JUDGMENT Per Kotwal, J. 1. This is a Letters Patent Appeal against judgment dated 24.04.2000 in OWP No. 955/1995, whereby learned Writ Court has dismissed the writ petition filed by the appellant against order dated 22.11.1995 passed by the Jammu and Kashmir Special Tribunal in a revision petition rejecting appellant's revision against order dated 22.07.1993 passed by the Joint Financial Commissioner with powers of Commissioner Agrarian Reforms (hereinafter referred to as the Commissioner). 2. Heard. We have pursued the record. 3. Undisputed facts leading to this appeal, shorn of unessential, are that four persons, namely, Laxman Singh, Sunit Singh, Hukum Singh and Roop Singh were real brothers and co-owners of land measuring 65 kanals ,13 marlas comprised in Khasra No. 146 (39K.,10M.) and Khasra No. 163 (26K.,10M.) situate in village, Sidhara Tehsil, Samba. Appellant, Budhi Singh is the son of co-owner, Roop Singh and private respondents, Vakil Singh and Satya Devi, are the successors-in-interest of another co-owner, Sunit Singh. Aforementioned land was recorded in cultivating possession of the co-owners including Budhi Singh (appellant) and Smt. Bandral, who was the wife of Sunit Singh, in kharif 1971. 3(a) Appellant seems to have applied to the Tehsildar, Agrarian Reforms for rectification of girdawari entry contending that Smt. Bandral had given her share measuring 16 kanals comprised in khasra No. 146 (10 K.) and 163 (6 K.) to him for cultivation prior to 1970. The Tehsildar, Agrarian Reforms seems to have allowed rectification and attested mutation No. 357 declaring the appellant as prospective owner of said 16 kanals of land in terms of section 4 of the Jammu and Kashmir Agrarian Reforms Act, 1976 (for short the Act) and mutation No. 364 vesting ownership right in the said land in the appellant in terms of section 8 of the Act. The private respondents questioned the orders passed in these two mutations in an appeal before the Commissioner. The Commissioner allowed the appeal and remanded the case to the Tehsildar, Agrarian Reforms, Samba for inquiry in terms of Rule, 4 of the Jammu and Kashmir Agrarian Reforms Rules, 1977. Pursuant to the order of remand, the Tehsildar Agrarian Reforms passed order dated 02.06.1991. The Tehsildar found that two kanals of the said land has been recorded in possession of the PWD. Pursuant to the order of remand, the Tehsildar Agrarian Reforms passed order dated 02.06.1991. The Tehsildar found that two kanals of the said land has been recorded in possession of the PWD. He found further that four kanals of the land comprised in khasra No. 146 was in possession of Smt. Bandral and ordered that the same be recorded in her possession from kharief 1971 to Rabi 1982 and after that in possession of the private respondents, Vakil Singh and Satya Devi. The Tehsildar ordered further that land measuring 10 kanals has not been found in possession of Smt. Bandral in kharief 1971 and was in possession of the appellant herein and ordered attestation of mutation to that extent in terms of sections 4 & 8 of the Act in his favour. This aspect of the matter has been found in copy of order dated 02.06.1991,. which is available on the record, and is also stated in the order dated 22.07.1993 (supra) passed by the Commissioner in appeal as also,in the revision petition against this order filed by the appellant before the Special Tribunal. 3(b) The private respondents questioned order of the Tehsildar dated . 2,06.1991 as well in appeal before the Commissioner. This appeal was filed on 25.07.1991. The appellant (therein respondent) remained ex-parte. The Commissioner after hearing counsel for the therein appellants and inspecting the spot, allowed the appeal and directed the land to be recorded in possession of the owners vide his order dated 22.07.1993. The Commissioner arrived at a conclusion that the entire land was in cultivating possession of the co-owners in kharief 1971 and after that and the appellant (therein respondent) being a co-owner was not entitled to any benefit under the Act. 3(c) The appellant, Budhi Singh, assailed the order passed by the Commissioner in a revision petition before the Special Tribunal. The Special Tribunal dismissed the same by its order dated 22.11.1995 by observing as under: "I have carefully gone through the arguments of both sides. It is clear from a perusal of the impugned order that the Agrarian Reforms Commissioner has gone to the site and examined witnesses. Among them Joginder Singh who was cultivating the land as co-sharers. The Agrarian Reforms Commissioner has accepted the arguments that the petitioner could not have been in cultivating of the land as he was away serving in the Army till 1981. Among them Joginder Singh who was cultivating the land as co-sharers. The Agrarian Reforms Commissioner has accepted the arguments that the petitioner could not have been in cultivating of the land as he was away serving in the Army till 1981. He also relied on the evidence of Joginder Singh co-sharer, that he was cultivating the land for Mst. Bandral. The principle that a co-sharer holds land in trust for every co-sharer and the benefit of cultivation possession in kharief 1971 under the Agrarian Reforms Act cannot go to a co-sharer has been well established. In such cases the partition Rules under the Land Revenue Act apply to the limit of the ceiling on land holding. Mst. Bandral, Joginder Singh and the petitioner (or his forbears) were co-sharers. Cultivation by Joginder Singh in Kharief 1971 of the share of Mst. Bandral is recorded as a fact by the Agrarian Reforms Commissioner. This automatically confirms the possession of Mst. Bandral and through her daughter, her grand-children, the respondent. No question of law has been established that would justify acceptance of this revision petition. It is, therefore, rejected with no order as to costs." 