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2012 DIGILAW 303 (JK)

Jasbir Singh v. Ishar Singh

2012-06-01

Sanjay Gupta

body2012
1. This revision petition has been directed against the order 10.6.2006 passed by Court below, by virtue of which, appeal of the petitioners, against mutation no.978 Dt. 17.7.1985, attested under section 3A of agrarian reform act with regard to land measuring 5k 19 m under survey no. 423 min situated at Digiana, has been dismissed. 2. Petitioners have challenged the impugned order on the grounds that, order impugned is against law and facts. That as per Cabinet Order 578-C of 1954, every member of displaced family is entitled to share in the allotted land. That as per provision of rule 15-B of Cabinet Order 578-c 0f 1954, on account of death of original allottee or head of family, land devolves upon other family members in equal shares. That no will deed, can be executed with regard to allotted land. That Court below has fallen into error, while passing the order that appeal is time-barred. 3. Brief facts of the case as is evident from record are that, father of petitioners 1 to 3 and husband of petitioner no.4, namely Balwant singh, filed an appeal before court below with respect to mutation no. 978 dt. 17.7.1985, attested under section 3A OF agrarian reform act with regard to land measuring 5 Kanals 19 marals under survey no. 423 situated at digiana Jammu. 4. In appeal Balwant Singh stated that, his father namely Madan Singh was displaced person of 1947 and he was allotted land in accordance with Cabinet Order no. 578-C of 1954. That as per Form-A, in family strength of Madan Singh, the name of Balwant Singh (Appellant) was also been included,along with other family members. That appellant, Balwant Singh, was thus entitled to his share in land after death of father in term of rule 15B of cabinet order. 5. This appeal was filed on 3.6.2000 and along with appeal an application for condonation of delay u/s 5 of Limitation Act was also filed. In that application it has been stated that he came to know on 25.5.2000 and obtained copy on 30.5.2000 from Patwari. During proceeding before court below, appellant died and petitioners herein, were brought on record. 6. This appeal was filed on 3.6.2000 and along with appeal an application for condonation of delay u/s 5 of Limitation Act was also filed. In that application it has been stated that he came to know on 25.5.2000 and obtained copy on 30.5.2000 from Patwari. During proceeding before court below, appellant died and petitioners herein, were brought on record. 6. That Court below after hearing the parties passed the impugned order, thereby dismissed the appeal,on the grounds that, Balwant Singh, disintegrated from family and got separate allotment of land on his name and mutation no.165 u/s 3A 0f agrarian reform act of village Giddan Galian, has already been attested on his name, so he was not entitled for double allotment and any share in land allotted under cabinet order 578-c 0f 1954. 7. I have heard both the counsels at length and gone through the relevant law governing the matter. 8. Counsel for petitioner, while arguing the matter has elaborated all the grounds taken in memo of revision petition. In support of his contention he has cited following authorities:- 2004 (2) JKJ 530 -HC case title Amar Nath v. State of J&K in which,it is held as under:- Cabinet order no.578-c of 1954 Rule 15 -- Separation of family members -- Every members of family included in family strength of allottee entitled to equal share with other members -- Making a person head of family does not disentitle other member from their legal right or share in allotted land. 9. Whereas respondent counsel has supported the order and categorically argued that petitioner has separated from family and has got allotted other land. He has also argued that land under dispute has independently been allotted to ishwer Singh, so question of applicability of rule 15 B of cabinet order 578-c, does not arise. 10. I have given my thoughtful consideration to the whole aspect of the matter. 11. In present case, after going through record and written argument furnished by parties, it appears that Madan Singh,the Father of respondent no. 1 and grand father of petitioners 1 to 3 and father in law of petitioner no. 4, was allotted land measuring 32 kanals of land in village Nand pur and also land measuring 5 kanals and 19 marals under khasra no. 1 and grand father of petitioners 1 to 3 and father in law of petitioner no. 4, was allotted land measuring 32 kanals of land in village Nand pur and also land measuring 5 kanals and 19 marals under khasra no. 423 situated at Digiana, being displaced person along with other members, mentioned in form A. Perusal of photocopy of Form A, reveals that name of Balwant Singh along with his other two brothers namely Ishwer Singh and Man singh also exist. Deceased Madan Singh was named as head of family. 12. Thereafter family disintegrated and Balwant singh deceased, got separate allotment of land. A mutation no. 165 u/s 3.A of agrarian reform act of village giddan Galian, has also been attested in favour of Balwant Singh. 13. Counsel for petitioners has relied his case on Rule 15-B of Cabinet Order 578 -- c of 1954. It reads as under:- 15-B. Procedure regarding Survivorship (1) -- -- -- -- -- (2) if an allottee dies, his interest in the allotted and shall devolve on other members of his family in whose favour allotment of land has been originally made or regularized under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such allotment excluding those who may have died earlier or may have left the family on account of marriage or adoption. (3) Where an allottee family has disintegrated, partition may, after such enquiry as may be necessary and upon an application submitted to him, be confirmed by the Tehsildar, all the members of the family, being treated to have equal shares. Upon such confirmation, the Tehsildar may cause the allotted land apportioned amongst the families so divided. Such partition shall not entitle the families to any further allotment of land. -- -- -- 14. A conjoint reading of both provisions, it is evident that if a allottee, who has been allotted land in term of Cabinet Order 578-C of 1954, dies, his interest in the allotted land shall devolve on the members of his family, in whose favour of allotment of land has originally been made or regularized under these rules and on those who may have become members of family by way of marriage, birth or adoption after such allotment. If family has disintegrated, then the entire member shall be entitled to equal share in allotted land. 15. But before applying upon this rule, it is mandatory that land should have been allotted to deceased and that allotment should be intact at the time of his death. 16. In present case, there is order dt.10.9.1980, passed by Asst. custodian, Jammu, which speaks that, land measuring 5k 19 m under khasra no. 423 min situated at Digiana has been got cancelled by Madan Singh and same has independently been allotted on the name of respondent Ishwer Singh. The impugned Mutation no. 978 dt. 17. 7.1985, under section 3 A of agrarian reform act, has been attested on the basis of this order. 17. Father of petitioners 1 to 3 and husband of respondent no. 4, namely Balwant Singh, did not challenge the order of Asst. custodian Jammu, before any competent forum. Counsel for petitioners argued that order dt. 10.9.1980 passed by Asst. Custodian is legally not sustainable; because a co allottee cannot get, cancelled whole land, which has been allotted to a family, as per strength mentioned in Form A. I think this is not proper forum to decide this aspect of case. 18. Unless and until, order of Asst. custodian Jammu, relying upon which, impugned mutation no. 978 dt 17.7.1985 has been attested, remains intact, petitioners have no case. In this way rule 15.B of cabinet order 578-c of 1954 has no applicability. 19. I have gone through the citation produced by petitioners, there is no dispute with regard to law enumerated in citation. In present case as discussed above, rule 15 B of cabinet order no. 578 -- c of 1954 is not applicable, so citation is not applicable. 20. In view of what has been discussed the order impugned does not suffer from any legal defect. This revision accordingly is dismissed. Record of court below is sent back along with order.