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2009 DIGILAW 272 (JK)

Guddi Devi v. Amroo

2009-05-28

A.K.Shan

body2009
1. The order of Commissioner Agrarian Reforms Udhampur dated 22.10.2005 refusing to set aside the order passed on mutation No:435 dated 28.6.1993 under Section 8 of the Agrarian Reforms Act in favour of respondents No: 1 and 2, has been assailed in this revision petition and sought to be set aside by the petitioner on the grounds mentioned in the memo of revision. 2. The facts giving rise to filing of the present revision petition are as under:- Faquiroo and his son Bhagu were the individual tenants of the land mentioned in the appeal situated in village Kakaryal Tehsil Udhampur. Accordingly mutation Nos:340 and 341 were attested by the concerned Revenue Officer declaring them prospective owners of the land. Subsequently Faquiroo died and thereafter his son Bhagu expired in the year 1988. Faquiroo had only one son named above who had married two women. From the 1st wife respondents were born and from 2nd the petitioner. After the death of Faquiroo and Bhagu Tehsildar (Settlement) Udhampur attested mutation under Section 8 of the Agrarian Reforms Act on 28.6.1993 and conferred the rights of ownerships upon respondent Nos: 1 and 2. 3. Aggrieved by the said mutation petitioner preferred an appeal before the Additional Deputy Commissioner, (with powers of Commissioner Agrarian Reforms), Udhampur on 18.10.2001 pleading therein as heir of Faquiroo and Bhagu, she alongwith respondents was entitled to be declared owners of the land. She sought condonation of delay in filing the appeal on the ground that impugned mutation was attested in her absence and for away from the land in question. 4. The appellate court turned down the appeal by holding that under Section 28 of the Agrarian Reforms Act before attestation of mutation under Section 8 the Rule of succession applicable were that of occupancy tenant according to which only sons are entitled to succeed and not the daughter of a tenant and as such mutation has been rightly attested in favour of respondent Nos: 1 and 2 being the sons of deceased tenant Bhagu. 5. The judgment of the appellate court has been assailed on the ground that the petitioner alongwith respondents were entitled as heirs of their father and grand father to become the owner of the land. 6. That impugned mutation was attested in violation of Standing Order 23-A without summoning the petitioner and as such the same is null and void. 7. The judgment of the appellate court has been assailed on the ground that the petitioner alongwith respondents were entitled as heirs of their father and grand father to become the owner of the land. 6. That impugned mutation was attested in violation of Standing Order 23-A without summoning the petitioner and as such the same is null and void. 7. That Shajra-Nisab has not been prepared correctly because it makes reference only to two legal heirs of Bhagu whereas he had 4 legal heirs which point out that Tehsildar(Settlement) had attested the impugned mutation without conducting inquiry on spot which is a sine quo non for attesting mutation. 8. It is further claimed by the petitioner that otherwise she was entitled to be made the owner of the land. 9. In the present case, petitioner and her counsel stopped appearing continuously from 18.2.2008 and as such the Ld. counsel for the contesting respondents was heard. 10. The Ld. counsel for the contesting respondents submitted that impugned mutation has been passed in accordance with Section 28 of the Agrarian Reforms Act and the appeal has been properly dismissed because petitioner alongwith her step sisters cannot claim right of succession before their father Bhagu would have been made absolute owner. 11. In this background, he further submitted that no purpose will be solved by remanding the case for hearing the petitioner because the position laid down in Section 28 cannot be changed by adopting such course. 12. After giving my thoughtful consideration to the arguments advanced by the Ld. counsel for the contesting respondents and examining the record I proceed to decide the petition as here-in-under. 13. So far attestation of mutation under Section 4 of the Agrarian Reforms Act ( here-in-after the Act) in favour of father and grand father of the parties during their life time is concerned, is not disputed. 14. In the light of the ground adopted in the revision petition as well as before the appellate court the question arises as to whether mutation under Section 8 has been properly attested in favour of respondent Nos: 1 and 2 or not. To answer this question reference is required to be made to the provision contained in the Act. It is Section 28 of the said Act which is relevant to dispose of the question involved in this petition, which is re-produced as under:- 28. To answer this question reference is required to be made to the provision contained in the Act. It is Section 28 of the said Act which is relevant to dispose of the question involved in this petition, which is re-produced as under:- 28. "Rights and liabilities of prospective owner--(1) Notwithstanding anything contained in any law- (a) a prospective owner of land eligible by or under this Act to acquire ownership rights in land under his personal cultivation shall continue to have all rights and be subject to all liabilities ( including the payment to the State of the rent which was payable by him to the ex-landlord before the commencement of the Jammu and Kashmir Agrarian Reforms Act, 1972) as a tenant under the Jammu and Kashmir Tenancy Act, 1990, until he is vested with ownership rights in such land: Provided that he shall be governed by the rules of succession applicable to the occupancy tenants until he becomes owner of such land". 15. This Section definitely applied to the case of the prospective owner before conferment of ownership rights upon them. Till the vesting of ownership rights on the prospective owners, they are to be treated as tenants and rule of succession as applicable to occupancy tenants, applies to them. 16. Thus when the prospective owner dies before becoming absolute owner he is to be treated as tenant and only his sons can succeed to him as an occupancy tenants, as provided by Section 67 of the J&K Tenancy Act 1923. His daughter cannot claim any right in succession. Of course, the position will be different when the prospective owner dies after attestation of mutation under Section 8 of the Act in his favour. In that case the legal heir including the daughter can also claim right of succession. 17. In the present case, admittedly Faquiroo and Bhagu died as prospective owner and not as absolute owner, as such only respondents Nos: 1 and 2 as the male members can claim to be made as occupancy tenants with their right for the conferment of right of ownership under Section 8 of the Act, provided the other conditions laid down in the Act are satisfied. The appellate court has properly appreciated the provision of law which cannot be disturbed. The appellate court has properly appreciated the provision of law which cannot be disturbed. Although Tehsildar (Settlement) Udhampur has attested the impugned mutation but not in accordance with Section 28 of the Act, still this lapse can be treated an irregularity and not illegality . The appellate court has rightly rejected the prayer of the petitioner for becoming the prospective owner. 18. Now coming to the prayer of petitioner to set aside the mutation having been attested at her back, it is suffice to say that this prayer cannot be allowed. The reason is, only an interested person is to be summoned and interested person is that who has right or interest in the property. In the present case under Section 28 of the Act only respondents Nos: 1 and 2, being male members of the family are the person required to be recorded as prospective owners in place of their deceased father/grand father (occupancy tenants), after their death without attesting mutation under section 8 of the Act in their favour. As such it will be mock exercise in remanding the case for fresh orders after hearing the petitioner or respondent No:3, because in no case the daughters of deceased prospective owner can be declared as occupancy tenants. Had there been any third son of deceased prospective owner, not summoned at the time of attestation of impugned mutation, then his prayer for setting aside the same could have prevailed. As petitioner and respondent No:3 under Section 28 of the Act are not entitled to become occupancy tenants, so they were not rightly summoned by Tehsildar Settlement, Udhampur while attesting impugned mutation. In fact Section 28 excludes the general rule of succession and has been rightly followed by appellate court. 19. Accordingly the revision petition is dismissed and order of the appellate court is upheld. 20. Record of the Court below be sent back and file of this Tribunal be consigned to record after due compilation.