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2013 DIGILAW 687 (JK)

Sardari Lal v. Thoru Ram (Dead)

2013-11-28

Madan Lal

body2013
ORDER 1. Learned counsel for the petitioner had assailed the order of Director Land Records with powers of Commissioner Agrarian Reforms dated 3.5.2003 with regard of land comprising Khasra No. 20,23 and 359 measuring 32 kanals 09 marlas situated at Gulabgarh tehsil R.S.Pura on the ground that Civil suit came to be filed by the predecessor-in-interest of the respondents before Munsiff Court R.S.Pura and Civil Court decreed the suit in favour of predecessor-in-interest of the respondents. Further stated that order of Munsiff Court R.S.Pura was set aside by Learned District Judge, Jammu who framed the new issue as under: "Whether the plaintiffs were in possession of the suit properly within 12 years of the institution of the suit? O.P.P" and District Judge Jammu as per order dated 18.11.1968 remanded the case to Munsiff Court R. S. Pura after framing the above said issue. Ultimately the case came before the Hon'ble High Court vide order dated 13.4.87and thereafter before Assistant Commissioner General (Collector Agrarian Reforms) Jammu and Assistant Commissioner (Collector Agrarian Reforms) Jammu passed an order on 13.8.1988 and held the possession of the appellants herein to a legal one and entitled to rights under the provisions of Agrarian Reforms Act, conferred on tenant, under the said Act. Further stated that respondents challenged the a foresaid order of Court initially before Financial Commissioner Revenue with the powers of Commissioner Agrarian Reforms who vide order dated 3rd of July, 2003 by allowing the appeal of the respondents set aside the order of Asstt. Commissioner (G) Jammu. Petitioners have assailed the order of Director Land Records dated 3.5.2003 on the grounds that impugned order is against the facts and law of the case and approach of the Court below was not right and has passed the order taking shelter of decision of a Civil Court which could not help the other party. 2. Order of the Civil Court was not final and provision of Agrarian Reforms had overriding effect as supremacy and competent authority had to give findings of its own irrespective of any decision of the Civil Court. Civil Court had not given any adverse decision against the petitioners. Mutation No. 121 dated 31.8.1959 wherein rights with regard to the land in questions were conferred in favour of the petitioners, which, on appeal got affirmed on 23.2.1963 which orders were never came to be challenged. Civil Court had not given any adverse decision against the petitioners. Mutation No. 121 dated 31.8.1959 wherein rights with regard to the land in questions were conferred in favour of the petitioners, which, on appeal got affirmed on 23.2.1963 which orders were never came to be challenged. Moreover the appeal which came to be transferred to the Court below had been filed by the dead persons and some of the appellants had died before filing of the appeal and same was not tenable and liable to dismissal on the grounds abatement. This question remain undecided. Further stated that appeal filed before Court below was a time barred appeal and Court below has not looked into this aspect. 3. Learned Counsel for the petitioners has argued that most of the respondents have died and one of the petitioner have also expired. Perusal of the order sheets reveals that respondents have been set ex-party on 29 Feb, 2012 and living respondents have shown no interest in defending the revision petition. 4. Learned counsel for the petitioner has argued that Director Land Records has passed the impugned order on the basis of findings given by the Civil Court, whereas on 13.4.1987, Hon'ble High Court has observed in Civil Court 2nd appeal No. 69/1976 titled Chuni Lal v. Mani Ram and other, that the land involved in this appeal is the land as defined in Agrarian Reforms Act over which Civil Court has no jurisdiction. Under the provisions of the Act, this appeal, therefore is to be decided by the Collector and appeal was transferred to the Court of Collector Agrarian Reforms, Jammu for decision according to the provisions of the said Act. 5. In the light of order of Hon'ble High Court, Asstt. Commissioner (Collector Agrarian Reforms) Jammu received the file No. 2/ACG/8788 dated 18.5.1987 and given its decision on 23.8.1988 and who has ordered that land comprising under survey no. 20,23,359 measuring 32kanals 9 marlas situated at village Gulab Garh tehsil R.S.Pura is recorded in personal cultivation of Chuni Lal and others in Kharief, 1971 and they would be entitled to have the rights of prospective owners u/s 4 and 8 of the Agrarian Reforms Act. 20,23,359 measuring 32kanals 9 marlas situated at village Gulab Garh tehsil R.S.Pura is recorded in personal cultivation of Chuni Lal and others in Kharief, 1971 and they would be entitled to have the rights of prospective owners u/s 4 and 8 of the Agrarian Reforms Act. However Director Land Records has referred orders of Civil Court which were not in force as the Hon'ble High Court had observed that land in dispute had been covered by the provisions of Agrarian Reforms Act and Civil Court had no jurisdiction to adjudicate upon the subject matter. And the Court below committed an error in law by passing the impugned order and revision petition deserves to succeed and impugned order deserves to be set aside, the order passed by Collector Agrarian Reforms Jammu dated . 