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2009 DIGILAW 536 (JK)

Nek Ram v. Dewan Chand

2009-11-05

A.K.Shan

body2009
1. In this revision petition order dated 16.9.2006 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Udhampur (hereinafter called the Commissioner) has been sought to be set aside on the ground mentioned in the revision petition. Question of law involved is as to whether Agrarian Reforms Act is applicable to the land in question and the appellate court after holding the appeal time barred was competent to touch the merits of the case or not. 2. The brief history of the case as traceable from the record in nut shell is as under:- There are two parcels of land under survey No:1617/140 (6 marlas) and 141 (8 marlas) in village Hartaryan Tehsil Ramnagar District Udhampur. The petitioners claim that they are in possession of the same from the time of their forefathers in which two kotha existed in which they are residing till date, but the respondent has managed a false entry in the revenue record showing him in possession of the land. According to the petitioners, at their back the then Tehsildar Agrarian Reforms Ramnagar attested mutation No: 694 dated 25.1.1981 under Section 4 of the Agrarian Reforms Act (here-in-after referred the Act), and declared the respondent as prospective owner, about which they came to know only on 3.11.2005, when respondent asked them to hand over the vacant possession of the land, as ownership rights under Section 8 of the Act have been conferred upon him. 3. Pursuant to this information the, petitioners filed two appeals before the Commissioner who dismissed the same as not only time barred but also on merit. 4. Aggrieved by the decision of the appellate court the petitioners have assailed the same on the ground referred here-in-above in the beginning of this order. It has been additionally pleaded that the attesting officer failed to conduct an enquiry on spot and did not consider the fact of the petitioners being in possession of the disputed land. It is next pleaded that appellate court without hearing the petitioners decided the appeals in favor of the respondent. 5. Another plea of the petitioners is that the appellate court has incorrectly decided the appeals as time barred where as the appeals were filed immediately after acquiring the knowledge of attestation of mutation. 6. I have heard the learned counsel for the parties and examined the record meticulously. 7. 5. Another plea of the petitioners is that the appellate court has incorrectly decided the appeals as time barred where as the appeals were filed immediately after acquiring the knowledge of attestation of mutation. 6. I have heard the learned counsel for the parties and examined the record meticulously. 7. The learned counsel for the petitioners has submitted that the question of limitation has not been properly decided by the appellate court and even presuming the same has been decided properly, the appellate court was not competent to discuss the merit of the case which has been done in the present case, vitiating the whole proceedings. 8. To the contrary the learned counsel for the respondent submitted that his client was in possession of the land in question in Kharif 1971 which is crucial date for grant of benefit emanating from the provision of Act and the entry of respondent is correctly recorded in Kharif 1971 and the attesting officer has made no mistake in attesting mutation under Section 4 of the Act and declaring the respondent as prospective owner. According to him any change in the Khasra Girdawari after 1989 has been banned by the Government and if the petitioners have succeeded in changing the entries in 2005 the same is non est and illegal. 9. Coming to the point of dismissal of appeals on the ground of limitation, the learned counsel for the respondent submitted that the observations made in this regard by the appellate court are proper because the father of the petitioners was present at the time of attestation of mutation under section 4 of the Act and his sons i.e. petitioners are debarred from pleading that mutation was attested in their absence. 10. I have given thoughtful consideration to the arguments advanced by the learned counsel for the parties and examined the record minutely. 11. Before taking into consideration the arguments advance at bar, it will be apposite to make reference to Khasra Girdawari for Kharif 1971 which is in the file of the court below. As per said Khasra Girdawari the land in question belongs to Kripoo and Beli Ram which was sold by Beli Ram to the respondent and accordingly the land has been shown in possession of the respondent as vendee. 12. As per the Act the entries in Kharif 1971 are presumed to be correct unless proved otherwise. As per said Khasra Girdawari the land in question belongs to Kripoo and Beli Ram which was sold by Beli Ram to the respondent and accordingly the land has been shown in possession of the respondent as vendee. 12. As per the Act the entries in Kharif 1971 are presumed to be correct unless proved otherwise. It is the entry made in Kharif 1971 which is taken into consideration as authentic for giving benefit under the Act to the persons who are cultivating the land as tenants. If it is so then respondent was in possession in Kharif 1971 as a vendee i.e. as owner and not as tenant. It is strange that despite this fact even in Jamabandi 1968-69 the respondent is shown as non-occupancy tenant of Kirpoo Ram and Beli Ram in column no 5. But at the same time rent payable is shown in cash in column no. 9 on account of sale deed. If it is so then respondent was in possession of the land as vendee i.e. owner and not as a tenant. It is strange that despite this fact the respondent has been declared as prospective owner thus conferring double ownership upon him which law does not recognize and not even the Act. 13. Thus it was incumbent upon the concerned Patwari who submitted the report to Tehsildar and Tehsildar Agrarian himself to have examined the entries made in Khasra Girdawari for Kharif 1971 and Jamabandi 1968-69 minutely before attesting the mutation under sec. 4 of the Act. Had this course been adopted mutation under Sections 4 or for that purpose u/s.8 could never have been attested in favour of the respondent. This has resulted in the passing of an illegal order. 14. It is on the basis of incorrect report made by Patwari and on account of negligence on the part of the of Tehsildar Agrarian in looking to the actual entries made in Khasra Girdawari for Kharif 1971, mutations under Sections 4 and 8 of the Act have come into existence which on their basis are illegal and against the provision of the Act. 15. Now the question arises as to whether illegality of mutation has any bearing with filing of time barred appeals and the p;ea of the petitioners can be accepted that mutation under sec. 4 of the Act was attested at their back. 16. 