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2009 DIGILAW 254 (JK)

Custodian, Evacuee Property, Jammu v. Mussa

2009-05-21

A.K.Shan

body2009
1. This revision petition is against ex-parte order passed in mutation No:193 dated 9.4.1984 under Section 8 of the Agrarian Reforms Act whereby the land under number Khasra 157 measuring 30 kanals 18 marlas has been mutated in favour of the respondent with the prayer to set aside the same on the ground that mutation could not have been attested as the land is evacuee property. As per revision petition the mutation has been attested at the back of the petitioner who was necessary and interested party. 2. That under Section 4-A of the Agrarian Reforms Act, the mutation is null and void. 3. I have heard the Learned counsel for the petitioner and examined the record. 4. As per the file fresh copy of the mutation was produced by the concerned Patwari whereas there is already a attested copy of the same annexed with the revision petition. The fresh copy of the mutation reveals that mutation in question was set aside on 21.4.2003 in reference to the letter of Custodian Jammu dated 22.7.2002 to the extent of Ab. Rashid, Ab. Jalil, Ab. Jameer Ss/o Ab. Rahim. Ab. Aziz, Ab. Hamid ss/o Ab. Mohd on the ground that the land in their possession was evacuee property. The petitioner has also placed on record the copy of the Notification dated 16.8.2002 by virtue of which land under number Khasra 157 has been notified as evacuee property. 5. Under Section 3 of the Agrarian Reforms Act(here-in-after the Act), evacuee property is exempted from the operation of the said Act and as such no mutation under Section 8 can be attested in favour of the person in possession of the evacuee property. At the most under Section 3-A of the Act occupancy tenancy right can be conferred upon such person. 6. In the present case, it is noticed that the land in question has been treated to half of its extend as evacuee property and mutation in question has been set aside to that extent on 21.4.2003. There is no record available on the basis of which it could be held that the land in question has been partitioned or divided in two portion. When the land has semblance of being the evacuee property and a notification declaring the same as evacuee property stands issued then fresh order are required to be passed after hearing the petitioner. There is no record available on the basis of which it could be held that the land in question has been partitioned or divided in two portion. When the land has semblance of being the evacuee property and a notification declaring the same as evacuee property stands issued then fresh order are required to be passed after hearing the petitioner. While attesting the mutation in question, the Tehsildar Agrarian Reasi failed to summon the petitioner who was necessary and interested party. On this count also the mutation in question is not sustainable. 7. Accordingly the mutation in question to the extent of the respondent is also set aside and the case is remanded back to Tehsildar Agrarian Reasi to decide the case afresh after summoning the petitioner and in case the land in possession of respondent is also evacuee property mutation under Section 3-A of the Act shall be attested in their favour. If the land is not evacuee property then the Tehsildar should pass the order under the provision of the Agrarian Reforms Act. 8. File be consigned to record after due compilation.