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2017 DIGILAW 446 (JK)

Ismail Gojjar v. Durya Mohammad

2017-07-26

KOSSAR AHMAD QURESHI

body2017
ORDER : KOSSAR AHMAD QURESHI, J. (MEMBER) 1. That the revisionist and his brothers were the tenants of the land owner, namely, Yaqoob before the Kharief 1971. The brothers of the revisionist passed away unmarried and as such the land under khasra No. 413 comprising of 1 kanal and 16 marlas, and Khasra No. 415 comprising of 5 kanals and 12 marlas was under the exclusive possession of the revisionist and was enjoying the land without any interruption. Further submitted that the father of the revisionist had already passed away and the mother of the revisionist went for second marriage and she married to Biladar Milu and lived at Khan Chat which is situated at 26 kilometers from the residence of first husband. It is further submitted that the mother of the revisionist was not recorded as tenant before and after khareef 71 and by no means have any tenancy rights whatsoever. After the second marriage the Lal Jumma gave birth to two sons and expired more than two decades ago. Latief the son of Lal Jumma already expired and other son Duraman have no blood relationship with the revisionist having different fathers. Further submitted that the mutation in question are being challenged by the respondents without having any jurisdiction and is a calculated measure to take undue benefit of the old age of the revisionist and to alter the document which have attained finality before decades. Further submitted that the respondents have filed an appeal before the Hon'ble Court of Joint Agrarian Commissioner on 19.02.2007 challenging the mutation No. 413 and 415 under section 8 dated 20.5.1998. Thereafter a period of one and a half year the mutation bearing No. 1153 dated 17.11.1983 has been challenged in the year 2008 after a gap of 29 years. The petitioner is aggrieved of the order dated 16.05.2012 and challenged the same on the following grounds:- i. That the Lal Jumma is not a tenant and as such is not entitled to any tenancy rights and the said fact has not been considered by the Hon'ble Court while deciding the appeal and as such the order impugned has been passed without total non-application of mind and as such deserves to be set aside; ii. That the land under question as divided among the respondents by Lal Jumma for which she had executed a Will deed is wrong as firstly Lal Jumma had no tenancy right over the said land and if it is assumed for the sake of arguments that she had any rights but the same could not be transferred by way of a will deed and under such a situation the appeal under the agrarian reforms Act would not lie. These aspect have been ignored by the Hon'ble court and as such the order impugned is bad in law and deserves to be set aside; iii. That it was the revisionist only who was having the right of tenancy over the said land and the mutations was only a step forward in recognition of the acknowledge rights and no fraud has been committed in this context. Mutations are simply a reflection of the rights as recorded prior to Kharief 1971 and thereafter. As such the order impugned has effect of changing the facts and is therefore bad in law and deserves to be set aside; iv. That the Hon'ble court has erred in allowing the appeal without any reasonable cause being projected as is reflected in the order impugned as well. The appellants have first challenged the mutation No. 1401 dated 20.05.1998 u/s. 8 after a period of ten years that too without a cogent ground and then after a passage of one and a half year have challenged the mutation order No. 1153 dated 17.11.1983 under section 4 of the Act after a period of 30 years. The Hon'ble court has entertained the second part of the appeal in flagrant violation of the rules and procedures in vogue. The court has adopted a novel procedure by first entertaining the appeal under section 8 and then appeal Under Section 4 of the Agrarian Reforms Act and that too after a gap of one and a half years and both were to be tendered without sufficient cause for the delay occasioned. The Hon'ble Court has with total non-application of mind entertained the defective appeals, and condoned the delays of its own without considering the merits and justification of cause and adducing the evidence thereto. It was not the prerogative of the court but the applicability of the limitations Act according to which the ultimate decision was to be taken. The Hon'ble Court has with total non-application of mind entertained the defective appeals, and condoned the delays of its own without considering the merits and justification of cause and adducing the evidence thereto. It was not the prerogative of the court but the applicability of the limitations Act according to which the ultimate decision was to be taken. The Hon'ble Court has swayed away from the law and the norms and as such the order impugned is bad in law and deserves to be set at naught; v. That the Hon'ble Court has reached to the conclusion that the