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2009 DIGILAW 396 (JK)

D. D. Rai v. Naveen Chander

2009-08-17

A.K.Shan

body2009
1. Order dated 20.9.2001 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms Kathua (here-in-after referred as Commissioner) dismissing appeal filed by the petitioners against the orders dated 26.12.1992 passed by Assistant Commissioner (Revenue) Kathua (ACR) in the capacity of Collector has been challenged in this petition on the ground that the important question of law and public interest is involved. The order dated 26.12.1992 was passed in the suit filed before ACR by respondents No. 1&2 for adverse possession over the land measuring 20 Knals falling under Khasra No. 56 in village Gainda Ths. Kathua. The petitioners have also filed separate revision against the order of ACR dated 17.4.1993 in a suit filed before him by the respondents No.1 &2 and one Joginder Raj in respect of land measuring 25 Kanals 16 marlas falling in number Khasra 125/104/56 of the same village claiming adverse possession over the same. Because both the appeals filed against the above said orders have been disposed of by the appellate court by common order so in order to avoid repetitions of the facts and law, which are to larger extent similar, it is proposed to decide both the revision petitions by a common order. 2. The brief facts of the case as disclosed from the record are as under:- Khasra No: 56 under Khewat No: 1 measuring 215 kanals and 6 marlas in village Chak Gandia Tehsil Kathua was in possession of the original land owners before the Big Landed Estates Abolition Act 2007 came into force. Under this Act proprietary right of the original landowners came to be extinguished over 80 kanals of land (46 Kanals 11 Marlas and 33 Kanals 9 Marlas) on the Southern side which was under the cultivation of Manglu and Khanu as tenants in Kharif 2007 Bikrimi, by virtue of mutations No:19 and 30 attested on 13th Chet 2007. The remaining land measuring 135 kanals and 6 marlas was brought under cultivation by the original land owners. Khewat No:1 consisting of khasra No:54,55,56,87/5,88/5 measuring 307 kanals, according to Jamabandi of 1971-72, was owned by Gurpartap Singh and others sons of Sant Ram, Gurdarshan Singh and Ors. Ss/O Sher Singh and Shiv Singh s/o Bhagwan Dass in equal share of about 100 kanals each. 3. Gurdarshan Singh and his three brothers gifted 66 kanals and 15 Marlas to petitioner No: 3 through registered gift deed dated 26.3.1994. Ss/O Sher Singh and Shiv Singh s/o Bhagwan Dass in equal share of about 100 kanals each. 3. Gurdarshan Singh and his three brothers gifted 66 kanals and 15 Marlas to petitioner No: 3 through registered gift deed dated 26.3.1994. Similarly other two brothers of Gurdarshan Singh sold 33 kanals and 6 Marlas of land to petitioner No: 1 through a registered sale deed dated 28.3.1964. 4. Shiv Singh owner also gifted 98 kanals of land to petitioner No:2 through registered gift deed dated 9.2.1966. The remaining 2 kanals were retained by Shiv Singh. Petitioner No: 2 Vidya Rani subsequently gifted away 58 kanals of land to petitioner No: 4 Ved Kumari. 100 kanals, share of Gurpartap Singh and his brothers in kharif remained intact in holding. 5. After conferring ownership rights upon Manglu and Khanu on the southern side of khasra No: 56 in respect of 80 kanals of land, the land was demarcated showing the sides on which the ex-owner and ex-tenant had occupied the land. The original number khasra 56 was also bifurcated in different number khasra. 56-min measuring 135 kanals remained with the owners and land measuring 80 kanals given to Manglu and Khanu was numbered as 125/104/56. 6. In 1980 an application was made by Dhanu and Ors. who were recorded as tenant of Manglu and three sons of khanu as per khasra Girdawari of Rabi 1986 in respect of 80 kanals of land under khasra No: 125/104/56, in equal share. 