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2009 DIGILAW 324 (JK)

Amar Nath v. Ravi Kumar

2009-07-03

A.K.Shan

body2009
1. The judgment dated 27.8.2004 of the Appellate Court of Additional Deputy Commissioner (with powers of Agrarian Reforms Commissioner (Settlement Officer) Udhampur has been assailed in the present revision petition on the grounds mentioned in the same. 2. In order to understand the controversy between the parties it will be appropriate to take into consideration the facts of the case which are as under:- i/- Land measuring 17 kanals 4 marlas falling under khasra number 101 situated in village Jakhen Tehsil Udhampur was being cultivated by Bhagtu s/o Gangu Chmar as occupancy tenant, much prior to coming into force of the Agrarian Reforms Act(here-in-after the Act). He died in the year 1964 leaving behind three sons Mulkh Raj, Ved Parkash and Amar Nath besides 4 daughters Kashu, Shanti Devi, Surju and Guddi. The daughters had been married during the life time of their father. In the year 1975 mutation of inheritance was attested in favour of three sons of the deceased Bhagtu and not in favour of his daughter because they were disabled legally to the inheritance of the occupancy right. ii/- On 27.2.1982 mutation under Section 4 was attested in favour of the three sons named above alongwith their brother-in-law Chandu on the basis of the entries verified by the Circle Officer in Kharif 1971 on 15.1.1975. Subsequently on 22.1.1985 mutation under Section 8 of the Act was attested. Mutations were challenged before the Appellate Court on 22.10.2003 by sons of Bhagtu. iii/- In the appeal it was pleaded that the land in question was under the occupancy of three sons of Bagtu, who are here-in-before this Tribunal as petitioner and respondents 8 and 9. That Circle Officer on 15.1.1975 tempered the entries recorded in kharif 1971 and introduced son-in-law of Bhagtu as the person cultivating 1/3 of the land alongwith his three sons. That the mutation were attested at the back of the appellants before the court below, and they acquired the knowledge of same during the acquisition proceeding initiated in respect of land in question and accordingly they obtained the attested copy of mutations which were delivered to them on 21.10.2003 and on the next day appeal was filed and the same was in time. That the mutations were attested without summoning the appellants and as such mutations are liable to be set aside. That the mutations were attested without summoning the appellants and as such mutations are liable to be set aside. iv/- The appellate court after hearing the parties held that appeal is time barred on the ground that respondent Mulkh Raj was present at the time of attestation of mutation under Section 8 of the Act. That Mulkh Raj was the head of the family after the death of his father, who failed to raise any objection before the attesting officer and did not prefer the appeal within the period of 60 days as provided by the Act. He also considered the merits of the case and held that the possession of Chandu in Kharif 1971 was verified by the Circle Officer which was not challenged by the appellant before any forum and when the land was acquired for construction of by-pass road, the appeal was filed. v/- Aggrieved by the decision of the appellate court, Amar Nath appellant in court below filed the present revision petition arraying his two brothers as respondents 8 and 9 besides the legal heirs of Chandu who had died much prior to the filing of the appeal in the court below. 3. In this case written arguments have been submitted by the Ld. Counsel for the parties which have been considered by me thoroughly. I have also examined the whole of the record minutely. 4. After going through the written arguments submitted by the Learned counsel for the petitioner it is noticed that after the marriage of their sister with Chandu, she was turned out by her in laws whereupon out of courtesy, two kanals of land was given to her which is in her possession. But to the contrary 1/3 of land measuring 5 kanals 13 marlas has been verified in possession of her husband in Kharif 1971. In this background it can be said that petitioner and his two brothers had handed over two kanals to her sister and she was in permissive possession because no documents has been executed gifting or transferring the said land to her. 5. Now what is the stand of the Legal heirs of Chandu is to be seen. In this background it can be said that petitioner and his two brothers had handed over two kanals to her sister and she was in permissive possession because no documents has been executed gifting or transferring the said land to her. 5. Now what is the stand of the Legal heirs of Chandu is to be seen. In the written objections to the revision petition filed by them it is admitted in para 2 of preliminary objections that Chandu did join his brother-in-law in cultivations of land during the crucial period and as such the mutation has been rightly attested in his favour as tiller of 1/3 of the land. This admission is sufficient enough to hold that Chandu was only assisting his brothers-in-law in cultivating land and not tilling the land, himself independently as tenant to any extent of the share. Without touching the merit of the case I will like to decide the question of law as to whether rights and benefit under the Act could be conferred upon Chandu or not. 6. Admittedly the land was being cultivated as occupancy tenant by the father of petitioner and respondents 8 and 9, much prior to coming into force of the Act. He died in the year 1968. Upon his death his occupancy tenancy devolved upon his three sons. As per Section 67 of the J&K Tenancy Act when the tenant die, tenancy will devolve only on son and not on daughters. Accordingly mutation of inheritance of tenancy was rightly recorded in favour of sons of Bagtu on 27.2.1975 which has not been disputed by the contesting respondents. 