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2009 DIGILAW 273 (JK)

Parkash Singh v. Attar Singh

2009-05-28

A.K.Shan

body2009
1. In this case respondent is not appearing nor his counsel for pretty long time. 2. I have heard the Learned counsel for the petitioner and examined the record minutely. 3. Earlier counsel for the petitioner was asked to submit arguments about the maintainability of the revision petition. He has been heard on this point, as well as on merit. 4. In fact the revision petition is directed against the judgment of the appellate court dated 28.4.2003, by which the case has been remanded for fresh enquiry. 5. The facts landing the revision petition before this Tribunal are as under:- Land under Khasra No:198 and 104 was in possession of Attar Singh and Balwan Singh ss/o Labh Singh as tenant prior to coming into force of Big Landed Estate Abolition Act (here-in-after the Abolition Act). 6. Accordingly they were made the owners. Subsequently Balwan Singh died as bachelor whereupon mutation of inheritance was attested in favour of Attar Singh. Petitioner being the brother of Balwan Singh challenged the said mutation in an appeal before Director Land Records Jammu (here-in-after "the Director"). By a detailed judgment the Director held that petitioner was entitled to inherit the property of his brother Balwan Singh alongwith Attar Singh under Hindu Succession Act and after setting aside the mutation remanded the case to Tehsildar Settlement Officer for attesting the mutation afresh as per Hindu Succession Act. 7. Accordingly mutation of inheritance No:262 was attested by the said Tehsildar in favour of petitioner (Parkash Singh) and respondent (Attar Singh). 8. On 20.3.1993 respondent filed an application before Tehsildar Settlement Hiranagar for correction of entries of Girdawari for the period between Rabi 1990 to 1992 in respect of Khasra number 198 and 354/214. 9. The Tehsildar went to spot and in presence of the parties inspected the land and found that respondent Attar Singh was in possession of Khasra No:204 and petitioner Parkash Singh in possession of Khasra No:198. He directed the continuation of possession of petitioner in respect of Khasra No:198 both on spot as well as in record. No order was passed in respect of Khasra Nio:354/226 as the case was reported to be sub-judice before the Hon'ble High Court of Jammu and Kashmir. This order was passed on 8.2.1997. 10. He directed the continuation of possession of petitioner in respect of Khasra No:198 both on spot as well as in record. No order was passed in respect of Khasra Nio:354/226 as the case was reported to be sub-judice before the Hon'ble High Court of Jammu and Kashmir. This order was passed on 8.2.1997. 10. Aggrieved by the order of Tehsildar Settlement, respondent Attar Singh preferred an appeal before Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Kathua (here-in-after the Commissioner), on 26.8.1997. The appeal was time barred so he filed the application for condonation of delay. The appeal was decided on 28.4.2003 by remanding the case to Tehsildar Settlement Hiranagar for fresh inquiry and passing of appropriate order under Law. 11. The Learned counsel for the petitioner re-iterated all the grounds taken in the revision petition and inter alia submitted that generally revision is not maintainable against an order of remand, but where the order of remand is uncalled for and is perverse, then revision is maintainable. In support of his argument he cited the judgment reported in (2008) SCCR 809. He next contended that the reasons given by the appellate court for remanding the case are apparently perverse and not sustainable in the eyes of law and on this account the revision petition is required to be accepted. According to the grounds given for remanding, the case is hit by the rule of res judicata because the Director has already decided the controversy between the parties which has attained the finality because the same has not been challenged by the respondent. 12. As already noticed mutation No:262 stand attested in favour of the petitioner and respondent, as brothers of the deceased Balwan Singh, on the directions of the Director Land Records. So by virtue of this mutation the parties were entitled to retain the possession of the land belonging to Balwan Singh. After the mutation the parties had become the co-owners in equal share. The said mutation was not challenged by the respondent and has thus attained finality. Without considering this fact the appellate court held as under for setting aside the mutation which is patently perverse and illegal:- "I have given due consideration to the arguments put forth by both the parties and have gone through the records available on the file. The said mutation was not challenged by the respondent and has thus attained finality. Without considering this fact the appellate court held as under for setting aside the mutation which is patently perverse and illegal:- "I have given due consideration to the arguments put forth by both the parties and have gone through the records available on the file. As per note laid down in red ink on the copy of Jamabandi for the year 2004-05 BK mutation No:57 passed under BLEA Act, respondent Parkash Singh has not conferred any right of ownership and the same stands conferred in favour of Balwant Singh and Attar Singh. The appellant is claiming that suit land is his continuous possession prior to Kharif 1971 and the Balwant Singh reportedly died unmarried and his property stands devolved upon the appellant so the impugned order having been passed without application of mind is bad in law and deserves to be set aside. For the fore-going reasons the instant appeal is accepted and impugned order is set aside and case remanded to the Tehsildar Settlement Hiranagar for fresh enquiry and passing appropriate order under law". 