7. The matter was disposed of by virtue of mutation No:104 attested on 26.11.1980 according to which 54 kanals 15 marlas were shown in possession of petitioner No:1, 29 kanals 8 marlas with petitioner No:1 and 3. Manglu and three sons of Khanu, Premu, Nasibu and Lekhu were directed to be recorded in possession of 54 kanals 15 marlas out of 80 kanals of land transferred to them under Big Landed Estate Abolition Act (here-in-after referred as BLEA Act) The remaining land 25 kanals 5 marlas was held to be in cultivating possession of Dhanu and ors as tenant under the State. On 26.4.1988 the then Tehsildar (Mulkh Raj) Kathua went to spot and noticed that 25 kanals 5 marlas of land out of 80 kanals under number khasra 125/104/56 was denied to be in possession by the owners of land and tenant Dhanu etc. 8. On 26.4.1988 the then Tehsildar (Mulkh Raj) Kathua went to spot and noticed that 25 kanals 5 marlas of land out of 80 kanals under number khasra 125/104/56 was denied to be in possession by the owners of land and tenant Dhanu etc. 8. As per the said tenant they were in fact cultivating the land belonging to Gurpartap Singh and Ors. The Tehsildar directed the entries of land to be made to the extent of half share in favor of Manglu on the southern side and Premu and ors. Sons of Khanu on northern side. Patwari Halqa accordingly made an entry for Rabi 1988 in the khasra girdawari changing the position of land from tenants Dhanu to that of Manglu = share and Premu, Nasibu and Lakhu sons of Khanu for the remaining = of the share. 9. On 22.9.1992 respondent Naveen Chander and Satish Kumar filed a suit against Jai Karan and Bodh Raj sons of Manglu and Rampal son of Jai Karan, for declaration to the effect that they have become the owner by adverse possession of the land measuring 6 kanals 5 marlas, 16 marlas, 4 marlas, 12 marlas and 2 kanals 3 marlas and 10 kanals as specified in the Aks Tatima shajra No: 1 to 7 prepared by the Patwari in respect of khasra No: 56 situated Chak Gainda. 10. The suit was filed ACR Collector Agrarian Reforms Kathua. He decided the said suit on 26.12.1992 after the defendants before him made a statement that they have no objection in the grant of decree to the plaintiffs therein for adverse possession. 11. Similarly on 29.3.1993 respondents 1 and 2 along with one Jagdev Raj s/o Jai Dev Sharma filed a suit before the same ACR against Keshu, Parmu, Nasibu and Lekhu ss/o Khanu for grant of adverse possession decree in respect of land measuring 25 kanals 16 marlas in khasra No:125/104/56. The decree was passed on the admission and consent of the defendants therein on, 17.4.1993. 12. Aggrieved by the above two orders, petitioners preferred an appeal before Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Kathua on 20.10.1993. The appeals were decided by a common order dated 20.9.2001 by dismissing the same. The said order has been now assailed in revision petition filed before this Tribunal. 13. 12. Aggrieved by the above two orders, petitioners preferred an appeal before Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Kathua on 20.10.1993. The appeals were decided by a common order dated 20.9.2001 by dismissing the same. The said order has been now assailed in revision petition filed before this Tribunal. 13. The following are the grounds on which the impugned order has been challenged:- I/- That the order is contrary to the facts of the case and law on the points II/- Petitioners were the owner of the land measuring 198 kanals in Khewat No: 1 and were thus necessary party but were not made party to the case before Assistant Commissioner Kathua, therefore, the orders passed by the said officer were illegal and passed at the back of the petitioners which point of law has not been considered by the appellate court. The suits were filed obviously with object to deprive the petitioners from their legitimate right on the land in question. iii/- The findings of the appellate court that the petitioners are not necessary parties is cryptic and without assigning legal reasons because petitioners have been recorded in revenue records as owners of 198 Kanals in Khewat No. 1. iv/. The orders passed by ACR are without looking into the facts of each case which has resulted in miss-carriage of justice. v/. The decrees were collusive and passed just to deprive the petitioners from their legitimate right. Manglu and Khanu who acquired the land under BLEA Act were not competent to sublet or transfer the land and for doing so the land was to be vested in the State under Section 24 of the said Act but the court below have ignored this legal aspects of the case. vi/. ACR had no jurisdiction to pass the decrees for adverse possession and as such the orders passed by him are illegal and in-operative. Rather this fact has not been taken into consideration by the appellate court. vii/. The entire land under khasra No: 56 was owned and possessed by the petitioners and still the ACR passed the decrees of adverse possession in respect of the same number khasra. 14. I have considered the written arguments submitted by the Learned Counsel for the parties and examined the record minutely. 15. vii/. The entire land under khasra No: 56 was owned and possessed by the petitioners and still the ACR passed the decrees of adverse possession in respect of the same number khasra. 