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J&K High Court · body

2013 DIGILAW 630 (JK)

Mahesh Chander v. Suram Singh

2013-11-01

Madan Lal

body2013
ORDER 1. Brief facts of the case is that the total land measuring 03 kanals 16 marlas under Khasra No. 771/33 situated in village Kundrorian Katra was under the ownership of one Heera Singh. Predecessor in interest of the petitioner namely Sh. Amru was cultivating the said land. However said Heera Singh out of this land sold 01 kanals of the land to the respondent and respondent out of one kanal of land sold 10 marlas of said land to some persons, who occupied whole one kanal of land. On this one kanal of land there was a brick kiln. Brick kiln was removed and a hotel has been constructed on spot. Only 01 kanal 10 marlas of land remained in possession of the petitioner on the spot and they are in cultivating possession of the said land. Litigations has been started between the parties and Civil suit was filed and the case went up to the Hon' ble High Court of J&K and finally it was remanded back to Tehsildar Reasi for denevo enquiry. Tehsildar Reasi attested mutation under section 4 as per mutation no. 1142 on 13 Sep., 1991 and mutation u/s 8 of the Agrarian Reforms Act was attested on 2nd Dec., 1991. As per mutation no.1169 mutations were attested after enquiry and Tehsildar had called all the persons on spot and attested the mutations. The said mutations were challenged before Agrarian Reforms Commissioner Reasi who while setting aside the mutations, remanded the case back to Tehsildar Reasi reproduced as under; "In the backdrop of these circumstances, the mutation order no. 1141 dated 13.9.1991 attested u/s 4 and mutation order no; 1169 dated 2.12.1991 attested u/s 8 of the Agr. Reforms Act are hereby set aside. The position before attestation of mutations u/s 4 and 8 of Agr. Reforms Act in respect one kanal "Gair Mumkin Batha" land adjoining the road is restored. The case is remanded to Tehsildar Reasi for fresh enquiry and decision, as to which other portion of land, if any, under khasra No. 771/33 was in cultivating possession of Sh. Amru, strictly as per provisions of Agrarian Reforms Act and after giving opportunity of being heard to all concerned. The status quo order, if any, issued by this Court stands vacated. The file be consigned to record after due completion". 2. Amru, strictly as per provisions of Agrarian Reforms Act and after giving opportunity of being heard to all concerned. The status quo order, if any, issued by this Court stands vacated. The file be consigned to record after due completion". 2. Further narrated that Agrarian Reforms Commissioner Reasi has exceeded his jurisdiction while giving the findings that the position before the attestation of mutation under section 4 and 8 of Agrarian Reforms Act in respect of 01 kanal (Gair Mumkin Batha) land adjoining the road is restored. This finding is against the law because on the spot there is no Gair Mumkin Batha rather a hotel has been constructed on the said land. This finding is without any verification and against the facts and law of the case. Agrarian Reforms Commissioner (Reasi) by giving this finding and while using the word "restored" has allowed the respondent to occupy the land of Petitioner which is 01 kanal 10 marlas on spot. Whereas the subject matter of dispute before the Court below was regarding the mutations u/s 4 and 8 of Agrarian Reforms Act. Section 27 of the Agrarian Reforms 1996 deals with implementation of provisions of the Act which is reproduced hereunder;- 27: Implementation of the Provisions of the Act. (1) A Revenue Officer may take or cause to be taken such steps and use or cause to be used such force as may, in the opinion of such Officer, be to implement the transfer, eviction from or delivery of possession of, land under this Act, notwithstanding any thing contained in any other law for the time being in force: (2) Any person unauthorizedly, or wrongfully in possession of any land: (a) The transfer ort acquisition of which, either by the act of the parties or by the operation of law is invalid under the provisions of this Act: or (b) To the use and occupation of which he is not entitled under any provision of this Act May be summarily evicted by a Revenue Officer. 3. At any time after the commencement of this act it shall be lawful for a Revenue Officer or authority to enter upon any land and make or cause to be made any survey including measurements and do any other act which he considers necessary for carrying out the purposes of this Act". 