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2012 DIGILAW 486 (JK)

Gh. Mohd. Naik v. Abdoo Malik (Dead)

2012-08-06

Sanjay Gupta

body2012
1. This revision petition has been filed against the order of Addl. Dy. Commissioner Doda with powers of Agr. Reforms commissioner dated. 2.8.2008, by virtue of which appeal filed by the petitioner against the order of Niab Tehsildar Doda on 5.1.86, with regard to mutation no: 695 of village Udyanpur pertaining to land measuring 14 kanals 4 marlas under khasra No. 613, half of the land measuring 07 kanals 04 marlas under khasra no. 1019/622 and half of the land measuring 05 marlas under khasra no. 621, attested u/s 4 of Agrarian Reforms Act, has been dismissed. 2. Petitioner has stated in the memo of revision petition that, land measuring 14 kanals 04 marlas under khasra no. 613, 7 kanals 4 marlas under khasra no. 1019/622, land measuring 21 kanals 8 marlas under khasra no; 621 and land measuring 5 marlas under khasra no. 621, total measuring 21 kanals 13 marlas is in occupation and possession of the petitioner for last more than 40 years. That petitioner is tenant over the land and as per Agr. Ref. Act 1976, proprietary right of said land were required to be conferred upon him by paying levy to the ex owner of said land. That predecessor in interest of respondents, were never in actual physical possession of said land in Kharief 1971. That to the ignorance of the petitioner and because of cleverness of respondents, a wrong and against the position on spot, girdawri entry exists on the name of respondents. That he came to know about this fact in 1987. That respondents have wrongly claimed to be the tenants over the land and got attested mutation u/s 4 of the Arg. Ref. Act. 3. That this mutation was kept secret and he came to know only in Feb, 2001. That attesting Officer did not call the interest persons at the time of attestation of mutation. That mutation attested was a disputed and for this purpose procedure has been given in rule 4 of agrarian reform rule, which has not been followed. 4. Heard both counsel at length and gone through relevant law on subject. 5. Brief facts emerging from the records are that, petitioner herein filed an appeal against mutation no. 695 attested by Naib Tehsildar on 5.1.1986 u/s 4 of Agr. Ref Act in favour of respondents. 4. Heard both counsel at length and gone through relevant law on subject. 5. Brief facts emerging from the records are that, petitioner herein filed an appeal against mutation no. 695 attested by Naib Tehsildar on 5.1.1986 u/s 4 of Agr. Ref Act in favour of respondents. This appeal was filed on the grounds that appellant is in continuous possession of land and as such he was to be declared as prospective owner of the land instead of the respondents. That appellant came to know about this state of affairs on 16.2.2001, through respondent no. 2 who declined to pay levy. That he applied for the copy and thereafter has filed the appeal. Along with appeal and application u/s 5 of limitation Act was also filed. Court below after hearing the parties dismissed the appeal on 2.2.2008.The concluding para of order reads as under; "I have gone through the records available on the file and heard the counsels for both the parties. It reveals that respondents are recorded as protected tenants prior to Kharief 1977, accordingly the mutation has been attested in their favour u/s 4 of Agr. Reforms Act. The above mentioned tenants were paying rent at the rate of half of the produce to the ex-owners. The appellant did not prove that on whose behalf he was cultivating the land and what rent he was paying to the ex-owners. Whereas in the Kharief 1987 the entry has been made in favour of the appellant on behalf of the respondent Abdoo and Mst. Jana prospective owner. The Patwari was called and perused the record of above mentioned land, wherein it was found that the appellant did not figure and where in the revenue record, but entries in his favour have been made without any basis in Kharief 1987 and Kharief 1990. The appellant did not claimed/ applied for correction of girdawri of revenue records prior to 1987, but filed the present appeal in 2001 having knowledge of attestation of mutation in the year 1987, when he managed to make the entries from the patwari halaqa in the revenue records. It seems that the story made in the memo of appeal is not based on facts. When the respondents no. 1 was minor and was servant of appellant. After some time he went outside for livelihoods. It seems that appellant took undue benefit and occupied the land of respondent no. It seems that the story made in the memo of appeal is not based on facts. When the respondents no. 1 was minor and was servant of appellant. After some time he went outside for livelihoods. It seems that appellant took undue benefit and occupied the land of respondent no. 1 without his consent illegally. It is established that the appellant has occupied the land unauthorizedly. Keeping in view the above back drop the appeal is time barred and without merits, hence dismissed. The possession of land be restored to respondents. Let the file be consigned to records after due completion. Announced 2.8.2008 Sd/- Additional Deputy Commissioner With the power of Commissioner Agrarian Reforms, Doda 6. Bare perusal of concluding para of order impugned, it is evident that, court below has dismissed the appeal on twin grounds. Firstly that appeal was time barred and secondly that name of appellant name, does not exist in cultivation column of girdawari of land in kharif 1971. 