parties are related by blood when the fact of the matter is that the parties can be said to be related by blood when they are the descendants of the same male parent. Here the case is different as the parties are not descendants of the same father and therefore not related by blood. The land under question was always under the tenancy, prospective ownership and ownership of the revisionist and how can these rights devolve upon the mother Lal Jumma and how could she create an interest in favour of the sons being product of another marriage totally unconnected with the land in question. The Hon'ble court has therefore erred in concluding that the rights would have devolved as per inheritance and not by way of section 4 and section 8 of the Agrarian Reforms Act. Therefore, the Hon'ble court has misunderstood the whole gamut and without application of mind passed in the impugned order which is bad both in law and on facts and deserves to be set aside. vi. The Hon'ble court has not also applied its mind to the fact that a woman cannot be a tenant and cannot have rights of cultivation. On this aspect as well the order is bad in law and deserves to be set aside; vii. That the appeal has been preferred before the Joint Agrarian Commissioner, Kupwara, the authority having jurisdiction but how the order came to be passed by the court of Additional Deputy Commissioner, Kupwara and what is its validity reflects the casual manner in which the appeal has been decided and as such, the order is bad in law and deserves to be set aside. Heard Learned counsel for the parties at length. Perused the record available on file. 2. Heard Learned counsel for the parties at length. Perused the record available on file. 2. The petitioner has preferred the appeal before this Tribunal on 24.05.2012 through the medium of which the appellant has assailed the impugned order dated 16.05.2012 and mutation order No. 1153 under section 4 & 1401 under section 8 of Agrarian Reforms Act, 1976 effected in favour of the respondents on the grounds that the Naib Tehsildar Kupwara has attested the impugned mutations under section 4 & 8 of Agrarian Reforms Act against the spot position and beyond the law, as such, is liable to be set aside. Further submitted that the land under impugned mutation was the ancestral property of mother of appellant No. 01, Grandmother of appellant No. 02 & 03 and mother of respondent No. 01. The said land was divided among the appellant No. 1 and father of appellant No. 02 & 03 and respondent, by Lal Jumma for which she had executed a will deed also. The respondent was not having any right of tenancy over the said land and the Ld. Attesting Authority even though attested the impugned mutation in his favour beyond the law and rules laid down for the same. The mutation under section 4 of Agrarian Reforms Act has been attested for survey No. 413 only, while as, the mutation section 8 has been attested fraudulently for survey No. 413 & 415. That neither the respondent was ever a tenant of the said land nor he could be declared as a tenant to for the same because the same was/is his ancestral proprietary. The learned Attesting Authority should have summoned the legal heirs of the estate holder and should have called reports from the field agencies, but, nothing likewise has been done instead the impugned mutation has been attested under the influence of the respondent. The appeal for mutation attested under section 8 has been preferred on 19.02.2008, while as, appeal for mutation attested under section 4 of ARA has been preferred on 29.09.2008 i.e. after a gap of about 1= year. The learned counsel for the appellant in his appeal has stated that he came to know about the mutation under section 4 on 09.09.2008 which shows that the ld. Counsel for the appellant has erred in drafting the appeal or otherwise he was having no sufficient cause for condonation the delay. The learned counsel for the appellant in his appeal has stated that he came to know about the mutation under section 4 on 09.09.2008 which shows that the ld. Counsel for the appellant has erred in drafting the appeal or otherwise he was having no sufficient cause for condonation the delay. But the learned court below has condoned the delay while taking a liberal view as the valuable rights of the parties were involved in the case and finally remanded the case to the Tehsildar Kupwara for denovo enquiry and attestation of a fresh mutation upon the rightful climates under inheritance. The learned court below has opined that the attestation of mutation passed in favour of the respondents are defective, as the parties are related by blood and there was no relation of landlord and tenant among them. The estate holder "Lal Jumma" was the mother/grandmother of appellants and the respondent, so the land under impugned mutation should have been devolved upon the legal heirs as per section 4 & 8 of Agrarian Reforms Act 1976. 