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2012 DIGILAW 155 (JK)

Anchal Singh v. Suraj Parkash

2012-04-10

Sanjay Gupta

body2012
1. This revision petition has been directed against the order of respondent No.2, by virtue of which court below has accepted the appeal of respondent no.1, with respect to mutation No-892, attested on 09-07-2001 u/s 3-A of agrarian reform act, by Tehsildar Settlement, Hiranagar in favour petitioner herein, with regard to total land measuring 27K-17M, under Khasra No:-131 (12K-15M) Khasra No:-132 (9K-2M) and Khasra No:-133 (6K) situated at village Rajpura, Tehsil and District, Samba. 2. Petitioner has challenged the impugned order on the grounds that, the order impugned passed by respondent No.2 is against fact and law. That order impugned has been passed pre-dated. That respondent No. 2 has reviewed the order of his predecessor dated 07-03-2009. That order has been framed against the law of pleading. That order impugned has been passed in violation of this court order dated, 07-05-2010. 3. Heard both the counsels and perused the record of court below. Counsel for petitioner has elaborated all grounds mentioned in memo of revision petition. Whereas counsel for respondent has supported the order. 4. From the perusal of record it appears that one Dina Nath filed an appeal before court below, against mutation No.892 dated:-09-07-2001, attested by Tehsildar Settlement Hiranagar in favour of petitioner herein, under section 3A of Agrarian Reforms Act with regard to land mentioned above. 5. Appellant Dina Nath filed appeal on the grounds, that he is allottee of land in term of Govt. order no. 578-c 0f 1954, being refugee of 1947 and so mutation impugned has been attested wrongly and at his back. That appellant never moved any application for attestation of mutation under section 3A of Agrarian Reforms Act, that appellant never affixed his thumb impression on the application. That mutation bears his thumb impression which is not his thumb impression. That respondent could have put his thumb impression with inconvenience with Patwari and Tehsildar and thereby fictitious mutation has been attested. That Tehsildar failed to appreciate that, any displaced person who is in personal cultivation of allotted land shall be deemed to be occupancy tenant. That, there is no finding to this aspect. That revenue record has been tempered by the Revenue Staff, because Patwari has reported that, Anchal Singh is in possession of land since 1999 till Rabi 2001, which is incorrect. That appellant has no knowledge with regard to impugned mutation. That, there is no finding to this aspect. That revenue record has been tempered by the Revenue Staff, because Patwari has reported that, Anchal Singh is in possession of land since 1999 till Rabi 2001, which is incorrect. That appellant has no knowledge with regard to impugned mutation. That he left the village Rajpura due to death of his 16/17 relatives during past five years and appellant being old and elder member remained busy in performing last rituals. That appellant came to know about the impugned mutation a few months back and he received copy of Khasra Girdawari on 06-07-2002 and he received impugned mutation of 2/08/2002. 6. It further appears that, during the pendency of appeal, appellant Dina Nath died and present respondent Suraj Parkash was brought on record as legal heir of deceased Dina Nath. 7. I have given my thoughtful consideration into whole aspects of the matter and gone through law on the point. 8. From the perusal of the impugned order, it is evident that court below after setting aside the impugned mutation on various grounds has remanded the case back to Tehsildar for fresh enquiry. 9. Court below in his order has held that, the name of Dina Nath (deceased appellant) exists in cultivating column of revenue record of land in Kharif 1971 to Rabi 1993. Thereafter in Kharif 1993 to onward the name of Anchal Singh has been entered. As per mutation this name has been entered with the consent of Dina Nath, which appellant Dina Nath denied. Concerned Patwari has reported that, Girdawari entry of Dina nath is not regular and so, Dina Nath is not authorized to have occupancy right in terms of Section 3A of Agrarian Reforms Act. 10. It further appears that, on this report mutating Officer attested the mutation and he has mentioned that, on spot, it was found that, allottee Dina Nath was not in possession of land and no one raised any objection to this fact. 11. Court below has further held that,mutation itself is suspicious because, had Dina Nath would have applied for attestation of mutation and it was found that he was not in possession, then attesting Officer would have rejected the mutation. Further Anchal Singh the petitioner herein, never applied