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2012 DIGILAW 120 (JK)

Prithivi Sigh v. Kuldeep Singh

2012-03-26

Sanjay Gupta

body2012
1. By virtue of this order, I am deciding to revision petitions filled by different petitioners, as both have been clubbed together vide order passed in case title Bishamber Dass and others v. Onkar singh and others on 19.2.2010. Both revisions involve same land and mutation no.980 attested on 8.2.1983 by mutating officer Tehsildar, under section 7 of agrarian reform act. 2. First revision petition has been directed against the Order of Commissioner Agrarian Reforms Samba (Addl. Deputy Commissioner Samba) dt. 2.9.2009, by virtue of which Court below has allowed the appeal of respondents, against mutation no. 980 dated. 8.2.1983 attested by Tehsildar Samba, u/s 7 of Agrarian Reforms Act, 1976, with regard to the land measuring 25 kanals 15 marlas comprising Khasra No. 164 and 165 situated at village Rakh Amb Tali Tehsil and District. Samba and remanded the case back to Tehsildar for denovo enquiry. 3. Petitioners have challenged the impugned order on the grounds that, respondents have no concern over the land covered under Khewat No.17 and Khata No. 52,53 and 54 situate at village Rakh Amb Tali Tehsil and District Samba. That name of respondents predecessors Ravail Singh and Hamil Singh does not exist in Khata No. 53 and in Khewat no. 17. That order impugned is bad in eyes of law as Court below has decided the appeal and an application for condoning the delay together. That delay in filing the appeal was 25 years, which has been condoned by Court below without any sufficient reasons. That mutation no. 980 dt. 8.2.1983, by virtue of which, land has been resumed to the petitioners, does not suffer from any legal infirmity. That there is a big chunk of land and Tehsildar Samba resumed land in question only in favour of petitioners. That Tehsildar while attesting the mutation no. 980 has clearly mentioned that land measuring 51 kanals 10 marlas out of which, Dhani Ram and others have been shown to be owners in possession of half of the land vide mutation 914 u/s 4of Agr. Ref. Act and as petitioners deposited the lagan under sub section 2 of section 7 of Agr. Ref. Act, are thus entitled resumption for land u/s 7 of the Act. That Court below after hearing has set aside the mutation order and remanded the case to Tehsildar Samba without any reason. 4. Ref. Act and as petitioners deposited the lagan under sub section 2 of section 7 of Agr. Ref. Act, are thus entitled resumption for land u/s 7 of the Act. That Court below after hearing has set aside the mutation order and remanded the case to Tehsildar Samba without any reason. 4. Counsel for the petitioners while arguing the matter has elaborated all the grounds mentioned in revision petition. He has also submitted written arguments thereby submitted addl. arguments. 5. Whereas a counsel for the respondents have supported the impugned order and has taken a primary stand that revision against remand order is not maintainable. He has further argued that no question of public importance or of law points has been involved. Order is based upon finding of facts, which cannot be disturbed in revision. 6. Perusal of records reveals that, respondents herein filed and appeal before Court below against order dated 8.2.1983 of Tehsildar Samba passed on mutation No. 980 attested u/s 7 of Act, on the grounds that their grandfather Ravial Singh was co-owner in Khewat no. 7 and had submitted resumption application along with other co-owner for resumption of land from the tenant of land as per their share. It has further been stated in appeal, that names of their predecessors, namely Ravail and Singh and Hamil Singh also exist in Jamabandi for the year 1987-88-BK in Khewat No. 16 and Khasta no. 51. The name of Ravail Singh also exists in Jamabandi of 1966-67 under Khata No. 53. 7. That while completing the Col no. 8 of mutation under appeal, the name of Ravail Singh has been left by Patwari concerned. In the report Column Patwari reported that Sardar Singh and other co-sharers submitted resumption application within time and so ex-owner were entitled to resume the land to the extent of half of the land under the provision of Agrarian Reform Act. That Tehsildar passed order for resumption of land in favour of Sardar Singh and other for Kh. No. 164(18 ks-05 marklas) and Kh. No. 165 (07 Kanals-10 Marslas) total measuring 25 kanals 15 marlas. 8. That this mutation was attested at the back of the appellants and only one of the sons of Sh. Kabla Singh been shown present. Whereas there were so many ex- land lords, who were entitled for resumption of land and those were not called. No. 165 (07 Kanals-10 Marslas) total measuring 25 kanals 15 marlas. 8. That this mutation was attested at the back of the appellants and only one of the sons of Sh. Kabla Singh been shown present. Whereas there were so many ex- land lords, who were entitled for resumption of land and those were not called. That most of them had expired at the time of attestation of mutation and neither their legal heirs were not brought on record nor was an opportunity of being heard given to them. That Patwari concerned completed the Col. No. 8, in connivance with one of the co-sharer namely Bisheshar Singh S/O Kabla Singh, whereas said person was not son of Kabla Singh. That Tehsildar while attesting the mutation did not follow the procedure recorded under law. That Tehsildar did not examine the record as well as resumption form, which was submitted by Ex-land lords jointly. 9. The Court below, after hearing the parties, passed a detailed order, whereby condoned the delay and set aside the mutation and remanded the case back to Tehsildar for denovo enquiry on grounds that names of predecessor of appellants was existing in cultivation column of jama-bandhi 1966-1967, as share holders and application for resumption was filled within time, so impugned order dt. 8.2.1983 with regard to resumption of land in favour of respondent under section 7 of agrarian reform act was bad. 10. I have given thoughtful consideration to the whole aspect of the matter. I have also gone through the relevant law pertaining to matter in question. 11. This court derives power of revision under section 3 of special tribunal act 1986 read with section 21 of A. R. Act 1976. Section 21 of act reads as under:- (5) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. Section 21 of act reads as under:- (5) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. (6) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant Commissioner has passed orders in respect of evacuees land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit; Provided that no order shall be passed against any party without affording that party an opportunity of being heard. 