the Ist Commissioner had remanded the matter for fresh inquiry he should have restrained himself from making such an observation. By putting such a rider he had not exercised his jurisdiction properly as well, because this rider was going to influence definitely the Inquiry Officer from giving his opinion regarding the application of the Agrarian Reforms Act. In this background, the observations of Ist Commissioner cannot be termed as decision and as such his observations cannot operate as res judicata. 27. So far the other question of law and public interest referred here-in-above are concerned, the Agrarian Reforms Act is not applicable to the land which is occupied by a person not being a tenant in Kharif 1971 or to the prior period. The Ist and 2nd Commissioner have not been able to grasp the object and spirit of the Agrarian Reforms Act. Had they made little exercise by going through the definition of tiller, in my opinion they would have out rightly upheld the appeals and set aside the mutations under Sections 4 and 8 of the Act without remanding the case for fresh inquiry. The Act does not take within its scope and ambit, the land which is occupied by a trespasser. In the present case the predecessor in interest of some of petitioners was shown to be in possession of the disputed land in Kharif 1971 without stating that in which capacity the land was occupied by him. Neither the petitioners have come forwarded with a plea that they or their one of the predecessor was cultivating the land as tenant of Ab.Aziz. Rather in the inquiry conducted on remand by Ist Commissioner, the Tehsildar Rajouri recorded the statement of petitioner Mohd Younis who categorically deposed that he or Bashir Ahmed had never paid any rent/revenue to the deceased Ab. Aziz admittedly the owner of the land. Rather in the inquiry conducted on remand by Ist Commissioner, the Tehsildar Rajouri recorded the statement of petitioner Mohd Younis who categorically deposed that he or Bashir Ahmed had never paid any rent/revenue to the deceased Ab. Aziz admittedly the owner of the land. The Tehsildar as such had declared the petitioners as trespassers and rightly held that mutation under Sections 4 and 8 cannot be attested in their favour and recommended eviction of the petitioners from the land. Though he had no jurisdiction to pass the order of eviction but still his finding regarding the appellants being trespassers cannot be held to be illegal or incorrect. This fact rather escaped from the notice of the 2nd Commissioner or he failed to appreciate the reasons adopted by Tehsildar Rajouri for non application of Sections 4 and 8 of the Agrarian Reforms Act. It was expected that in the light of statement made by the two petitioner Mohd Younis referred here-in-above, the 2nd Commissioner ought to have upheld the finding of the Tehsildar, Rajouri but instead he upset the finding and remanded the case for fresh inquiry on irrelevant and im-material points. How, the 2nd Commissioner was concerned with the adverse possession of petitioners when it is not their case, is not understandable. The Commissioner being a final authority under Agrarian Reforms Act is expected to be more acquainted and well-versed with the relevant law otherwise the people will never get justice and forced unnecessarily to go for endless litigation. 28. In my opinion the 3rd Commissioner Mr. A.D.Shanas appears to be well-versed with the relevant law as is evident from his decision. I place on record my appreciation for the 3rd Commissioner regarding his competency and knowledge of the relevant provision of law. Had such course been adopted by other two Commissioners, the deceased Ab. Aziz might have seen during his life time, justice being delivered to him. He fought for justice right from the time of partition of the Country but the justice eluded him like a mirage on the hands of the inept attitude of concerned revenue officers who mishandled his case and mis applied Sections 4 and 8 of the Act to give undue benefit to the petitioners. He fought for justice right from the time of partition of the Country but the justice eluded him like a mirage on the hands of the inept attitude of concerned revenue officers who mishandled his case and mis applied Sections 4 and 8 of the Act to give undue benefit to the petitioners. It is noticed that Assistant Commissioner( Revenue) Rajouri contrary to the facts recorded in mutations challenged in this Tribunal that Tehsildar Rajouri has held that land is not evacuee land. The then Tehsildar Rajouri has not held this fact. His order on mutation attested by him re more reasonable and carry legal force as compared to 2nd Commissioner who without good reasons set aside the same. 29. It is further observed that 2nd Commissioner failed to appreciate the legal position discussed by Tehsildar Rajouri. Both orders of Tehsildar and 3rd Commissioner Mr. Shanas are in conformity to the provision of relevant law. In fact it is Tehsildar Rajouri, who has correctly decided the matter remanded to him by the Ist Commissioner. His findings have been correctly upheld by Mr. Shanas, illegally set aside by 2nd Commissioner. There was no occasion to set aside the order passed by him denying conferment of ownership rights upon petitioner, who had illegally occupied the land belonging to predecessor- in-interent of private respondents. It is astonishing that there is no co-ordination among the different agencies dealing with the cases pertaining to land. This case reveals the sordid story of in subordination. The Assistant Custodian Rajouri failed to restore possession of land to the extent of half to Ab. Karim, as per the judgment of Deputy Custodian Jammu. By his slackness , he allowed the petitioners gain time who finally succeeded in obtaining ownership rights under Section 8 of the Act, who otherwise had occupied the land illegally in absence of Ab. Aziz owner, who failed to get justice during his life time, followed by his sons Ab. Karim and his two brothers. Probably the 3rd generation of Ab. Aziz is getting justice after agony of 62 years. 30. Record of the court below be sent back and file of this Tribunal be consigned to record after due compilation.