3. At any time after the commencement of this act it shall be lawful for a Revenue Officer or authority to enter upon any land and make or cause to be made any survey including measurements and do any other act which he considers necessary for carrying out the purposes of this Act". Rule-50 of Agrarian Reforms Rule, 1977 deals with place of hearing: The Officer competent to hear appeal may, as far as practicable hear said appeal at the headquarters of the District or Tehsil to which it relates: Provided that where correctness of any entry relating to personal cultivation of land is in dispute, the petition may, as far as practicable be disposed of at site in presence of the general village body and no costs for serving notice on the villagers to attend shall be demanded from any party" 3. Further stated that Agrarian Reforms Commissioner has held that land to be restores which is adjoining the road and Agrarian Reforms Commissioner had no jurisdiction to give their findings with respect to this effect because on this fact no adjudication was done and findings returned by the Court below is contradictory and the impugned order requires to be corrected. Learned counsel for the petitioner has argued that the respondent herein had assailed mutation no. 1142 and 1169 attested on 13 Sep. 1991 and 2nd of Dec., 1991 respectively. By Tehsildar Reasi and Naib Tehsildar Katra with regard to land measuring 1 kanal 10 marlas out of Survey no. 771/33 situated at village Kundrorian tehsil Reasi. And petitioner had no concern with the land of the respondent herein and the petitioner's predecessor had been conferred with rights of prospective owner and Court below instead of ending the litigation between the parties have created multiplicity of the litigation by using the word in the remand order 01 kanal Gair Mumkin Batha land adjoining to the road is restored. If the Court below had to deliver the possession of the land in dispute to the respondents herein then there was no need to remand the case of Tehsildar Reasi for fresh enquiry And in the garb of this order , the respondent is bent upon to evict the petitioner from the land in question. The Court below was not empowered to pass such like order and deliver the possession to the owner of the land u/s 27 of Agr. The Court below was not empowered to pass such like order and deliver the possession to the owner of the land u/s 27 of Agr. Reforms Act. It was the job of a revenue Officer to the rank of Tehsildar whereas Court below was occupying as appellate authority and appellate authority had to uphold the mutation orders or set aside. If the appellate Court has remanded the matter to Tehsildar Reasi for fresh enquiry and passing order then question of restoring the possession of the land to the respondent herein does not arise at all. In support of the arguments, Learned Counsel for the petitioner has referred a citation reported in 2002 (I) SLJ 157 Nissar Husain v. State, wherein it has been held that Addl. Deputy Commissioner with the powers of Commissioner Agrarian Reforms is not competent to deal with petition u/s 27 of Agr. Reforms Act and order of eviction of unauthorized person whereas under SRO-59 of 1997, Addl. Deputy Commissioner has been empowered to hear the appeals only. 4. Learned counsel for the appellant has further argued that the respondents are not against the remand order but subject matter has to be protected till the enquiry is concluded by the Tehsildar Reasi and give a definite finding/passing the appropriate order. On the other hand learned counsel for the respondent argued that the petitioners have admitted themselves that they have no concern with 1 kanal of land which had been purchased by the respondent herein and the impugned order does not required to be interfered. Mutations order are set aside when principal of natural justice have been violated or the interested persons have been not afforded the opportunity of being heard or not summoned before passing the order against them. In the present case, it seems that the property which have been claimed by the parties to the petition was required to be demarcated and identified and failure to do so the parties to the litigation are fighting legal battle against the each other and if this sort of situation continuous, there would be no end to the litigation. However, ends of justice would be served and if the word used by the appellate Court below be expunged i.e. not read or interpreted by the parties to the litigation. However, ends of justice would be served and if the word used by the appellate Court below be expunged i.e. not read or interpreted by the parties to the litigation. However, keeping in view the facts of the case and law of the land, the order of remand passed by the appellate Court below would remain intact till the enquiry is complete by the Tehsildar Reasi and a decision is taken and the order to the extent of the position before attestation of mutation under section 4 and 8 in respect of I kanal Gair Mumkin Batha land adjoining the road is restored is modified and none of the parties to the litigation will act upon the wording used by the appellate Court below and evict either of the party forcibly till the rights are determined under law. Tehsildar Reasi is competent to hold the fresh enquiry as per order made by the Court below and passed an appropriate order. 5. The revision petition is accepted and disposed of and Copy of this Order be forwarded to Tehsildar Reasi for compliance Office file be consigned to records after due completion.