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2011 DIGILAW 627 (JK)

Mohd. Younis v. J&K Special Tribunal

2011-11-09

J.P.Singh

body2011
1. The facts giving rise to the filing of this Petition may be stated thus:- The petitioners' predecessor-in-interest occupied land comprised in Field Survey No. 61, when, due to disturbances in the State of Jammu and Kashmir, the owners abandoned it. One of the co-owners, Ghani, Son of Gosha, migrated to Pakistan Occupied Area of the State whereas Abdul Aziz, the predecessor-in-interest of respondents, shifted his residence to Darhal-Rajouri. Abdul Aziz later claimed possession of the land others in the Court of Sub-Judge, Rajouri. It was decreed in the year 1958 holding the petitioners' predecessors as unauthorized occupants of the land. 2. The respondents, however, could not secure possession of the land despite Judgment by the Civil Court. They filed Application under Section 8 of the Evacuee's Administration of Property Act which was allowed on 29.09.1981 directing restoration of possession of respondents' share in land comprised in Survey Nos. 140, 335, 335/1, 340, 346, 349 and 253. Declaring share of Ghani Son of Gosha as Evacuee Property, the predecessor-in-interest of respondent Nos. 1 & 2 was permitted to retain the land as its allottee. 3. The possession of the land was still not delivered to the respondents and instead Mutation Nos. 758 & 872 were attested in favour of the petitioners under Sections 4 & 8 of the Agrarian Reforms Act taking the view that respondents' right in the land stood extinguished in view of the provisions of the Agrarian Reforms Act because they were not in possession thereof on the relevant date. These Mutations were, however, set aside on Appeal by Additional Deputy Commissioner, Rajouri and the matter Appellate Authority by Order dated 07.10.2002 remanding the matter again for further enquiry by Assistant Commissioner, Rajouri who, vide Mutation Nos. 2752 and 2753 conferred ownership rights on the petitioners. This order was set aside vide Additional Deputy Commissioner, Rajouri's Order dated 07.01.2006. The petitioners' Revision against Additional Deputy Commissioner's Order dated 07.01.2006 was rejected by the Jammu and Kashmir Special Tribunal vide its Order of May 7, 2009. 4. The petitioners have approached this Court questioning the Tribunal's Order whereby it upheld Additional Deputy Commissioner's Order dated 07.01.2006 setting aside Mutation Nos. The petitioners' Revision against Additional Deputy Commissioner's Order dated 07.01.2006 was rejected by the Jammu and Kashmir Special Tribunal vide its Order of May 7, 2009. 4. The petitioners have approached this Court questioning the Tribunal's Order whereby it upheld Additional Deputy Commissioner's Order dated 07.01.2006 setting aside Mutation Nos. 2752 & 2753 attested under Sections 4 & 8 of the Jammu and Kashmir Agrarian Reforms Act in respect of land measuring 10 kanals 17 marlas comprised in Khasra No. 335 and 1 kanal 15 marlas comprised in Khasra No. 335/1 min of Village Rampur Tehsil and District Rajouri. 5. According to the petitioners, the Tribunal has erred in not appreciating that Additional Deputy Commissioner, Rajouri's Order dated 21.07.1998, whereby, while remanding the case to property otherwise there is no bar to the Mutations under Appeal", operated as res judicata, the Revenue Authorities and the Special Tribunal, had, therefore, acted illegally in taking the view that the Jammu and Kashmir Agrarian Reforms Act was not applicable to the petitioners' case and the Mutations attested under Sections 4 & 8 of the Agrarian Reforms Act were unsustainable. It is pleaded by the petitioners in Paragraph No. 13 (k) of the Writ Petition that the provisions of Section 3 (k) of the Jammu and Kashmir Agrarian Reforms Act, 1976 were attracted to the facts of the case as the petitioners' residential houses existed in the land since decades. 6. In their Response to the Writ Petition, respondent Nos. 2 to 5 say that the petitioners are stark unauthorized occupants of land measuring 10 kanals 17 marlas comprised in Survey No. 335 and 1 kanal 15 marlas under Survey No. 335/1 min and they cannot, therefore, question the orders of the Special Tribunal and the subordinate Revenue Agency in view of the findings recorded by the Civil Court in their predecessor-in-interest's Suit No. 23/Civil which was decreed on 07.06.1958 holding the predecessor-in-interest of the petitioners as maintainable. 7. Considered the submissions of learned counsel for the parties, perused the Judgment and Decree of the Civil Court, the Orders passed by Assistant Custodian Evacuee Property, Rajouri, besides the orders of the Special Tribunal and Revenue Authorities subordinate thereto. 8. The petitioners' plea of res judicata has been dealt with by the Jammu and Kashmir Special Tribunal as follows:- "24. Considered the submissions of learned counsel for the parties, perused the Judgment and Decree of the Civil Court, the Orders passed by Assistant Custodian Evacuee Property, Rajouri, besides the orders of the Special Tribunal and Revenue Authorities subordinate thereto. 