14. I have considered the written arguments submitted by the Learned Counsel for the parties and examined the record minutely. 15. Although number of contentious issue have been raised in the written arguments but in my view the only important question of law and public importance that arises for consideration is as to whether decrees for adverse possession could be passed in the light of facts and circumstances placed before the ACR and as to whether he had jurisdiction to pass such decrees. 16. The adverse possession is a legal term and came into existence while interpreting Articles 142 and 144 of the Limitation Act. These articles apply only to suits for possession. First article applies to suits based on possession and the second in the suits based on the title to the property. Under Article 142 a suit is required to be brought within 12 years from the date the plaintiff is dispossessed otherwise than in due course of law. If suit is filed after 12 years from the date of possession then the defendant, who has dispossessed the plaintiff by force, can claim title to the property by adverse possession. As we are concerned in the present case of an adverse possession on the basis of the possession so law relating to adverse possession on the basis of title is not being discussed. 17. In claiming adverse possession in defense or in a suit for declaration that plaintiff has become the owner of the land by adverse possession, it is not the simple claim of possession which merits consideration. Acts of user of land without the animus possidendi does not constitute adverse possession. I am fortified in my view by the decision on the point reported in AIR 1972 J&K 75 . Besides the possession should be hostile that is, a possession which is expressly in denial of the title of the true owner. Mere possession for more than 12 years is not sufficient. This law has been laid down in AIR 1972 Orrisa 145 and AIR 1966 Ker 286 . Similarly it has been held in AIR 1980 Mad. Besides the possession should be hostile that is, a possession which is expressly in denial of the title of the true owner. Mere possession for more than 12 years is not sufficient. This law has been laid down in AIR 1972 Orrisa 145 and AIR 1966 Ker 286 . Similarly it has been held in AIR 1980 Mad. 33 that it is only in cases of proved ouster and established assertion of sole and exclusive title and denial of title in others, question of adverse possession can arise. 18. Moreover, adverse possession is always a unilateral act and there is no question of any contract or agreement giving rise to adverse possession. Thus there can be no consent decree for adverse possession in the eyes of law. In that case the element of hostility and denial of the title of the owner is missing which is a sine qua non for claiming adverse possession. 19. Now it is to be seen as to what are the grounds for adverse possession claimed by the contesting respondents and whether same are covered by the above said principles of law or not. In order to find out that conclusion drawn by ACR are correct legally, the facts of the case filed before him are required to be taken note of. 20. In the first suit filed on 22.9.1992 it is noticed that the first page is not in original but in the shape of unattested photo copy and on a different page. The perusal of the file of the ACR has revealed this fact. Where the original page of plaint gone has is not forthcoming from the record. More over in the prayer of the suit the relief has been sought for declaration that plaintiffs therein have become owner of the land on the basis of simple possession which is different to the relief sought at the end of the plaint. This creates doubt as to whether prayer as claimed in the photo copy of the plaint is same as was in the original plaint. The irresistible conclusion is that the original first page of the plaint has been replaced to suit the interest of the plaintiffs therein. Of course the hostile possession has been claimed on the basis of possession for 15 years in the photo copy of the first page of the plaint but the same appears to be doubtful. The irresistible conclusion is that the original first page of the plaint has been replaced to suit the interest of the plaintiffs therein. Of course the hostile possession has been claimed on the basis of possession for 15 years in the photo copy of the first page of the plaint but the same appears to be doubtful. Even presuming the facts correct in the photocopy supra, claim for adverse possession is not made out from the statements of the plaintiffs and defendants recorded by the ACR. 21. In their statements both the plaintiffs before the ACR have claimed simple possession for 15 years. They have not denied the title of the original owner i.e. Mangloo nor claimed the same in hostility to the said person or his sons after his death. To the same effect is the statement of the defendants. It is claimed by both the parties that plaintiffs were in possession of the land when Mangllo was alive and entries reordered in the revenue records in the name of Mangloo are incorrect. 