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2012 DIGILAW 214 (JK)

Shiv Ram v. Mir Chand (Dead)

2012-05-03

Sanjay Gupta

body2012
1. This revision petition has been directed against the order dated 21-5-2004 passed by Additional Deputy Commissioner, with the powers of Commissioner Agrarian Udhampur, by virtue of which court below has dismissed appeal filed by petitioners against, the order dated 5-2-1984 of mutation no. 1329 attested Under Section 4 of Agrarian Reforms Act and order dated 17-2-1986 of mutation no. 1422 attested Under Section 8 of Agrarian Reforms Act with regard to land measuring 7 K -14 M under Kh. No. 591, 5 K-17 M under Kh. 593 and 19 K -- 8- M under Kh. 817 situated in village Barola Udhampur. 2. Petitioners have challenged the impugned order on the grounds that, they have been denied of right being of heard. In the memo of the petition, it has further been stated that, court below has not decided the question as to how entry of possession of petitioners was changed in Rabi 1976 in favour of deceased Mir Chand and Shanker. That Court below failed to apply section 13 (2) Agrarian Reforms Act,which prohibits the tenancy after 1-5-1973. That father of petitioners late Suneetu as well as Mst Kesri were occupancy tenant of land for the year Rabi 1970 and Kharif 1971, after the death of their father, petitioners became the occupancy tenant along with Mst Kesri,that appellate court failed to apply the law properly,because respondent Shanker was entered in to the possession as tenant of Mst Kesri for the first time in Rabi 1976, which is against mandatory of section 13(2). That Mst Kesri was a old lady and it was only the petitioner alone, who was cultivating the entire land. Since Kesri was issue less, the whole land was to devolve upon petitioner after her death. That entry in Rabi 1976 was wrong and does not confer any right. That Respondents who are related to Mst Kesri through her sister, managed the entry in their favour. That affidavit of Mst Kesri is not part of the record. 3. I have heard both the counsels at length and perused the record. I have also gone through relevant law dealing the matter in controversy. 4. From the perusal of record, it appears that petitioners herein,filed two appeals one against order dated 5-2-1984 of mutation no. 1329 attested Under Section 4 of Agrarian Reforms Act and order dated 17-2-1986 of mutation no. I have also gone through relevant law dealing the matter in controversy. 4. From the perusal of record, it appears that petitioners herein,filed two appeals one against order dated 5-2-1984 of mutation no. 1329 attested Under Section 4 of Agrarian Reforms Act and order dated 17-2-1986 of mutation no. 1422 attested Under Section 8 of Agrarian Reforms Act, with regard to land measuring 7 K -14 M under Kh. No. 591, 5 K-17 M under Kh. 593 and 19 K -- 8- M under Kh. 817,situated in village Barola Udhampur before Additional Deputy Commissioner Udhampur on 21-07-1989. It was mentioned in the appeal that, both the mutations have wrongly been attested. Appellate court on 21-05-04 dismissed both the appeals by way of common order. 5. Section 21(2) of A. R. Act deals with power of this Court regarding the revision. It reads as under:- (3) 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. (4) 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. 6. Bare perusal of this section, it is evident that revision lies only against the final order passed by the court below (Commissioner). This is not a single criteria, because final should also involve question of law or of public interest. 7. 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. 8. Agrarian Reforms Act is meant for providing land of landlord to tiller, who was cultivating the land in Kharif 1971. 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. 8. Agrarian Reforms Act is meant for providing land of landlord to tiller, who was cultivating the land in Kharif 1971. A tenant who was in cultivating possession of land and was paying rent to landlord would get benefit of section 4 and 8 of act. As per section 4 of Act rights, title and interest of land lord extinguishes to State, if he was not in cultivating possession of land in Kharif 1971. This follows by conferring right as prospective owner on tenants, who were in cultivating possession of land in girdawari of Kharif 1971. After that prospective owner is declared as owner of land in term of section 8 of agrarian reform act. 9. In this way crucial entry in cultivating column of girdawari of 1971 is sine quo for getting benefit under section 4 and 8 of agrarian reform act. This entry of tenancy cannot be changed after 1st may 1973 in view of section 13(2) of act. Any correctness, if has to be made in column of cultivation as tenant of girdawari of kharif 1971, a set procedure has been provided in rule 4. 