for correction of Girdawari and even no objection was filed by him on spot. Court below has further held that,mutation itself is suspicious because, had Dina Nath would have applied for attestation of mutation and it was found that he was not in possession, then attesting Officer would have rejected the mutation. Further Anchal Singh the petitioner herein, never applied for correction of Girdawari and even no objection was filed by him on spot. Court below also observed that Girdawari of 1996 and 1997 was on the name of allottee Dina Nath. In Rabi 1998 Girdawar of circle, changed the entry in register Fard Badar. This change of Girdawari was also found against the Agrarian Reforms Act and many circular, issued by Financial Commissioner (Revenue), that Patwari, Girdawari and Naib-Tehsildar were not competent to change the Girdawari. 12. Court below also held that, mutation was also not correct because, as per section 2 sub-clause 12 (g) of agrarian reform act old aged or infirmed person not cultivating the land personally, are presumed to be cultivated the land personally, if servant or hired laborers are engaged for cultivation by him, in present case, so though the Dina Nath was not cultivating the land personally was entitled to occupancy right under section 3A of Agrarian Reforms Act. 13. Section 21 of A. R. Act deals with power of this Court regarding the revision. It reads as under:- (9) 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. (10) 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. 14. Bare perusal of this section, it is evident that revision lies only against the final order passed by the court below (Commissioner) and question of law or public interest is involved. 16. Question of law means application or interpretation of legal principle or statues. 14. Bare perusal of this section, it is evident that revision lies only against the final order passed by the court below (Commissioner) and question of law or public interest is involved. 16. 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. 17. While appreciating the order impugned on these touch stones, I am of considered opinion that order impugned is correct and does not suffer from any infirmities of law and facts,because patwari,girdwar and even Tehsildar are not competent to change girdawari on their own, because,there is a statutory bar in term of section 13(2) of agrarian reform act. This provision specifically bar creation of tenancy after 1st may 1973 with regard to land mentioned in act. As per scheme of agrarian reform act and rules thereon,there is a initial presumption of correctness as regard entries in girdawari of 1971,unless rebutted. Whenever any change is to be effected, all the concern, whose are being affected by such change. This has to be done under rule 4 of act. 18. So mutating officer was totally wrong on relying these entries, made by patwari and girdawar,while attesting mutation. Further allottee of land raised a specific plea before court below that, he did not file any application for attesting mutation and he also denied his thumb impression on application. 19. Any mutation attested under agrarian reform act on basis of entries in girdawari/revenue record, made by a revenue official without any authority, incompetency and against statuary bar of law is, nonest in the eyes of law. Aggrieved person can challenge that mutation at any time, when he comes to know about this. 20. Further order arrived after appreciating facts emerging during the course of proceeding before court below, cannot be re-appreciated in Revisional jurisdiction, unless order is perverse in nature. In present case finding of court below is not perverse in nature and so, it does not amount to question of law or of public importance, which is sine quo for exercising Revisional jurisdiction in term of section 21 of agrarian reform act.. 21. Even otherwise remand order of court below is not revisable, because court below has not finally truncated the proceeding. 21. Even otherwise remand order of court below is not revisable, because court below has not finally truncated the proceeding. Matter is still alive, any party aggrieved of order of remand court has remedy to approach higher forum under law. 22. During course of arguments counsel for respondent has produced a paper cutting, which reveals that vigilance organization has registered a F.I.R against Tehsildar, girdawar patwari and anchal singh petitioner, with regard to fraudulent change in girdawari pertaining to land in dispute. 23. In view of what has been discussed above, this revision petition is dismissed as it does not suffer any infirmities of law or facts. File of court below is sent back along with a copy of this order. File of this court be consigned to record after due compilation.