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2012 DIGILAW 468 (JK)

Gh. Mohd. v. Hirdey Nath Adopted

2012-07-27

Sanjay Gupta

body2012
1. Petitioner has challenged the order passed by Financial Commissioner J&K with powers of Agrarian Reform Commissioner J&K Dated 9.12.2009, by virtue of which appeal of petitioner against the order passed by Tehsildar Pulwama Kashmir dt. 30.8.2006 has been dismissed. 2. Petitioner has stated in memo of revision petition, that land under survey No. 124 min of Village Tengpuna Pulwama have been subject matter of mutation 686, had been recorded under the name of petitioner and Performa respondent from Kharief 1971. That said Survey No. 124 originally belonged to Mst. Fata Daughter of Ghulam Qadir. That after the demise of Mst Fata, land devolved on her daughter Mst Rahti, the only daughter and mutation no. 807 was attested. That land thereafter was gifted in favour of petitioner and Performa respondents and accordingly revenue record was attested. That since correction of girdawri of 1971 was involved, so neither Mst. Rahti or anybody having right to raise finger. That the contesting respondent Hirdey Nath, filed an appeal before Commissioner Agrarian Reforms J&K and on said appeal the matter was remanded for passing fresh order. This order was upheld by J &k Special Tribunal on dated 24.5.2004. 3. That by virtue of remand order, the mutating Officer was directed to see the veracity of agreement which has been executed in favour of respondent No. 1 Hirdaynath. That on said remand order, the mutating Officer passed order in favour of respondent no. 1. That petitioner challenged the said order by filing appeal and his appeal has been dismissed on 9.12.2009. 4. Now petitioner has challenged the said order on the grounds that order is not according to law. That respondent no. 1 is stranger. 5. I have heard both the counsels at a length and perused the record. Counsel for the petitioner has elaborated all the points taken in revision petition during the course of arguments. Contesting respondent has supported the order impugned. 6. Brief facts necessary for deciding the matter are that, land measuring 02 kanals 16 maralas under Khasra No, 124 situated at Village Tengpura Pulwama, was recorded as proprietary land under self cultivation of Mst. Fata in the year 1965-66. This land came into possession of Mst.Khatija Khana Nasheen daughter of Ahad Dar married with Shabnam Mir as Khana Damad, as is evident from Record of right ( Misal Haqueet ). Mst. Khatiji had also raised construction on land. Fata in the year 1965-66. This land came into possession of Mst.Khatija Khana Nasheen daughter of Ahad Dar married with Shabnam Mir as Khana Damad, as is evident from Record of right ( Misal Haqueet ). Mst. Khatiji had also raised construction on land. She entered into agreement to sell part of land measuring 6-1/2 marals, with respondent no. 1 Hirdey Nath, on dated 10.1.1981, against consideration amount of Rs. 3000/-. The possession of land was also given to Hirdey Nath. 7. After the death of daughter Khatija, the land was got mutated in favour of her sons Ghulam Mohd, Mohd Maqbool and Bashir Ahmad. Mutation no, 686 dt. 4.1.1984 of SEHAT INDRAJ, was attested in their favour. Subsequently mutation no. 974 was attested in favour of petitioner others, on the basis of oral gift. 8. Hirdey Nath challenged the mutation no. 686 (Sehat Indraj Mutation) before Financial Commissioner to the extent of six and half marlas of land. Ld. Financial Commissioner set aside the mutation to the extent of six and half marlas and remanded the case to Tehsildar for de novo enquiry with regard to mutation. This order was upheld by Special Tribunal J&K on 5.9.2005. 9. On this remand order Tehsildar conducted detail inquiry and held that Hirdey Nath was in peaceful possession of land since 1981 by virtue of agreement to sale, executed between him and Khatija. That in 1990, due to unusual circumstances respondent no. 1 migrated to Jammu leaving behind his immovable property. During the intervening time, petitioner encroached upon the land treating it as their own property by virtue of mutation no. 686. 10. Hirdey Nath respondent no.1, agitated the matter with regard to encroachment of his land before District Magistrate Pulwama, who on 24.5.2005, ordered that property be taken into custody by N. Tehsildar Pulwama. This Order was got implemented and at present land is with N.T. Pulwama. 