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2013 DIGILAW 627 (JK)

Ali Mohd. Palla v. Mohd. Sadiq Bhat

2013-10-30

Zubair Ahmad Raza

body2013
1. This revision petition arises against the order dated 23.4.2009 passed by the Joint Agrarian Reforms Commissioner, Srinagar, whereby he has accepted the appeals of the present respondent filed against the mutation No. 4507 dated 14.09.1981 and mutation No. 4699 dated 17.2.1982 under Section 4 & 8 of the Agrarian Reforms Act respectively with regard to Survey No. 3034 land measuring 02 Kanals and 13 marlas, Survey No. 4105/2709 land measuring 01 Kanal and 07 marlas situated at village Methan Tehsil Srinagar. The same impugned order be set aside. 2. In order to decide the case, it would be advantageous to give brief resume of the case. 3. The brief resume of factual matrix are as that respondents vide an appeal against the mutation No. 4507 dated 14.09.1981 and mutation No. 4699 dated 17.2.1982 U/S 4 & 8 of Agrarian Reforms Act with regard to survey No. 2334 land measuring 2 Kanal and 13 Marlas situated at village Methan Tehsil Srinagar. Under Survey No. 4105/2709 land measuring 1 kanal 7 Marlas situated at village Methan Tehsil Srinagar. 4. Joint Agrarian Reforms Commissioner has dismissed the application for condonation of delay and against that order revisions lies before this Tribunal vide file No. STS/2287/2008 whereby this Tribunal had set aside the order in condoning the delay and file was remitted back for giving finding on merit of the appeal after obtaining the objections and visiting the spot for correctness of the entries regarding the personal entries of the land in terms of Rule 50 of Agrarian Reforms Rules. 5. After receiving the file by the JARC, parties appeared before him, Commissioner ordered parties to be present on spot on 5.3.2009, informed the general village body. As land submitted herein above, is at different places. Land measuring 2 kanal and 17 Marlas under survey No. 3034 situated at village Methan Tehsil Srinagar and Petitioner is growing the vegetable which on spot the Learned Counsel for the petitioner has observed in presence of Village Body headed by Lamberdar of the village Methan and others. Petitioner is in cultivating possession of the land for the last more than 50 years uninterruptedly establishing the fact by the village body also. Petitioner is in cultivating possession of the land for the last more than 50 years uninterruptedly establishing the fact by the village body also. The respondents have also produced some person of different villages as witnesses in support of his case but the relatives of the respondents have not deposed before the Learned Commissioner on spot the cultivating possession of respondent but have introduced one Mst. Mugli and have not established the fact that respondents is in cultivating possession. The case was taken up for arguments and written arguments were submitted. The Learned Counsel for the respondents introduced distinguish aspect which are related vis-a-vis the direction from this tribunal to the Commissioner to see the correctness of the entries of the column tenancy meaning thereby who is the person in cultivating possession. But the Ld. Commissioner has travelled beyond parameters which he ought to have not to be plunged into remote controversy as projected by the LC for the respondent. As the matter of fact as per the Rules of Agrarian Reforms Rules Act when form 4 is formulated that is attempt for searching tiller of the particular piece of land before general body on one voice admitted the possession of the person to be tiller of the land since 1971, he is to be declared prospective owner but have complied the same rules and attested the mutation Under Section 4 on 14.09.1981 and after 5 months. Section 8 has been attested in favour of the present petitioner. After paying the levy, to the ex-owner nobody has objected as is revealed from the partisarkar issued by the Tehsil Office on 27.8.1982 that means respondent have accepted the reality of being pay which stay the possession of the petitioner. 6. Court below has not acted on the direction to J&K Special Tribunal nor applied the judicial mind and has jumped over the decision which has not the domain of the Commissioner. Controversy revolves around the entry which was to be decided by the Learned Commissioner on spot. Same having not been done in order impugned as such, it is liable to be set aside. Written argument which would have been submitted by the parties have not given weight. Commissioner is introducing the land situated at Natipora while as the fact is that the land which has influenced the commissioner is situated at Nowgam which belonged to Mst. Mugli. Written argument which would have been submitted by the parties have not given weight. Commissioner is introducing the land situated at Natipora while as the fact is that the land which has influenced the commissioner is situated at Nowgam which belonged to Mst. Mugli. Finding return by the Learned Commissioner on 23.4.2009 seems to be finding with regard to the land situated at Nowgam. As such, this being a very important legal possession involved having the public importance, also petition is being submitted for quashing of order passed by the Learned Commissioner. 