22. In the second suit adverse possession has also been claimed on simple possession for the last 15 years. In their statement recorded by ACR the defendants therein have stated that in view of the entries of the land recorded in their name in the revenue record they were under the impression that they are the owners of the land. 23. In the light of the grounds claimed for adverse possession and the law relating to adverse possession referred hereinabove, no decree for adverse possession could have been passed by the ACR Kathua. The ACR has not taken into consideration or discussed the same while passing the decrees in question. He has simply passed the decrees on the consent given by the opposite parties which are not legally sustainable. As already observed adverse possession is unilateral act. The claim is based on hostile possession. By declaring a party in adverse possession of the property with the consent of the opposite party definitely the element of hostility is lost which is a sine qua non for claiming adverse possession. Hostility and consent are not synonymous words. It appears that both the parties before the ACR have invented a device to defeat the provisions of law governing the transfer and disposal of the immoveable property. Hostility and consent are not synonymous words. It appears that both the parties before the ACR have invented a device to defeat the provisions of law governing the transfer and disposal of the immoveable property. If the course adopted by the respondents and proforma respondents is recognized by the courts, it will destroy the very fabric of the laws governing adverse possession and alienation of land and mischievous litigants will adopt this course with impunity which will also amount to misuse of the process of law. All these important aspects have not been considered by the courts below which has resulted in the miscarriage of the justice. 24. Otherwise the claims of the plaintiffs in both the suit are false in view of Mutuation no 104 attested by the Tehsildar on 26.11.1980. According to this mutuation Mangloo and his brother Kahnu, who had acquired ownership rights under BLEA Act over 80 kanals of land in Khasra No. 56, were in possession of only 54 Kanals and 15 marlas and the remaining land was sublet by them to Dhanu and others. As per contesting respondents they occupied land 15 years ago. This was stated by them and their defendants before ACR in 1992 and 1993 respectively which come to year 1977-78. If this fact is correct then why in mutuation No. 104 their possession was not recorded is a million dollar question. Why the tenant Dhanuand others were directed to be recorded tenants of Mangloo for 25 Kanals and 5 Marlas has not been explained by the contesting respondents. Had they been in possession of the land as claimed by them before ACR for last 15 years, then at least this fact would have been recorded in Mutation No.104. Their claim is bundle of lies and they have been falsely supported by the proforma respondents. The decrees are surely collusive and obtained with ulterior motives and to defeat the rights of the petitioners and the provisions of relevant laws referred herein above in respect of alienation of land. 25. Their claim is further falsified by Fard Badar prepared by Tehsildar Mulkh Raj on 26.4.1988. Though this Fard has been set aside but the fact remains that on the said date in presence of Mangloo, Dhanu and others had claimed that they were not cultivating his lad as tenant but that of Gurprtap Sing and others. 