3. It has come to fore during the arguments that petitioner has mislead the court by showing the pedigree table by not showing the actual pedigree table as to how and where from the land in question has been devolved upon the petitioner or his father, therefore, the question in issue is only simpliciter as to whether the land belongs to father of the petitioner or it is a property of the mother to whom the property stand devolved by virtue of a particular document, i.e. a Gift Deed came to be executed on 04.07.1969 when one Yaqoob Gojjar parental Uncle gifted the property in the shape of land under khewat No. 302 under khasra No. 414, 415 and Khasra No. 411, 412 along with three trees of walnut favouring Lal Jumma the mother of the petitioner and the respondent No. 1 and father and husband of respondents No. 2 & 3. The said Gift Deed is enclosed with these arguments to establish the revenue entries with regard to the khasra Nos. 412, 413 & 415. The owner of the property was Yaqoob and others and in the column of tenancy the name of mother as done has been reflected which fact is borne out from the extracts of revenue enclosed herewith. The said Gift Deed is enclosed with these arguments to establish the revenue entries with regard to the khasra Nos. 412, 413 & 415. The owner of the property was Yaqoob and others and in the column of tenancy the name of mother as done has been reflected which fact is borne out from the extracts of revenue enclosed herewith. Therefore it is wrong to say that the land was property of the father of the petitioner and entire pedigree shown by petitioner is misconceived. That in addition to this, the petitioner with malice intention manipulated the record with the conveyance of revenue authorities in 1995-96 when his name have been shown in the column of tenancy the petitioner Ismail Gojjar and in the column of ownership Lal Jumma, the mother is shown the owner of the property. Therefore, he succeeded in manipulating the revenue record. The said revenue extract dated 25.08.2006 is already enclosed with the revision petition which has given a ill intention to petitioner to challenge the order of Additional Deputy Commissioner, Kupwara. 4. In this regard, the Hon'ble High Court of Jammu and Kashmir made it clear by a judgment reported in [Kamal Singh & Ors. v. State & Ors.] 2010 (3) JKJ 887 [HC], wherein the same and identical problem came to be dealt with section 4 & 8 of Agrarian Reforms Act was to challenged. The Hon'ble High Court in the judgment has held as under:- "Section 4 & 8 - Mutation - Petitioner was one of the Co-sharers along with other co-sharers of the land in possession of the other co-sharers -the petitioner claims to be a tenant over the land-mutation under section 4 & 8 Agrarian Reforms Act got attested by the other co-sharers in their favour ignoring the right of the petitioner-Held- 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 Agrarian Reforms Act, 1976". 5. So in the light of the judgment, the petitioner has no right nor any claim to get any ex-parte mutation without the knowledge of respondents with the connivance of revenue authorities to get attest any mutation under section 4 & 8 on his name in the exclusion of private respondents. The same is non-est in the eyes of law. 6. So in the light of the judgment, the petitioner has no right nor any claim to get any ex-parte mutation without the knowledge of respondents with the connivance of revenue authorities to get attest any mutation under section 4 & 8 on his name in the exclusion of private respondents. The same is non-est in the eyes of law. 6. The petitioner has taken the ground of limitation in his revision petition which is not fatal for him to get any relief. The judgment of the Hon'ble High Court to the subject is categoric and to the point reported in [Suraj Parkash v. Hon'ble Member, J&K Special Tribunal: JKJ Soft JKJ/22500] 1996 SLJ 285 which reads as under:- "J&K Agrarian Reforms Act 1976: Time barred appeal against a mutation attested in absence of the appellant-appeal filed without an application for condonation of delay-such mutation held a nullity and non-est in the eye of law, appeal held maintainable. 7. In the light of the judgment, the question with regard to the question of time barred appeal has been dealt with and the Hon'ble High Court has allowed and declared the mutation nullity and non-est in the eyes of law when the mutation was attested in absence of the respondents in this case, the petitioner has not legs to stand on this ground that the time barred appeal has been preferred and mutation has been set aside by the court below. As such, the court below was right in allowing the appeal in absence of respondents as the court below has reported three judgments whereby the court has come to conclusion that delay in filing appeal is condoned and appeal was allowed. Viewed thus, keeping the above mentioned discussion, arguments and documents into consideration, the petitioner has failed to establish his revision petition which is merit less and is accordingly dismissed. The lower court file is send back along with the copy of the order. File shall go to records after its due completion.