8. The petitioners' plea of res judicata has been dealt with by the Jammu and Kashmir Special Tribunal as follows:- "24. In the revision petition the finding given by the court below with regard to the facts mentioned hereinabove have not been disputed and even the petitioners have admitted that Ab. Aziz deceased was the owner of the half of the disputed land which is in their possession since Kharif 1971. The only question of law raised by petitioners is that court below was estopped from holding that the provision of Agrarian Reforms Act was not applicable to the present case when already in the earlier appeal it has been held that if the land is not evacuee property the provision of Agrarian Reforms Act will be applicable and there is no bar to mutation under appeal. In fact the petitioners are pleading that by rule of res judicata, the court below was not competent to hold that Agrarian Reforms Act is not applicable to the present case. 25. So the question of law that arises for consideration is as to whether the observations made by the 1st Commissioner Agrarian will operate as res judicata. Other question of law and public interest involved in this case are as under:- a/- Can the right, title and interest in land recorded and verified by the Circle Officer in Kharif 1971 in the name of person who is not a tenant extinguished and vested in the State; thereby that there must be a decision deciding the rights of the parties finally. In the present case the Ist Commissioner has simply made an observations, without assigning any reasons or discussing the facts of the case and the relevant law, that in case the land is not evacuee property, there is no bar to the mutation under appeal. This observation cannot be treated as decision on the part of the 1st Commissioner. This observation can be treated as a passing remarks or strictly as obitardict, and not the ratio decidinde. This observation cannot be treated as decision on the part of the 1st Commissioner. This observation can be treated as a passing remarks or strictly as obitardict, and not the ratio decidinde. It was incumbent upon the Ist Commissioner, by stating reasons that how on the basis of simple possession of person in kharif 1971, not being a tenant, provision of Agrarian Reforms Act are attracted. When the Ist Commissioner had remanded the matter for fresh inquiry he should have restrained himself from making such an observation. By putting such a rider he had not exercised his jurisdiction properly as well, because this rider was going to influence definitely the Inquiry Officer from giving his opinion regarding the application of the Agrarian Reforms Act. In this background, the observations of Ist Commissioner cannot be termed as decision and as such his observations cannot operate as res judicata." 9. In dealing the other question raised by the petitioners as to the applicability or otherwise of the Jammu and Kashmir Agrarian Reforms Act to the case in question, the Tribunal says as follows: "27. So far the other question of law and public interest referred hereinabove are concerned, the Agrarian Reforms Act is not applicable to the land which is occupied by a person not being a tenant in Kharif 1971 or to the prior period. The Ist and 2nd Commissioner have not been able to grasp the object and spirit of the Agrarian Reforms Act. Had they made little exercise by going through the definition of tiller, in my opinion they would have out rightly some of petitioners was shown to be in possession of the disputed land in kharif 1971 without stating that in which capacity the land was occupied by him. Neither the petitioners have come forwarded with a plea that they or their one of the predecessor was cultivating the land as tenant of Ab. Aziz. Rather in the inquiry conducted on remand by Ist Commissioner, the Tehsildar Rajouri recorded the statement of petitioner Mohd. Younis who categorically deposed that he or Bashir Ahmed had never paid any rent/revenue to the deceased Ab. Aziz admittedly the owner of the land. The Tehsildar as such had declared the petitioners as trespassers and rightly held that mutation under Sections 4 & 8 cannot be attested in their favour and recommended eviction of the petitioners from the land. Younis who categorically deposed that he or Bashir Ahmed had never paid any rent/revenue to the deceased Ab. Aziz admittedly the owner of the land. The Tehsildar as such had declared the petitioners as trespassers and rightly held that mutation under Sections 4 & 8 cannot be attested in their favour and recommended eviction of the petitioners from the land. Though he had no jurisdiction to pass the order of eviction but still his finding regarding the appellants being trespassers cannot be held to be illegal or incorrect. This fact rather escaped from the notice of the 2nd Commissioner or he failed to appreciate the reasons adopted by Tehsildar Rajouri for non-application of Sections 4 & 8 of the Agrarian Reforms Act. It was expected that in the light of statement made by the two petitioner Mohd. Younis referred hereinabove, the 2nd Commissioner ought to have upheld the finding of the Tehsildar, Rajouri but instead he up set the finding and remanded the case for fresh inquiry on irrelevant and immaterial points. How, the 2nd Commissioner was concerned with the adverse possession of petitioners when it is not their case, is not understandable. The Commissioner being a final authority under Agrarian Reforms Act is expected to be more acquainted and well-versed with the relevant law otherwise the people will never get justice and forced unnecessarily to go for endless litigation. 