13. When the Director Land Record has already settled the issue that petitioner Parkash Singh is entitled to inherit the land belonging to his deceased brother alongwith respondent Attar Singh and in this background mutation of inheritance has already been attested then how the appellate court has again reopened the issue and set aside the mutation which was in respect of correction of the khasra Girdawari is not understandable. The appellate court has blamed Tehsildar Settlement for non application of mind but it appears that the appellate court has not itself applied the mind to the facts of the case. The appellate court appears not to have examined the judgment of Director Land Record and has rested its finding on the entries made in red ink on the copy of Jamabandi, forgetting that issue before him was different. 14. Thus the grounds for remanding the case by the appellate court are apparently hit by rule of res judicata and are thus without jurisdiction. 15. Otherwise the appellate court does not appear to be well versed with the controversy between the parties. The respondent had only filed an application for correction of Girdawari in respect of khasra No: 198 when he himself is in possession of khasra No:204. 15. Otherwise the appellate court does not appear to be well versed with the controversy between the parties. The respondent had only filed an application for correction of Girdawari in respect of khasra No: 198 when he himself is in possession of khasra No:204. The Tehsildar Settlement Hiranagar made spot inspection in presence of the respondent and noticed that he was in possession of the land under khasra No:204. Similarly he found the petitioner in possession of khasra No:198. 16. If this is the position on spot then for what purpose the appellate court has remanded the case for fresh inquiry is not made out from its judgment. The remand order has been passed mechanically. Specific reasons have to be adopted for re-trial of the case and the original authority has to be directed to adopt a particular course so that such authority passes fresh order in the light of such direction. If it is not done the order of remand apparently becomes bad in law. 17. Otherwise there was every material available with the appellate court for disposal of appeal and as such remanding of the case is uncalled and is not sustainable in the eyes of law. The order of the appellate court suffers from an another infirmity. The appeal was apparently time barred. The application for condonation had been filed. The appellate court has not decided that application and has directly entered upon the merits of the case. This flaw also makes the judgment of the appellate court unsustainable. 18. As per Rule 48 of the Agrarian Reforms Rule 1977, provision of civil procedure code relating to appeal from original degree apply mutatis mutandis to all the appeals under the Agrarian Reforms Act. As per order 41 rule 3-A CPC when an appeal is presented after the expiry of period of limitation, the application for condonation of appeal shall be first decided by the court and only thereafter the appeal can be decided on merit. 19. In the present case the mandatory provision of law have been followed in breach by the appellate court which makes its judgment unsustainable in the eyes of law. 20. There is another justified reason for holding that appellate court had no jurisdiction to entertain the appeal. In fact the Tehsildar Settlement Officer was approached for correction of Girdawari from Rabi 1990 to 1992. 20. There is another justified reason for holding that appellate court had no jurisdiction to entertain the appeal. In fact the Tehsildar Settlement Officer was approached for correction of Girdawari from Rabi 1990 to 1992. Apparently the application was under Land Revenue Act and not Agrarian Reforms Act. The provision of Agrarian Reforms Act are attracted where in the course of attestation of mutations under chapter IV, any party objects to the correctness of an entry in Khasra Girdawari. In the present case before Tehsildar Settlement Hiranagar, no proceedings for attestation of mutation under the Agrarian Reforms Act were pending, as such by passing the order on the application for correction of Girdawari for the period between 1990-1992, the Tehsildar was not acting under the provision of Agrarian Reforms Act but under the Land Revenue Act. Accordingly the respondent ought to have filed the appeal under Section 11 of the Land Revenue Act before the Collector of the District and not before the Commissioner Agrarian Reforms. 21. The corollary of above discussion leads me to accept the revision petition on account of the impugned order being without jurisdiction. As such the revision petition is allowed and the order of the appellate court is set aside. 22. It is pertinent to mention here that original record was summoned from the court below whereupon this Tribunal was intimated that record has already been submitted to this Tribunal but it was reported by Deputy Registrar of this Tribunal that record has not been received whereupon a fresh reminder was issued to the court below but no reply was given. As sufficient material was available with this Tribunal for disposal of the present revision petition so the necessity of summoning the record was not felt. Any how the court below shall try to trace out the record in question. 23. File be consigned to record after dispatching the copy of this judgment to the court below for necessary action.