7. After going through the photo copies of the Girdawari on the file of the appellate court it is noticed that in Kharif 1971 the then Patwari had recorded the name of Bagtu as occupancy tenant although he had died in the year 1968. Later on on 15.1.1975 the then Circle Officer recorded the name of three sons of Bagtu as occupancy tenant for two share and Chandu for one share. Though the entry appears to be doubtful but one thing is apparent that the same has been tempered. This opinion of court is supported by admission of contesting respondents that their father was just assisting his brothers-in-law in cultivating land. Though the entry appears to be doubtful but one thing is apparent that the same has been tempered. This opinion of court is supported by admission of contesting respondents that their father was just assisting his brothers-in-law in cultivating land. Treating that the entries have not been tempered it is to be seen as to whether Chandu could be made owner of the land under Section 8 of the Act. As per the provision of the Act the ownership rights under Section 8 can be granted only to a person who was tilling the land as tenant in kharif 1971. 8. In the present case it has been admitted in the preliminary objection by the LRs of Chandu that Chandu did join his brother-in-law in cultivation of land in kharif 1971 as tiller. No where it has been pleaded that he was cultivating the land as tenant. Nor before the appellate court it was pleaded or argued that Chandu was cultivating the land as tenant. As such by recording his name as cultivator of some portion of the land in question by the then Circle Officer on 15.1.1975, Chandu cannot be made as owner under Section 8 of the Act. This position of law has not been considered by the Tehsildar who attested the mutation as well as by the appellate court. The ownership right of Chandu have been upheld simply on the ground that he was in possession of some portion of the land in Kharif 1971. Both the Revenue Officers have failed to take into notice the capacity and status in which Chandu was cultivating the land. The petitioner and his three brothers have not concealed the fact of possession of their sister over two kanals of land but to the contrary the legal heirs of Chandu have not admitted this fact and rather admitted that their father was in possession of land by assisting his brother-in-law in cultivating the land. In this background the ownership rights to Chandu could not be conferred under Section 8 of the Act, merely for assisting his brothers-in-law in cultivating the land. 9. The appellate court has held that mutation No:8 was attested in presence of Mulkh Raj which has been denied by him in the written arguments filed by his counsel. In this background the ownership rights to Chandu could not be conferred under Section 8 of the Act, merely for assisting his brothers-in-law in cultivating the land. 9. The appellate court has held that mutation No:8 was attested in presence of Mulkh Raj which has been denied by him in the written arguments filed by his counsel. His stand is that his signature has been forged because he is illiterate person whereas his signature has been shown to be made in urdu. According to him he had put his thumb impression on the mutation of inheritance of tenancy right attested in 1975. Even presuming that Mulkh Raj was present when mutation u/s No:8 was attested it does not validate the same in absence of his two other brothers. It is pertinent to note here even Chandu was not present at the time of attestation of mutation under Sections 4 and 8 of the Act. Even if Mulkh Raj is presumed the head of the family his admission under no provision of law will be binding on his brother. This position of law has been mis-interpreted by the appellate court. 10. After going through the mutation under Section 4 of the Act, it is noticed that petitioner and his two brothers were never summoned nor they were present at the time of attestation of mutation. So apparently mutation under Section 4 is nonest and void abinito. This question of law has not been considered by the appellate court. When mutation under Section 4 is void, mutation under Section 8 becomes void too even if respondent Mulkh Raj was present. 11. As already held that petitioner Amar Nath and his other brothers Mulak Raj and Ved Parkash were not summoned at the time of attestation of mutation under Section 8 of the Act, as such the mutation will be void so far they are concerned. Even presuming respondent Mulak Raj was summoned, still the mutation is invalid. It is not sufficient under law to summon only one interested party so as to make the order of mutation valid in the eyes of law. The requirement of the law is to summon all the interested persons and if that is not done the whole proceedings conducted in the mutation are null and void. As such the finding of the court below that appeal was time barred is not sustainable. The requirement of the law is to summon all the interested persons and if that is not done the whole proceedings conducted in the mutation are null and void. As such the finding of the court below that appeal was time barred is not sustainable. The appellate court as such should have allowed the appeal and remanded the case for attestation of mutation under Section 8 of the Act in favour of the above named three brothers, after summoning them which has not been done making the judgment invalid and illegal. 12. Viewed thus the mutation No:195 under Section 4 and mutation No:241 under Section 8 of the Act attested on 27.2.1982 and 22.1.1985 respectively are set aside including the judgment of the appellate court. The case is remanded to Tehsildar Udhampur for passing fresh order in the light of observations made here-in-above. 13. Record of the court below be sent back and file be consigned to record after due compilation.