25. Their claim is further falsified by Fard Badar prepared by Tehsildar Mulkh Raj on 26.4.1988. Though this Fard has been set aside but the fact remains that on the said date in presence of Mangloo, Dhanu and others had claimed that they were not cultivating his lad as tenant but that of Gurprtap Sing and others. If the respondents in the year 1992 and 1993 have claimed that they were in possession of the land for last 15 years then at least before Tehsildar Mulakh Raj this fact must have been disclosed on 26.4.1988 as well. 26. Another factor which has escaped the notice of ACR is the ages disclosed by the respondents before him in order to find out as to whether they were speaking the truth or not. In his statement respondent Satish Kumar has recorded his age as 28 years on 26.11.92 which means that he was 13 years old in 1977 when according to him he occupied the land in question. Admittedly he was school going student and was resident of Samba. How he could occupy land in his tender age and attending school has not been considered by both the courts below. The case of other respondent Naveen Chander is not also different from respondent Satish Chander. He disclosed his Age 30 years before ACR which means he was 15 years old when according to him he occupied the land. He too was a student then and is graduate now. 27. Thus in the light of the discussion rendered herein above decrees for adverse possession could not be passed by the ACR which are as such declared as illegal. The order of the appellate court in not discussing the facts and law governing adverse possession has resulted in upholding of the illegal decrees and is not sustainable. 28. Now coming to the question of the Jurisdiction of the ACR in passing the decrees it is noticed that adverse possession was a question which used to be decided by the civil court generally. But after the implementation of Agrarian Reforms Act 1976 ( here-in-after called the Act) and amendment made in the year 1989 to Section 19 of the Act, the jurisdiction was given to the Collector under the Act to decide a dispute in which the party in possession pleads adverse possession against the recorded owner/intermediary. But after the implementation of Agrarian Reforms Act 1976 ( here-in-after called the Act) and amendment made in the year 1989 to Section 19 of the Act, the jurisdiction was given to the Collector under the Act to decide a dispute in which the party in possession pleads adverse possession against the recorded owner/intermediary. Under Section 18 of the Act Government was authorized to appoint Commissioner and joint commissioners Agrarian, Collector, Assistant Commissioner, Tehsildar and Naib-Tehsildar for exercising such powers within such jurisdiction as the Government may by Notification in the Government Gazette, specify. 29. Before the year 1991 certain officers from the above categories of officers were appointed for the purpose of exercising powers under various provision of the Act on original side as well as to hear appeal and revision. 30. By SRO 132 dated 1.4.1991, the copy of which has been submitted by the petitioners along with the written argument, in exercise of powers under Section 18 read with Section 19 of the Act and in suppression of earlier SRO 442 and 248 dated 17.7.2006 and 26.6.1989 respectively, every Deputy Commissioner was appointed as Collector with in his territorial jurisdiction for deciding all the matters to be dealt with by the Collectors, under the Act and Rules. This SRO was subsequently repealed by SRO 33 of 1993 dated 17.2.1993 by which Deputy Commissioner Kathua was specifically appointed as Collector for hearing the cases arising out of Section 19 of the Act. This SRO was also subsequently superseded by SRO 59 dated 3.2.1997. There is no need for making any reference to this SRO as decrees for adverse possession have been passed by ACR on 26.12.1992 and 17.4.1993 respectively. 31. As per sub-section 3 of Sec.19 of the Act, the Collector Agrarian has jurisdiction to decide suits for adverse possession. As per, Section 18 of the Act, Assistant Commissioner is subordinate to the Collector. As noticed, before 1991 Assistant Commissioners were exercising the power of Collector under the Act including Sec.19. But as per SRO 132 issued on 1.4.1991 the Deputy Commissioners within their territorial jurisdiction were appointed as Collectors for deciding the matters as Collector under the Act and Rules which includes sec.19 as well because powers were conferred upon the Dy. Commissioners in exercise of the powers under Sec.18 and 19 of the Act. But as per SRO 132 issued on 1.4.1991 the Deputy Commissioners within their territorial jurisdiction were appointed as Collectors for deciding the matters as Collector under the Act and Rules which includes sec.19 as well because powers were conferred upon the Dy. Commissioners in exercise of the powers under Sec.18 and 19 of the Act. After 17.2.1993 when SRO 33 was issued by the Govt., the Deputy Commissioner Kathua was to exercise the jurisdiction as Collector to decide the suit for adverse possession under Section 19 (3) (e) of the Act. This SRO remained in force unto 3.2.1997. 