7. I have given my thought consideration to whole aspects of matter. 8. 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 in Girdawari of kharief 1971 and was paying rent to land lord would be entitled to get the benefit u/s of 4 of the Act.The entry of name of tenant/s in cultivation column of girdawari of land in kharief 1971, is crucial and relevant for conferring rights on tiller under sections 4 of agrarian reform act. By virtue of this section right of prospective ownership are conferred on tenants. 9. For the purpose of act, certain Revenue officers have appointed in term of section 18 of act. These officers have been assigned the job of resolving dispute between landlord and tenant pertaining to land defined under act. So there should be relationship of land lord and tenant between parties to litigation under this act. 10. In present case, case petitioner has laid his claim on ground that, he is in possession of land since prior to 1971. These officers have been assigned the job of resolving dispute between landlord and tenant pertaining to land defined under act. So there should be relationship of land lord and tenant between parties to litigation under this act. 10. In present case, case petitioner has laid his claim on ground that, he is in possession of land since prior to 1971. For this purpose he has relied upon girdawari of kharif 1987 and 1990. 11. From the revenue documents annexed in record file, I find that name of petitioner does not exist in exist in revenue record of 1971. It is the name respondents in revenue record of 1971. Girdawari entries of 1987 and 1990 on the name of petitioner, is no help to him, because these are not crucial for the purpose for attesting mutation under section 4 of agrarian reform act. In term of section 13(2) of agrarian reform act, after 1.5.1973, no tenancy can be created. Court below has given specific findings that entries in girdawari of 1987 and 1990, on the name of petitioner, has been made without any basis, the name of petitioner no where existed in revenue record, except these entries. 12. Law is very much clear that patwari is not competent to change any entries in girdawari, thus cannot create any tenancy. There is no evidence in file in the shape of any document/s, as to under whom order, he changed girdawari, when it was forbidden by law in term of section 13(2) of agrarian reform act. Thus any entries made by patwari to this aspect does not confer any right on petitioner. 13. Further impugned mutation has been attested on 5.1.1986 prior to these entries. Here in present case, thus rule 4 of agrarian rules, which speaks of calling of all interested person at the time of attestation of mutation by Tehsildar concern, is not applicable, because when mutation was attested on 5.1.1986, the name of petitioner was not exiting in any revenue record, so there was no dispute with regard to girdawari enteries 14. So far question of limitation is concerned, petitioner has filed appeal on 20.2.2001, against mutation no.695 attested on 5.1.1986. Reason for delay has been narrated that, he came to know on 16.2.2001 at Doda, through respondent no.2, who declined to pay levy. 15. So far question of limitation is concerned, petitioner has filed appeal on 20.2.2001, against mutation no.695 attested on 5.1.1986. Reason for delay has been narrated that, he came to know on 16.2.2001 at Doda, through respondent no.2, who declined to pay levy. 15. Law is very much clear that each and every day after the limitation period is to be explained by a person seeking benefit of section 5 of limitation Act. In the present case averments made with regard to sufficient cause does inspire confidence of court, because mutation has been attested on 5.1.1986, whereas as from facts of case, it is apparent that petitioner was having knowledge of mutation, when he managed alleged illegal girdawari entries in 1987 and 1990. Provisions of limitation act are meant for prudent and diligent person. 16. Law of limitation has to applied, where party fails to show sufficient cause. In AIR 1998 Page 2276 case title P.K Ramachandran v. State of Kerla it is held as under:- (C) Limitation Act 36 of 1953 -- Section 5 -- Delay -- Condonation of -- Law of limitation has to be applied with all its rigour prescribed by statue -- Court has no power to extend period of limitation on equitable grounds. PARA 6 -- Law of limitation may harshly affect a particular party but it has to be applied with its entire rigor prescribed by statue court has no power to extend period of limitation on equitable grounds. The discretion exercised by high court was thus, neither proper nor judicious.The order condoning delay cannot be sustained. 17. No question of law point or public interest, has been raised in present case. 18. In view of what has been discussed above, this revision petition is dismissed as order under challenge does not suffer from any legal infirmities. Record be sent back along with this order. File of this court shall be consigned to records after due compilation.