3(d) The appellant questioned the order dated 22.11.1995 passed by the Special Tribunal in a writ .petition before this Court. Learned Writ Court, however, upheld the order passed by the Tribunal holding that it was a case of appreciation of evidence, which has been properly appreciated by appellate authority and the Special Tribunal was right in holding that no question of law or public interest was involved in the revision petition and dismissed the writ petition also because the order of the Tehsildar Agrarian Reforrr.; was found arbitrary and bad in law. Hence, this LPA. 4. Mr. Anil Gupta, learned counsel for the appellant submitted that the Commissioner had visited the spot in absence of the appellant and passed the order dated 22.07.1993 ex-parte and without hearing him in violation of principle of natural justice. This aspect of the matter was ignored by the Tribunal and did not get due consideration of learned writ court. Mr. Gupta submitted further that Smt. Bandral was alive in the year, 1971 and died in the year, 1978. This aspect of the matter was ignored by the Tribunal and did not get due consideration of learned writ court. Mr. Gupta submitted further that Smt. Bandral was alive in the year, 1971 and died in the year, 1978. In her life time she had given her share out of the joint land to the appellant for cultivation and the appellant had been cultivating the same as a tenant at will on payment of rent as per 'naqudi hasab-i-deh'. This plea was specifically taken by the appellant in the petition of revision against the order of the Commissioner before the Special Tribunal. This aspect, however, too was ignored by the Commissioner and did not get due consideration of the learned Writ Court, submitted Mr. Gupta. 5. Per contra, Mr. Vikram Sharma, learned counsel appearing for the private respondents submitted that the appellant had never been cultivating the land in question as a tenant on behalf of the late Smt. Bandral and being a co-owner is not entitled to any benefit under the Act. 6. The question relating to the holding of ex parte proceedings against the appellant by the Commissioner was raised by the learned counsel for the appellant before the learned Writ Court and was duly considered. Learned Writ Court noticed that appeal before the Commissioner was filed on 25.07.1991 and the appellant was set ex parte on 11.01.1993 and it was not the case of the appellant (petitioner therein) that he had no notice of the appeal. Learned Writ Court also noticed that the appellant had not averred in his revision before the Tribunal that notice in appeal was not served upon him. In regard to the Commissioner's visit on spot on 02.07.1993, learned Writ Court observed that the appellant as he belongs to that village was expected to have notice of the visit of a senior Revenue Officer, which was well notified by the Chowkidar and Lambardar of the village and, even if he had no notice, he ought to have filed an application before the Commissioner either for fresh visit or for hearing him which he did not do till the appeal came to be finally disposed of. 7. 7. We have found no sufficient ground for disagreeing with the view taken by the learned Writ Court inasmuch it has not been explained as to why the appellant did not appear before or take part in the proceedings at any stage during two years of pendency of the appeal before the Commissioner and as to why the view taken by the learned Writ Court should not be approved. 8. We have another reason for not finding any substance in appellant's contention that the order dated 22.07.1993 was passed by the Commissioner without hearing the appellant because situation would not have changed, even if he had taken part in the proceedings. It is admitted that Smt. Bandral, who was predecessor-in-interest of the private respondents and was one of the co-owners qua the entire land at the relevant time was alive in the year, 1971. She died in 1978. It is not denied that the appellant at that time was serving in the Indian Army as it has come in the order of the Commissioner. At no stage it had been the case of the appellant that the joint property was ever partitioned prior to 1971 and the co-owners as they at the time were had come in possession of their respective shares. Unless it is shown that the land was formally partitioned and Mst. Bandral had come in exclusive possession of her share of land measuring 16 kanals, question of giving her share for cultivation to and creating tenancy in favour of appellant does not arise. Appellant, therefore, cannot claim to be in possession of the share of Mst. Bandral as her tenant at the crucial time, that is, 1971 kharief or any time for that purpose. No benefit under the Act, therefore, could ever have been claimed by the appellant being a co-owner of the land as good as Mst. Bandral was. It is well settled as a principle of law that possession of one or more co-owners of a property, which is not partitioned, is deemed possession of all the co-owners and a co-owner in exclusive possession of a joint land cannot claim to be a tenant of the other co-owner(s). 