32. In nutshell it was only the Deputy Commissioner Kathua who had jurisdiction as Collector to hear the suit for adverse possession w.e.f. 1st April 1991 to 3.2.1997. 33. In the present case as noticed first suit was filed before ACR on 22.9.1992 and decided on 26.12.1992. Second suit was later on filed on 29.3.1993 and decided on 17.9.1993. Admittedly in the light of SRO 132 and SRO 33, ACR Kathua had no jurisdiction to decide the said suits. Rather it was the Deputy Commissioner who was competent to decide the suits for adverse possession under sec.19 (e) of the Act. Thus the decrees passed by ACR Kathus being without jurisdiction are null and void ab initio. 34. The appellate court was expected to take this legal aspect for consideration. But the appellate court failed to decide the jurisdiction of ACR when it was brought to its notice that by virtue of SRO 132 and 33 it was the Dy. Com. Kathua who had jurisdiction. By adopting this course mis-carriage of justice has occasioned and illegal decrees have been upheld. The appellate court has put its seal on the illegal orders passed by ACR. On this count the impugned order is required to be set aside. The findings of the court below that petitioners were not the necessary parties to the lis before ACR are not also sustainable. The findings in this regard are flimsy. Admittedly in the facts and circumstances of the matter referred in the memo of appeal and the revenue record brought on record by the parties, the petitioners are the owners of big chunk of land in Khasra No. 56. As per titmas, on the basis of which adverse possession was sought by contesting respondents the land belonging to petitioners is covered by such titmas. As per titmas, on the basis of which adverse possession was sought by contesting respondents the land belonging to petitioners is covered by such titmas. Under the garb of such titmas and the decrees passed mechanically by the ACR Kathua the contesting respondents with the connivance of proforma respondents are trying to occupy the land of the petitioners and especially the false records prepared by the concerned Patwari. How the Patwari had dared to prepare different Titmas when titma was already prepared when land was given to Mangloo and Kahnu under BLEA Act. It was the duty of ACR and appellate court to take this fact into consideration but they have failed to exercise such legal duty. Not only these authorities but all the revenue officers handling this case from time to time have damaged the wharf and wool of the case. Instead of concentrating on the legal matters and true facts and deciding the case properly they have made the case more complicated by giving wrong twist to the simple facts of the case. Thus the decrees passed in absence of the petitioners being necessary parties are not sustainable. Such decrees are not binding even otherwise on the petitioners. 35. As noticed Mangloo and Kahnu were given land under BLEA Act but inducted Dhanu and others as tenants. They were prohibited from doing so under Sec.24 of the said Act. Under this section if the land received under the said Act is sublet the whole of the land given to the tenants has to vest to the State. No attention has been paid to this legal position. Instead of escheating whole land of 80 Kanals to the State, Dhanu and others have been given free hand to deal with land measuring 25 Kanal and 5 Marlas as tenants contrary to the provisions of above Act and remaining land to be enjoyed by Manglu and Kahnu and their heirs who have in fact sold part of that land to the contesting respondents, who are property dealers as alleged by the petitioners, under the cover of false claim of adverse possession made by them in connivance with the heirs of Manglu and Kahna. This fact be taken note of by the concerned revenue officer who shall pass the appropriate order after hearing the effected parties. 36. This fact be taken note of by the concerned revenue officer who shall pass the appropriate order after hearing the effected parties. 36. Accordingly the revision petitions are allowed and the orders dated 26.12.1992 and 17.4.1993 passed by ACR, Kathua including the order of the appellate court dated 20.9.2001 are set aside. The copy of this order shall be placed with the connected revision petition. 37. Record of the court below be sent back and files of this Tribunal be consigned to record after due compilation.