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2014 DIGILAW 449 (JK)

Chamel Singh v. State

2014-11-15

BANSI LAL BHAT

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1. This writ petition under Article 226 of the Constitution of India read with Section 103 of Constitution of Jammu and Kashmir has been filed by the petitioners for quashing the order of respondent No.3 dated 29.04.2009 and of respondent No.4 dated 07.03.2010 passed on mutation No. 2413 with regard to land bearing Khasra No. 807 min/ 224 measuring 28 kanals 09 marlas situated at Kundrorian, Tehsil Reasi on the ground that the petitioners and respondents Nos. 5 & 6 are co-owners/ co-sharers of a big chunk of land situated at Kundrorian, Village Puranadroor, Katra. It is averred in the petition that vide mutation No. 824, one Lachhan was declared as prospective owner with regard to land bearing khasra Nos. 807/224 measuring 37 kanals 09 marlas situated at Kundrorian and vide mutation No. 1076 dated 13.09.1993, application filed by respondents 5 & 6 under Section 7 of Agrarian Reforms Act for resumption of land was rejected by respondent No.3, which was challenged by respondent Nos. 5 & 6 before respondent No.10, Additional Deputy Commissioner, Udhampur who was vested with powers of Commissioner, Agrarian Reforms. The appeal came to be rejected. The rejection order dated 07.11.2003 passed by respondent No.10 in appeal was challenged by respondents 5 & 6 before respondent No.3, who vide order dated 29.04.2009 set aside the aforesaid order in view of the compromise between respondent No. 5 & 6 and respondent No.9. The case was remanded to respondent No.4 with a direction to attest the mutation in terms of compromise deed dated 17.02.2009. Respondent No.4 attested mutation No. 2413 dated 07.03.2010 by virtue whereof rights to the extent of 09 kanals with regard to land bearing khasra Nos. 807/224 were conferred in favour of respondent Nos. 5&6 while to the extent of land measuring 19 kanals 09 marlas, the rights were conferred in favour of respondent Nos. 7&9. Petitioners, feeling aggrieved, are seeking quashment of order dated 29.04.2009 and 07.03.2010 respectively passed by respondent Nos. 3&4. 2. Respondent Nos. 5&6 filed objections to the petition which were adopted by other respondents except respondent Nos. 7&9 who were set ex-parte. It is pleaded that the land under survey Nos. 807/224 was in cultivating possession of Lachhan and after his demise, the same fell in the hands of his widow, respondent No.9. It is pleaded that Lachhan was a tenant under the grandfather of respondent Nos. 7&9 who were set ex-parte. It is pleaded that the land under survey Nos. 807/224 was in cultivating possession of Lachhan and after his demise, the same fell in the hands of his widow, respondent No.9. It is pleaded that Lachhan was a tenant under the grandfather of respondent Nos. 5&6 who sought resumption of land out of khasra Nos. 807/224. Father of respondent Nos. 5&6 died during the life time of his father. The resumption application was declined. Appeal carried against the same too was dismissed. Respondent Nos. 5&6 assailed the same before the Jammu and Kashmir Special Tribunal, where a compromise was recorded between respondents 5&6 and respondent No.9, in terms whereof respondent No.9 agreed to part with 09 kanals of land out of khasra No. 807/224 in favour of respondent Nos. 5&6 while 24 kanals 09 marlas was agreed to be retained by respondent No.9. The revision petition filed before the Tribunal came to be disposed of with a direction to respondent No.4 to attest the mutations under Section 7&8 of Agrarian Reforms Act in terms of the compromise. Mutation No. 2413 was attested by respondent No.4 accordingly. It is pleaded that since there was no relationship of landlord and tenant between the petitioners and Lachhan, they were not entitled to resumption of land. Thus, the writ petition was not maintainable. It is further pleaded that petitioners have filed a civil suit for declaration and partition pending adjudication before the learned District Judge, Reasi wherein they seek to draw their title through one Prithi Singh by laying a false claim that Prithi Singh had been adopted by Shiv Ram. It is pleaded that Prithi Singh had inherited the property of his natural father Jaru and this fact is reflected in Jamabandi. It is further pleaded that Prithi Singh never enjoyed the status of co-owner/co-sharer with the respondents. Thus, the petitioners have no right to question mutation No. 2413 and the writ petition is not maintainable. 3. In view of the objections raised by respondents, the petitioners filed a motion seeking leave to amend the petition for incorporating the facts that resumption of land was sought by Moti Ram-grandfather of respondent Nos. 5&6 who happened to be brother of Shiv Ram. Though Jaru was natural father of Prithi Singh, Mst. Putti widow of Shiv Ram had adopted Prithi Singh which is evidenced by the adoption deed dated 29.04.1968. 