12. Bare perusal of this section, it is evident that revision lies only against the final order passed by the court below (Commissioner) that too involving question of law or public interest is. Order arrived after noticing of facts cannot be interfered unless, it is perverse in nature. 13. Question of law means application or interpretation of legal principle or statues. It involves the interpretation of principle that are potentially applicable to other case. It relates to determination of what is law, how it is applied to facts of case. It is purely legal in contention. 14. Final order is that order, which finally determines some legal right of parties. 15. The Agrarian Reform Act. of 1976 was brought into existence to extinguish relationship between land-lord and tenants. The scheme was formulated as to how and in which manner this relationship comes to an end. In order to get benefit of section 4 and 8 of Act, it has to first establish that there was relationship between parties of that land lord and tenants. The tenants who was in cultivating possession of land of Girdawari of land of 1971 and was paying rent to land lord would be entitled to get the benefit u/s of 4 of the Act. After the land is extinguished to State u/s 4 of Act, there comes right of land lord for getting land resumed in his favour under the provisions of section 7 (2) of Agrarian Reform Act. 16. After the land is extinguished to State u/s 4 of Act, there comes right of land lord for getting land resumed in his favour under the provisions of section 7 (2) of Agrarian Reform Act. 16. In present case a finding of facts has been recorded and which is also evident from record that, predecessor of respondents herein were co- land lords and they applied for resumption of land u/s 7 of Agrarian Reforms Act within time. So it was mandatory on behalf of attesting officer to call them or to their legal heirs at the time of attesting mutation no. 980 under section 7 of Agrarian reform act on 8.2.1983 in favour of petitioners. 17. Further law is settled that, if any mutation is attested without calling the interested person amounts to nonest in eyes of law. Any order, which is nonest in eyes of law, can be challenged by aggrieved person, when he comes to know. So court below has not done illegality in condoning the delay. 18. By remanding the case back to Tehsildar for fresh inquiry, the court below has not finally decided any right of parties. Matter is still alive and aggrieved party has every liberty to challenge any order passed by remand court. 19. In this way, I don't find any legal infirmity in order impugned in first revision petition. Order is also not perverse in nature. 20. Second revision petition has been filed by the petitioners against the order of Joint Agrarian Reforms Commissioner Jammu dated 29.3.07, by virtue of which he has dismissed the appeal filed against order of Tehsildar passed in mutation No.980 dated 8.2.1983 attested U/S 7 of the Agrarian Reforms Act. 21. Petitioners have challenged the impugned order on the grounds that, the order impugned is bad in the eyes of law. That Court below has held that appeal is time-barred as it has been filed after 25 years of passing of impugned order. That Court below has not bothered to consider the Fard badar and has not discussed authorities produced by them. That order of Court below is not according to law. 22. Perused the records. Heard both the counsels and also considered written arguments put forth by respondents. 23. From the perusal of records, it reveals that petitioners herein filed an appeal against respondents against order dated. That order of Court below is not according to law. 22. Perused the records. Heard both the counsels and also considered written arguments put forth by respondents. 23. From the perusal of records, it reveals that petitioners herein filed an appeal against respondents against order dated. 8.2.83 passed by Tehsildar Samba with regard to land measuring 25 kanals 15 marlas situated at village Rakh Tehsil Samba u/s 7 of Agr. Reforms Act. In the appeal, it has been stated that order under appeal was passed at the back of appellant. That parties are co-sharer and are owners of land in question half share. That order was passed on the name of respondent excluding the name of appellant. That half of the land has been resumed under section 7 of A R Act thereby depriving half share of appellant. That it was only on 6.7.2000 they came to know from Patwari about impugned order along with the appeal, an application for condonation of delay was also filed. 24. Court below after hearing the parties dismissed the appeal being time-barred and on the ground that landlord has given consent. 25. Now law is clear that any mutation attested at the back of interested person, that mutation is termed as nullity in eyes of law and in that eventuality, period of limitation should begin from the date of knowledge. Law with regard to limitation is not so rigid, because some time meritorious cases go un heard on limitation account. If sufficient cause is shown than court should be liberal in condoning the delay. Sufficient cause vary from case to case. It is fact, which court is require to collect after appreciating pleading of parties.. 26. In present case court below has not properly appreciated the facts and law on the point of Limitation. Further fact of co landlord with respect to land in dispute has not been denied by any party. 27. In view of what has been discussed above, first revision is dismissed and order impugned is upheld. Second revision is accepted and mutation is set aside. In this way in order to avoid multiplicity of litigations and in interest of all the parties in both revision petitions, Tehsildar Samba is directed to conduct denovo enquiry with regard to mutation attested under section 7 of act and pass fresh order accordingly. Second revision is accepted and mutation is set aside. In this way in order to avoid multiplicity of litigations and in interest of all the parties in both revision petitions, Tehsildar Samba is directed to conduct denovo enquiry with regard to mutation attested under section 7 of act and pass fresh order accordingly. Tehsildar is further directed to provide full opportunity to all parties and shall ensure to complete enquiry expeditiously. A copy of this order be placed in each file. 28. Files of the court below are sent back along with a copy of this order. The files of this court be consigned to record after due completion