7. I have heard the Learned Counsel for both the parties and also perused the court below file record meticulously. 8. This is a second round of the litigation, earlier the Joint Agrarian Reforms Commissioner has dismissed the application for condonation of delay which has been filed along with the appeal and against that order revision petition has been filed, in that revision petition this Tribunal has passed an order whereby the Commissioner was directed to decide the appeal after hearing the both side parties. "The correctness of the entry relating to the personal cultivation of land is in dispute, the petition shall be disposed of by the Commissioner at site in presence of the general village body in terms of Rule 50 of Agrarian Reforms Rules and also shall be finally disposed of within three months. Accordingly the Commissioner went on spot on 5.3.2009 and recorded the statement of the parties and their witnesses on spot and also perused the revenue record which the concerned Patwari has brought on spot and after recording the statement of the parties and witnesses and also perusal of the revenue record on spot, the case was fixed for argument and both side counsel has given the written argument and after perusal of the argument put-forth by the counsel for the parties, appeal record file reveals that order passed by the mutating Officer is without jurisdiction which he passed in clear violation of Agrarian Reforms Act, 1976 and Rules and also ordered passed by mutating officer (Naib Tehsildar) concerned in absence of the appellant which is also in clear violation of Agrarian Reforms Act and Rules. It was further held that Mst. Mugli, wife of the respondent herein petitioner is the co-sharer of the appellant herein respondent and whose the land under appeal in the capacity of co-sharer. It was further held that Mst. Mugli, wife of the respondent herein petitioner is the co-sharer of the appellant herein respondent and whose the land under appeal in the capacity of co-sharer. This fact also been supported by the witnesses on spot that land in question was and in the possession of Mst. Mugli since 50 years. She is also niece of the appellant herein respondent but wife of the respondent herein appellant has illegally got the land mutated in his favor under section 4 & 8 of the Agrarian Reforms Act. 9. The Learned Counsel for the petitioner has pointed out during the argument that court below travelled beyond the direction of this Tribunal. It is well settled position of law that court below, to which the case is remanded back, has to comply with the order of remand, acting contrary to the order remand is contrary to the law. Court below has not touched the direction which has been given/passed by this Tribunal, as such, order is not inconsonance with direction, it may be set aside. He has only to see the correctness of the entries of column tenancy who is in cultivating possession of land since 1971 but court below travelled beyond the parameter. The correct pedigree table as issued by Patwari is clearly depict the possession with regard to the party and their entitlement wherein Mst. Noori having sold her entire share during her life time. In support of his contention the LC has cited the following case law:- (i) AIR 1987, Raj (ii) AIR 1997, MP page 90 (iii) AIR 1994, Gouhati page 35 (iv) AIR 2001, SC page 965 10. On the other-hand, the LC for the respondent has argued that from the court below record as well as P-Degree shown by the Patwari concerned, it is crystal clear that parties are co-sharer because Mst. Mugli wife of respondent herein appellant is the niece of appellant herein respondent. Moreover the commissioner has acted in pursuance of this Tribunal direction accurately. He informed both the party, went on spot, recorded the statement of the witnesses from the both sides and after hearing both side counsel passed order so there is no lacuna in the appellate authority order. Moreover the commissioner has acted in pursuance of this Tribunal direction accurately. He informed both the party, went on spot, recorded the statement of the witnesses from the both sides and after hearing both side counsel passed order so there is no lacuna in the appellate authority order. He has also cited the following case law in support of his claim:- (i) SLJ 2004-II Page 570 : 2010 (3) JKJ 887 [HC] (ii) SLJ 2003-I Page 229 : 2003 (2) JKJ 134 [HC] (iii) SLJ 2000 Page 685 : JKJ Soft JKJ/22378 11. I have perused the court below file and as per the revenue record, petitioner and the respondent's wife Mst. Mugli belong to same dynasty and they are admittedly the co-sharer in the year 1971 kharief. Respondent was shown in the column of cultivation as owner, whereas in the year 1970 Mohd. Sadiq Son of Karim Bhat was shown