28. In my opinion the 3rd Commissioner Mr. A.D.Shanas appears to be well-versed with the relevant law as is evident from his decision. I place on record my appreciation for the 3rd Commissioner regarding his competency and knowledge of the relevant provision of law. Had such course had been adopted by other two who mishandled his case and mis applied Sections 4 and 8 of the Act to give undue benefit to the petitioners. It is noticed that Assistant Commissioner (Revenue) Rajouri contrary to the facts recorded in mutations challenged in this Tribunal that Tehsildar Rajouri has held that land is not evacuee land. The then Tehsildar Rajouri has not held this fact. His order on mutation attested by him re more reasonable and carry legal force as compared to 2nd Commissioner who without good reasons set aside the same. 29. It is further observed that 2nd Commissioner failed to appreciate the legal position discussed by Tehsildar Rajouri. Both orders of Tehsildar and 3rd Commissioner Mr. His order on mutation attested by him re more reasonable and carry legal force as compared to 2nd Commissioner who without good reasons set aside the same. 29. It is further observed that 2nd Commissioner failed to appreciate the legal position discussed by Tehsildar Rajouri. Both orders of Tehsildar and 3rd Commissioner Mr. Shanas are in conformity to the provision of relevant law. In fact it is Tehsildar Rajouri, who has correctly decided the matter remanded to him by the Ist Commissioner. His findings have been correctly upheld by Mr. Shanas, illegally set aside by 2nd Commissioner. There was no occasion to set aside the order passed by him denying conferment of ownership rights upon petitioner, who has illegally occupied the land belonging to predecessor-in-interest of private respondents. It is astonishing that there is no co-ordination among the different agencies dealing with the cases pertaining to land. This case reveals the sordid story of in subordination. The Assistant Custodian Rajouri failed to restore possession of and to the extent of half to Ab. Karim, as per the judgment of Deputy Custodian Jammu. By his slackness, he allowed the petitioners gain time who finally succeeded in obtaining ownership rights under Section 8 of the Act, who otherwise had occupied the land illegally in absence of Ab. Aziz owner, who failed to get justice during his life time, following by his sons Ab. Karim and his two brothers. Probably the 3rd generation of Ab. Aziz is getting justice after agony of 62 years. 10. The material placed on records by the petitioners indicates that the land in question is recorded as Gairmumkin is indicated as Gairmumkin Ror. This position was not disputed by the petitioners' learned counsel in view of the petitioners' admission in their Writ Petition where Section 3 (k) of the Agrarian Reforms Act is indicated attracted to the land in question which is stated having houses built thereon since decades. 11. In my view, there was no need for any lengthy discussion on the issue by the Tribunal and other Revenue Authorities as to whether or not the principles of res judicata were attracted in the case, in view of the concluded findings of the Civil Court that the predecessors-in-interest of the petitioners were trespassers in the land and which finding had attained finality. 12. 12. Having been held trespassers of the land in question by the Civil Court, much before the coming into force of the Agrarian Reforms Act in the State, the petitioners' Claim to ownership rights under the Jammu and Kashmir Agrarian Reforms Act, on the basis of their unauthorized occupation, could not, therefore, be entertained for acceptance by any Court, Forum or Tribunal. The Jammu and Kashmir Agrarian Reforms Act does not contemplate conferment of ownership rights on unauthorized therefore, be sustained and in this view of the matter, the findings and orders of the Additional Deputy Commissioner setting aside Mutation Nos. 2752 & 2753 recorded under Sections 4 & 8 of the Jammu and Kashmir Agrarian Reforms Act and the conclusion reached at by the Jammu and Kashmir Special Tribunal, cannot be faulted. This is additionally so because the Jammu and Kashmir Agrarian Reforms Act having no application to the land in question, Mutations under the provisions of the Act were, therefore, impermissible. 13. Even otherwise, there being no finding on merits as to the applicability or otherwise of the Jammu and Kashmir Agrarian Reforms Act, to the land in question, recorded by the Revenue Authorities, before passing of orders by the Additional Deputy Commissioner setting aside Mutation Nos. 2752 & 2753, mere reference in the earlier order that if the property involved was not evacuee property, there is no bar to the Mutations under Appeal, would not operate as res judicata, in that, the above reference does not partake the character of such a finding which would operate as res judicata. The detailed order passed by the learned Additional Deputy Commissioner and the conclusion reached at by the Civil Court holding the petitioners unauthorized occupants of the land in question. The respondents, having been dragged by the petitioners to this Court in unnecessary litigation, are entitled to costs. 14. Thus found without merit, this Writ Petition is dismissed with costs quantified at Rs. 10,000/-.