9. Bandral was. It is well settled as a principle of law that possession of one or more co-owners of a property, which is not partitioned, is deemed possession of all the co-owners and a co-owner in exclusive possession of a joint land cannot claim to be a tenant of the other co-owner(s). 9. We would, therefore, hold that at no point of time the Tehsildar Agrarian Reforms was right in ordering rectification of khasra entry qua the year, 1971-kharief in respect of the share of Smt. Bandral or her successors-in-interest in favour of the appellant and paving way for giving him benefit in terms of sections 4 & 8 of the Act. It needs to be noticed that at the earlier stage the Tehsildar Agrarian Reforms seems to have ordered rectification of girdawari and attestation of mutation Nos. 357 & 364 under sections 4 & 8 respectively of the Act in respect of entire share of Smt. Bandral, herein private respondents, measuring 16 kanals in favour of the appellant. That exercise, however, was annulled by the Commissioner in appeal by accepting the appeal and remanding the case for fresh inquiry to the Tehsildar Agrarian Reforms. At the subsequent stage, the Tehsildar, however, seems to have shown some generosity to the private respondents by holding in his order dated 02.06.1991 at least that four kanals of the land was in possession of Smt. Bandral in her life time from 1971 to 1982 and after her death is in possession of the private respondents. We fail to understand how four kanals of land was found in possession of Smt. Bandral if earlier the entire land was found in possession of the appellant. 10. We would thus conclude that there had been no merit in appellant's claim that he ever was in possession of the share of Smt. Bandral as a tenant. It being so, the contention that appellant was not heard by the Commissioner, which though has been dealt with and rejected by the learned Writ Court and we agree with the view taken by the Writ Court, loses importance even if this contention was to prevail. 11. It being so, the contention that appellant was not heard by the Commissioner, which though has been dealt with and rejected by the learned Writ Court and we agree with the view taken by the Writ Court, loses importance even if this contention was to prevail. 11. Having regard to the legal position in retrospect and as it by now has by virtue of various judicial pronouncements developed, we cannot subscribe to a view that High Court in exercise of Writ jurisdiction should set aside an order once it is shown that the same has been passed in breach of the principle of audi alteram partem without requiring the petitioner to show that the prejudice has been caused and the position would have been different had he been issued notice and heard. In R.S. Dass v. Union of India & Ors., 1986 Supp. SCC 617, Their Lordships of the Supreme Court have observed; "it is well established that Rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and the back-ground of statutory provisions, nature of the right which may be affected and the consequences which may entail, in the facts and circumstances of each case". 12. What is required to be determined is whether and to what extent the prejudice has been caused by not following the principle of audi alteram partem and can the situation change or improve if the order is set aside and opportunity in terms of the principle is provided. It may be stated that if an adverse order is passed in breach of the principle of audi alteram partem the affected person may approach the Court to say that the prejudice has been caused by not hearing him. But if no substantial or de facto prejudice is caused question of breach of the principle would not arise. If it can be said that the situation would not have been different had the person been heard, no prejudice can be said to have been caused. 13. If the facts are admitted or indisputable and there is no possibility of change or improvement in situation even after hearing the person against whom the order is passed 'useless formality theory' can be brought into service. This theory has now got recognition and can be applied in the cases where the facts are admitted or indisputable. 13. If the facts are admitted or indisputable and there is no possibility of change or improvement in situation even after hearing the person against whom the order is passed 'useless formality theory' can be brought into service. This theory has now got recognition and can be applied in the cases where the facts are admitted or indisputable. The 'useless formality theory' has received consideration of Their Lordships of the Supreme Court in M.C. Mehta v. Union of India, (1999) 6 SCC 237 ( AIR 1999 SC 2583 ). 14. No prejudice can be said to have been caused to the appellant nor situation could have been otherwise even if the appellant had taken part in the proceedings in the appeal before Commissioner because his claim as tenant of a co-owner has no merit and could not have prevailed. 15. For all that said and discussed above, neither the claim of the appellant nor appeal any merit. The appeal is, therefore, dismissed. 16. Disposed of. Appeal dismissed