as in cultivation by way of a Sale Deed. Basically, mother of the respondent and petitioner and his wife had a joint land at village Methan which they inherited from one Lassa Palla common ancestral. Land in question is part of the said joint/un-partitioned land. Mother of the respondent had sold her share to the respondent in the year 1962 on the basis of the Sale Deed. Petitioner was recorded in tenancy column as buyer of the land under khasra no. 3034 land measuring 2 Ks and 13 Ms and owner column of the buyer Lass Palla as recorded as owner. Again respondent is shown in the Kashtkar Column under Survey No. 4105/4709 (1 Kanal and 7 Marlas) as owner in self-cultivation and rest of the land was recorded in the other co-sharers, as such, it is established that parties are co-sharer and cultivating as buyer in the year 1971 so the question of land Agrarian Reforms Act does not arise. True it is that appellate forum was required under Rule 50 have acted in particular manner as the dispute relating to entries of possession of land was to be settled. True, the Tribunal could have proceeded to record the evidence to determine the correctness or otherwise of the appellate forums order, yet the basis for the jurisdiction of appellate court received, on the mutation order recorded by tehsildar, order of the mutation being in contravention of the mandate of Rule 4 of the Agrarian Reforms Rule. True, the Tribunal could have proceeded to record the evidence to determine the correctness or otherwise of the appellate forums order, yet the basis for the jurisdiction of appellate court received, on the mutation order recorded by tehsildar, order of the mutation being in contravention of the mandate of Rule 4 of the Agrarian Reforms Rule. The resultant effect is that even if the order of the appellate forum are held to be not in accordance with the requirement of the rules and the law yet the tehsildar's order of attestation to mutation cannot be validated by the infraction of the rules committed either by the appellate authority. The basic order of attestation is dehorns of the rules which cannot be validated by striking down the order of appellate forum. Tehsildar orders whereby mutation came to be attested are not in accordance with the law. 12. The petitioner counsel argued that commissioner was directed by this Tribunal that correctness of the entries relating to personal cultivation of land is in dispute. Objection shall be disposed of by the commissioner at site in presence of General Village Body in terms of Rule 50 of Agrarian Reforms Act. But the Commissioner travelled beyond the parameters so order is not as per direction. But from the perusal of the file, the Ld. Commissioner went on spot, recorded the statement of the both side witnesses and dispose of the objection after hearing both side counsels but as per petitioner, there is a very important legal question involved having the public importance also. From the perusal of the order, it is clear that commissioner has conducted the enquiry with regard to the possession of the land but there is some material defect in attestation of mutation by Tehsildar where it is settled position of law that one co-sharer cannot be got the benefit of tenancy by any way. In support of my contention I have laid my hand on an authority of our own Hon'ble HC in SLJ 2004 (II) Page 570 : 2010 (3) JKJ 887 [HC] in case titled Kamal Singh and others v. State and others. In support of my contention I have laid my hand on an authority of our own Hon'ble HC in SLJ 2004 (II) Page 570 : 2010 (3) JKJ 887 [HC] in case titled Kamal Singh and others v. State and others. The relevant para of the said judgment is reproduced herein below:- "Land in possession of one co-sharer is deemed to be the possession of others one co-sharer cannot claim tenancy rights over the joint land to the exclusion of other co-sharers and cannot become owner thereof under the provisions of Section 4 & 8 of the J&K Agrarian Reforms Act". 13. While the Commissioner went on spot and found that basic mutation has been attested wrongly in the name of appellant, whereas the land in dispute belong to Mst. Mugli as inherited by her through her father and both of parties are co-sharer in the joint property. The appellant cannot get the benefit of tenancy by any way as such, in this case court below has rightly held that the appellant has illegally got the land mutated in his name under section 4 & 8 of the Agrarian Reforms Act and it has been found on spot this is a joint inherited property of respondent and Mst. Mugli so the question of application of Agrarian Reforms Act does not arise. 14. Hence, in view of the above discussion, I do not find any illegality or irregularity in the impugned order, as such, there is no question of law or any matter of public interest is involved. Petition is having no merit. It is hereby dismissed. Copy of this order along-with the court below file shall send back to appellate authority. File Shall consigned to records after its due compilation.