4. Dispute relating to Girdawri entries. (1) Where, in the course of attestation of mutations under chapter IV, and party objects to the correctness of an entry in the Khasra girdawari (Whether made under the earlier rules of Standing Order No22), a Revenue office not below the rank of Tehsildar, shall, subject to the provisions of sub-rules (2), (3) and (4) and after giving an opportunity of being heard to all the concerned, conduct an enquiry on spot in respect of such mutation and give his finding thereon either confirming the impugned entry or indicating what entry should be made. (2) -- -- -- -- -- (3) -- -- -- -- (4) -- -- -- -- -- -- -- -- Bare perusal of this rule, it is apparent that, if during the course of attestation of mutation any party objects to correctness of girdawari entry, then a revenue officer not below the rank of Tehsildar, shall conduct inquiry on spot after giving notices to all person interested and only thereafter, shall give a finding with regard to such entry. 10. In present case, perusal of revenue record reveals, that in girdawari of kharif 1971, petitioners and Mst. Kesaari through whom,respondents are claiming, both have been shown in cultivation column,as tenants of half of the land measuring 7k 14m (kh. no. 591), 5k 17m (kh. no. 593)and 18k 8m (kh.no. 817). In this way both were entitled to half of land, while attesting mutation under section 4 and 8 of agrarian reform act. 11. Mutation attested under section 4 reveals that, at the time of attesting mutation under this section, entries of kharif 1971 were got verified and during verification Kessari admitted that,it is the respondents, who were in possession of half of land of her in kharif 1971, which has been shown on his name. Said Kessari was very much present at the time of attestation of mutation and she also put her thumb impression, as is evident from mutation. Many other persons of village were also present at that time, who also participated in enquiry and put signatures or thumb impressions on mutation. No one objected to this effect at that time. Mutating officer has given a specific finding to this effect. 12. So in this way, rule 14 has been complied correctily. 13. Accordingly respondents were conferred with rights of prospective ownership of land on 5.2.1984 by virtue of section 4 of act. Thereafter on 17.2.1986, right under section 8 were conferred on respondents. 14. The arguments of counsel for petitioner that, they were not called and heard at the time of attestation of mutation and provision of rule 4 of agrarian reform rules have not been complied is not tenable, because they were entitled to only half of land as per girdawari entry. 15. 14. The arguments of counsel for petitioner that, they were not called and heard at the time of attestation of mutation and provision of rule 4 of agrarian reform rules have not been complied is not tenable, because they were entitled to only half of land as per girdawari entry. 15. Argument of counsel for petitioners that, mutations have attested on mere affidavit of Kessari Devi, is also not tenable, because it is not so, because affidavit has been filled before appellant court, thereby substantiating that,respondents were cultivating land in 1971. 16. A bald statement that, petitioners were in cultivating possession of whole land is not tenable, because it is not supported with any evidence. Had petitioners been in possession of whole land prior to 1971, then they would have certainly applied for correction of girdawari of kharif 1971, much prior to attestation of mutations. 17. There is concurrent finding of two courts below that, respondents were in cultivating possession of land under dispute in kharif 1971. 18. A finding of facts recorded by a court and upheld by appellant court, cannot be interfered by Revisional court. I also don't find any perversity in order impugned. 19. Further it is very strange that, Mst. Kessari was not arrayed as party by petitioners, before appellant court, at the time of filling of appeals on 19.7.1988 and thereafter, when she was alive at that time. Mst. Kessari died on 7.5.2001, as is evident from death certificate placed before this court. If petitioners would have arrayed Mst. Kessarri as party in appeals, then appeals were certainly not maintainable. I think, this had been done deliberately by petitioners. Further petitioners did not rebut the affidavit of Mst. Kessari filed before appellant court. 20. In view of what has been discussed above this revision petition is stand dismissed. File of trial court be sent back along with this order. The file of this court be consigned to record.