15. Now the question arises as to whether illegality of mutation has any bearing with filing of time barred appeals and the p;ea of the petitioners can be accepted that mutation under sec. 4 of the Act was attested at their back. 16. The presence of the father of petitioners at the time of attestation of mutation under Section 4 of the Act is not denied by the petitioners. According to common Para 6 of appeals, father of appellants was not in a position to understand whether the land under appeals has also been directed to be vested in State and respondent made the prospective owner of the land. How their father put his signature on the mutation without acquiring the knowledge of the contents of mutation does not make appeal to common sense. Why he failed to inform his children to acquire the knowledge of contents of mutation during his life time has not been explained by petitioners. Thus appellate court has not made any mistake by holding that appeals were time barred. However matter does not end here. 17. As per Rule 48 of the Act, the provision of Code of Civil Procedure regarding appeals from original decree shall except as provided here-in-after in the Chapter 9 of the said Rules and subject to the provision of the Act, apply mutatis mutandis to all appeals under the Act. In this Rule the words, except as provided here-in-after in Chapter 9, have great relevance while applying the provision of Order 41 of CPC, to the appeals under the Act. In other words application of Order 41 is controlled and restricted by Rule 48 supra. The restriction is contained in Rule 52 which specifically provide that when appeal is dismissed on the ground of limitation, the appellate authority shall, if he be of the opinion that order under appeal is one which should be revised, submit the case through proper channel to the revisional authority i.e. this Tribunal, with his report. 18. Thus in the light of Rule 42 and Rule 52 the matter does not end by dismissing the appeals as time barred. In fact these Rules have been introduced for taking care of an illegality grossly committed by the attesting officer under the provision of the Act. 18. Thus in the light of Rule 42 and Rule 52 the matter does not end by dismissing the appeals as time barred. In fact these Rules have been introduced for taking care of an illegality grossly committed by the attesting officer under the provision of the Act. If the illegality is patent then the appellate authority after holding the appeals as time barred, has to make reference to this Tribunal for rectifying the illegality committed by the attesting officer. The Legislatures in their wisdom have introduced these two Rules keeping in view certain situations in which illegal orders are passed by the officers attesting the mutations and in some cases without jurisdiction i.e. not in accordance to the provisions of the Act which may result in grave injustice to either of the parties to the litigation requiring the same to be set aside by this Tribunal even in time barred appeals. 19. In some cases mutation under Sections 4 are attested for whole of the village and as such it may practically not be possible for a person before the attesting officer to be aware of the effective order passed by such officer. This may happen on account of illiteracy or rustic nature of simple villagers. This is another reason for incorporation the above exceptional Rules even after declaring that O. 41 of C.P.C. applies to appeals under the Act, whereas the said Order does not permit to adopt the procedure laid down in such Rules. 20. Had their been intention on the part of Legislatures to apply strictly Order 41 of CPC, then there was no necessity of adding superlative clause in Rule 48 and Rule 52 itself. Thus the application of Rule 41 CPC is controlled to the extent of the scope mentioned to Rule 52, which deals mainly with time barred appeals. Thus an appellate authority under the Act cannot dismiss the appeal only on the question of limitation. The appellate authority under the Act is legally bound in such cases to look into the legality and validity of the mutation attested under the Act and in case any illegality or invalidity is noticed, the appellate authority is mandated by Rule 52, to refer the matter to the revisional authority i.e. this Tribunal. 21. In the present case no such exercise has been undertaken by the appellate authority. 21. In the present case no such exercise has been undertaken by the appellate authority. Rather the appellate authority has failed in discharge of the duty imposed upon it by Rule 52 and committed an error of law, making the impugned order totally illegal. 22. As already noticed, in the present case respondent is recorded as vendee of the land in question in Kharif 1971 of Khasra Girdawari, on account of having purchased land from one of the co-owner, Beli Ram and thus having absolute owner in the eyes of law. The Act is not applicable to the vendee of any land, whether purchased before or after the year 1971. The vendee of land by no stretch of imagination can be treated, termed or declared as tenant for conferment of ownership right upon him under the Act, nor can such land vest in the State under Section 4 of the Act. 23. Thus mutation attested under Sections 4 of the Act declaring the respondent as prospective owner and then attesting mutation under section 8 conferring rights of ownership upon him are both illegal and not sustainable. 24. Now the question arises as to whether this Tribunal can set aside the impugned order by allowing this revision petition. In the present case no illegality has been committed by the appellate authority in holding that appeals were time barred. What have in fact escaped the notice of the said court are the Rules referred herein above. In case of appeal properly dismissed as time barred, if the appellate court finds that order passed by the subordinate officer suffers from an illegality or is in conflict with the provisions contained in the Act, the same is required to be referred to this Tribunal under Rule 52 for rectification. 25. In this background the order impugned is set aside and the matter is remanded back to the appellate authority for taking into consideration the relevant provisions of law discussed by this Tribunal and making reference as provided under Rule 52 supra so that under said rule this Tribunal can exercise revisional authority on receiving such report. The parties are directed to appear before the appellate court on 8.12.2009. 26. File be consigned to record after due compilation.