5&6 who happened to be brother of Shiv Ram. Though Jaru was natural father of Prithi Singh, Mst. Putti widow of Shiv Ram had adopted Prithi Singh which is evidenced by the adoption deed dated 29.04.1968. That mutation of inheritance of Mst. Putti came to be attested in favour of Prithi Singh and upon the death of Prithi Singh, his estate devolved upon petitioners and two daughters namely Sunita Devi and Rajni Kotwal. It is further submitted that out of the land devolving upon Prithi Singh, land measuring 01 kanals 15 marlas was acquired and final award made on 26.08.2009, in terms whereof compensation to the tune of Rs. 5.29 lacs was sanctioned in favour of Prithi Singh. Petitioners want to incorporate the facts relating to disqualification of Moti Ram to resume land on the ground that he was already having 40 kanals 02 marlas land and after kharief 1971 the land had been transferred by him in violation of provisions of Agrarian Reforms Act. Petitioners further want to incorporate the fact that 07 kanals and 19 marlas of land stood recorded in personal cultivation of Prithi Singh in kharief 1971. It is further averred in the motion that the impugned mutation orders are adversely affecting the rights of petitioners and they have locus standi to challenge the same. Petitioners further seek to incorporate the ground that personal cultivation of Moti Ram is deemed to be the personal cultivation of his brother Shiv Ram, the predecessor in interest of the petitioner and order of resumption in favour of respondent Nos. 5&6 is not legally permissible in as much as petitioners are co-owners of respondent Nos. 5 & 6. 4. Respondent Nos. 5&6 have filed objections resisting the motion for amendment on the ground that the writ petition has been filed after filing of civil suit which clearly demonstrates that the material facts have been deliberately withheld. It is further pleaded that the writ petition is not maintainable as the petitioners were neither a party before the appellate authority nor before the Collector, Agrarian Reforms. The amendment sought is said to have the affect of changing the whole complexion of the petition while the Civil Court is already seized of the matter between the parties. 5. It is further pleaded that the writ petition is not maintainable as the petitioners were neither a party before the appellate authority nor before the Collector, Agrarian Reforms. The amendment sought is said to have the affect of changing the whole complexion of the petition while the Civil Court is already seized of the matter between the parties. 5. With the consent of learned counsel for the parties, the motion for amendment of petition as also the issue of maintainability of the petition were taken up together for consideration. 6. Heard and considered. 7. It is well settled that disputed questions of fact cannot be the subject of determination in writ petition. It is also settled position of law that where equally efficacious remedy is available, resort cannot be had to Constitutional remedy in the form of writ petition. In so far as amendment of pleadings is concerned, an amendment which is necessary for complete and effective settlement of the dispute has to be allowed. However a valuable right that may have occurred to the respondents by lapse of time cannot be taken away by allowing such amendment. So far as the petition in hand is concerned, it is not disputed that the same has been filed after the petitioners chose a forum for adjudication of the dispute sought to be raised through the medium of instant petition and the proposed amendment. Admittedly petitioners approached the Court of learned District Judge Reasi staking claim to the subject matter of litigation basing their title upon status of Prithi Singh as adopted son of Shiv Ram. It is not disputed that Shiv Ram was the brother of Moti Ram/ predecessor in interest of respondents Nos. 5&6. However, factum and validity of adoption of Prithi Singh by Shiv Ram being the subject matter of civil litigation pending adjudication before the learned District Judge Reasi on the date of filing of instant writ petition, it is manifestly clear that the issues raised in the suit were well within the knowledge of petitioners when they filed the instant writ petition. The fact that material facts, upon which the petitioners based their claim before the Civil Court, were suppressed in the instant writ petition operates as a bar to seek Constitutional remedy under Article 226 of the Constitution of India. The fact that material facts, upon which the petitioners based their claim before the Civil Court, were suppressed in the instant writ petition operates as a bar to seek Constitutional remedy under Article 226 of the Constitution of India. In absence of adjudication of petitioners claim on the basis of status of Prithi Singh as adopted son of Shiv Ram, petitioners have no locus standi to assail the mutation orders passed under Sections 7&8 of the Agrarian Reforms Act. The revision petition before the special Tribunal has been disposed of on the basis of lawful compromise affected inter se respondent Nos. 5&6 and 9 and the impugned mutation order passed in remand proceedings is in conformity with the terms of compromise deed executed inter se aforesaid respondents. Petitioners are guilty of suppressing the material facts while invoking writ jurisdiction of this Court. 8. Viewed in the aforesaid context, it can be stated without any fear or contradiction that the petitioners have not approached this court with clean hands. Writ Petition itself is not maintainable. That being so, the proposed amendment cannot be allowed moreso, as the Civil Court is seized of the issues relating to factum and validity of alleged adoption of Prithi Singh. The determination of status of petitioners claiming to derive title from Prithi Singh as co-owners/ co-sharers of the land being the subject matter of impugned mutation orders, depends upon the adjudication of the factum and validity of adoption of Prithi Singh by Shiv Ram or his widow Mst. Putti. 9. In view of the foregoing, the instant writ petition in itself being not maintainable, leave to amend the same has to be declined. The motion for amendment is, accordingly, rejected and the writ petition dismissed.