23.8.1988 deserved to be upheld. Learned Counsel for the petitioner has further argued that under section 21 of Agrarian reforms 1976, the revision lies only on two points , when question of law is involved or public interest is involved. 6. From the perusal of the file, it reveals that parties in revision petition are constantly in a dispute over land in question and more over the order impugned appears to have been passed by merely on the basis of Civil Court findings which had no legal force and thus Court below has committed an error in appreciating the correct perspective of the provisions of law. Court below was under obligation to frame points of dispute and given its decision strictly in accordance with law. If the Court below was of the opinion that petitioners were not holding the land in dispute in personal cultivation in Kharief 1971, then the Court below had remanded the case to the Tehsildar for ascertaining this fact and after an enquiry had ordered to pass appropriate order but simply observing that Assistant Commissioner (Collector Agrarian Reforms) has not applied mind judiciously was not a correct approach. 7. I have heard and perused the file and in view of the law laid down in judgment 2009 (Supp.) JKJ 590 [HC] titled Mohan Singh and others v. J&K Special Tribunal and others. 7. I have heard and perused the file and in view of the law laid down in judgment 2009 (Supp.) JKJ 590 [HC] titled Mohan Singh and others v. J&K Special Tribunal and others. Relevant para No. 7 and 8 are reproduced below for reference: 7- After hearing learned counsel for the parities, I am of the view that both the impugned orders are not sustainable on a very short ground that point of limitation has not been dealt with by both the forums below. As per section 22 of the act, the limitation period for filing an appeal is 60 days. Chapter IX of the Agr. Reforms Rules, 1977 deals with the appeals to be filed under the Act. Rule 48 says that provisions of Code of Civil Procedure Svt. 1977 shall apply mutatis and mutandis to all appeals under the Act. Section 3 in part II of the limitation act, Svt, 1995 deals with the limitations of suits, appeals, application, It is so worded that every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the first schedule shall be dismissed, although limitation has not been set up a defence So it becomes mandatory for the Court to see whether the appeal is within the time or not . However, Order XLI Rule 3-A of Civil Procedure Act Svt. 1977 deals specifically with application for condonation of delay which no doubt can be allowed, if sufficient cause is set forth, but this exercise has to be done at the first instance before touching the merits of the case. This is mandate of law. So from the aforesaid legal positions, any appeal failed under the Act has too be dealt with, as per the provisions of Civil Procedure Code, Svt. 1995. 8- As a sequel to what is discussed herein above, it can comfortably be said that if an appeal failed under the Act is barred by limitation, the application filed for condonation of delay in filing the said appeal is not to be taken in a casual manner. In other words, it calls for an order much less a speaking order at the very outset before entering into the merits of the case. This exercise is mandatory in nature and not directory and there cannot be any escape route to it, Admittedly respondent no. In other words, it calls for an order much less a speaking order at the very outset before entering into the merits of the case. This exercise is mandatory in nature and not directory and there cannot be any escape route to it, Admittedly respondent no. 2 has not resorted to this exercise which is the requirement of law, as is evident from the impugned order (Annexure-C) Even respondent No. 1 while sitting in revision has also not bothered to enter into discussion on this vital aspect despite specific plea being taken in the grounds of revision, as is clear from Annexure-D, Therefore in my considered view, the order passed by respondent no. 2 which is subsequently upheld by respondent no. 1 deserves to be set aside and the present case warrants remand to the appellate Authority ( respondent No. I) with a direction to re-hear both the parties on the point of limitation at the first instance and thereafter to proceed with the appeal on its merits. 8. The case is remanded to Director Land Records (Jt. Agrarian Reforms Commissioner) with power of Commissioner Agrarian Reforms Jammu to pass order afresh after hearing the both parties on following points and Director Land record shall secure the presence of respondents/appellant before Court below. 1- Whether the appeal filed by respondents was time barred appeal and hit by the law of limitations. 2- Whether the petitioners were In cultivating possession of land in question on crucial date kharief 1971 and till date if so it effect on appeal. 3- Whether the findings of Civil Court were applicable in the appeal before the Court below 4- Whether the appeal preferred by respondents had abated being filed against dead persons. 9. Learned counsel for petitioner is directed to cause his appearance before Court below on 11.11.2013 `at 10.00 AM sharp. Office is directed to sent record of the Court below alongwith copy of order for compliance.