11. During de novo inquiry, Tehsildar also visited on spot and found that there is semi dilapidated structure on the land.Accordingly Tehsildar came to conclusion, that land measuring six and half marlas had been taken by respondent no. 1 from Khatija by virtue of agreement dt.10.1.1981 after paying sale considerations amount of Rs. 3000/- and he was given possession and remained in possession till 2004. But revenue entry is not on the name of Hirdey Narth. 1 from Khatija by virtue of agreement dt.10.1.1981 after paying sale considerations amount of Rs. 3000/- and he was given possession and remained in possession till 2004. But revenue entry is not on the name of Hirdey Narth. Tehsildar concluded that, delivery of possession and delivery of documents are necessary for transfer of property. In this case deliver of possession has taken place but delivery of document remained pending. Hirdey Nath has remedy to complete his document in Civil Court. This order was challenged by petitioner before Court below, who upheld the order of Tehsildar and dismissed the appeal. 12. The concluding para of order is reads as under; I have heard and considered the arguments of both the counsel and also gone through the record available on file. It is clear that the dispute is between a buyer and a seller and has nothing to do with the provisions of Agrarian Reforms ct 1976 as agreement to sell has also been entered into between the parties in the year 1981 and has not relevance with the possession of the disputed land in the crucial year during Kharief 1971 and the provisions of Agrarian Reforms Acts are not applicable. Therefore the present appeal has been wrongly been filed under Agrarian Reforms Act and the same is totally misconceived. Further there is clear cut finding that respondent Hirday Nath had been in continuous possession of the disputed land right from the year 1981 onwards as established by the Tehsildar Pulwama in his report dated. 30.8.2009, therefore, there is no merit in the appeal which is dismissed. Announced 09.12.2009 (DR. Ravi K.Jerath) Financial Commissioner (Rev.) With powers of Commissioner Agr. Reforms J&K Jammu 13. Bare perusal of this order, it is evident that court below has dismissed the appeal being not maintainable, on the grounds that provision of agrarian act were not attractable in the case. 14. I have given my thoughtful consideration to whole aspects of matter and gone through relevant law dealing the subject. 15. Agrarian Reforms Act is meant for providing land of landlord to tiller, who was cultivating the land in Kharif 1971.So a relationship of land lord and tiller between parties to litigation is sine-quo for, deciding the matter, by revenue officers appointed u/s 18 of agrarian reform act 1976. 15. Agrarian Reforms Act is meant for providing land of landlord to tiller, who was cultivating the land in Kharif 1971.So a relationship of land lord and tiller between parties to litigation is sine-quo for, deciding the matter, by revenue officers appointed u/s 18 of agrarian reform act 1976. If, there is no relationship of landlord and tenant between parties to litigation, then revenue officers under act, has no power to adjudicate the matter. 16. In present case, if we go through the facts, it is apparent that, there exists no relationship of landlord or tenant between parties. Apparently dispute appears to be in between seller and purchaser with regard to 6 and half marals of land. This aspect of matter can be resolved before civil court. Further record of rights reveals that Mst. Khatiji from whom respondent no.1 has got land by virtue of agreement to sell executed on 10.1.1981 had taken land under Survey No. 124-min, measuring 2 kanals 16 marlas from its owner Mst. Fata prior to 1975 and had constructed residential house. In this way she was competent to execute sale agreement. Petitioner and pro forma respondent being sons of Khatiji, at this stage cannot argue that, their mother was not competent to execute agreement. 17. Order of financial commissioner dt. 24.5.2004 passed in appeal filed by respondent against petitioner herein, clearly reveals that Mutation no. 686 dt. 4.1.1984 was prepared back dated. Further there is letter issued from the office of finance commissioner dt. 22.6.2004 on the name Deputy commissioner Pulwama for conducting inquiry, as during proceeding, it was found that from Mutation Register of Estate tangpuna pulwama, copy of mutation no.686 has been removed and fresh copy of mutation has been inserted. 18. In view of what has been discussed above, this revision petition is not maintainable, hence dismissed. Record of court below is sent back along with this order. 19. File of this court shall be consigned to records after due compilation.