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2017 DIGILAW 448 (JK)

Bilal Ahmad Shah v. Rafeeqa

2017-07-26

KOSSAR AHMAD QURESHI

body2017
ORDER : KOSSAR AHMAD QURESHI, J. (MEMBER) 1. The petitioner has challenged the impugned order dated 23.10.2013 passed by the learned Financial Commissioner by virtue of that he has dismissed the appeal/application filed under section 151 of CPC in the question of maintainability of appeal against the order of Tehsildar Kangan passed on mutation No. 607 of village Haripora dated 08.02.1986 in respect of land under survey No. 92. To put in brief the facts of the case are that the petitioners are the legal heirs of the deceased Gulla who is the prospective owners of the land measuring 8 kanals 4 marlas under survey No. 92 and entered as prospective tenant in revenue records. The mutation under section 4 bearing mutation No. 604 was attested. The prospective owner died leaving behind four sons, namely, Ghulam Mohammad, Ghulam Rasool, Mohammad Yusuf, and Ghulam Nabi. Mohammad Yusuf and Ghulam Nabi (dead) is in possession and occupation of the petitioners and they are cultivating crops thereon continuously and uninterruptedly, however, in 2007, the respondents started interfering with the suit property compelling petitioners to approach concerned authorities whereby it has come to their knowledge that mutation number 607 dated 08.02.1986 under section 7 has been attested, same stood challenged by the petitioners before Financial Commissioner. 2. The other side has filed their objections and has submitted therein that the appellants are the tenants of the land in question whereas, the respondent Mst. Rafiqa is the Ex-owner of the said land. That vide mutation order hearing No. 607 dated 08.02.1986 a resumption of land was granted in favour of ex-owner Mst. Taja who is dead and is replaced by her lone daughter Mst. Rafiqa. The petitioners assailed the mutation order within a period of its limitation before the court of Agrarian Reforms Commissioner/Financial Commissioner J&K by way of an appeal. The said appeal stood dismissed for failure of prosecution on the part of the appellants on 05.07.1994. No application for restoration of the said dismissed appeal was moved by the appellants which was the remedy available to them under Order 41 Rule 19 CPC. The petitioners in the year 2007, suppressing the previous history of the case, filed the instant appeal against the said order of resumption dated 08.02.1986 passed by the Tehsildar in favour of the respondents. The petitioners in the year 2007, suppressing the previous history of the case, filed the instant appeal against the said order of resumption dated 08.02.1986 passed by the Tehsildar in favour of the respondents. The said appeal came to be argued, the respondents objected the maintainability of the appeal on the clear cut ground that appellants cannot bye-pass their previous dismissed appeal and file the fresh one and the appellants were required under law to get the dismissed appeal restored as envisaged under the provisions of Order 41 Rule 19 of CPC. 3. The Learned counsel for the respondents further submitted that rather to penalize the petitioners for suppression of the previous history of the case and for deceiving the court in such a fraudulent manner, the Commissioner over ruled the objection and returned the finding on 27.03.2012 in terms that the appeal is maintainable. The counsel for the respondents further submitted that as provided under Rule 48 of Agrarian Reforms Rules, since the provisions of CPC are meant for civil appeals have been made applicable to the appeals arising out of the Agrarian Reforms Act, as such, the respondents approached the Commissioner Agrarian Reforms under the provisions of Section 151 of CPC for correction of the mistake committed by the Court in holding the appeal maintainable by virtue of its order dated 28.11.2011 and after hearing the arguments of the rival parties at length, the respondents on 23.10.2013 accepted the application of the respondents and not only set aside it's own order dated 28.11.2011 but also rejected the appeal of the petitioners which is impugned. 4. Heard the learned counsel for the parties at length, perused the record available on the file, also record file called from the court below. 5. It is an admitted fact that the respondents never claimed possession of any part of the suit property and the petitioners are never departed or disturbed in their peaceful possession. The mutation No. 607 is shown to be attested on 08.02.1986 Under Section 7 in favour of ex-owner Mst. Taja which was challenged earlier before the Commissioner Agrarian Reforms Srinagar long before 1986 which stood dismissed for lack of its prosecution on 05.04.1994. The mutation No. 607 is shown to be attested on 08.02.1986 Under Section 7 in favour of ex-owner Mst. Taja which was challenged earlier before the Commissioner Agrarian Reforms Srinagar long before 1986 which stood dismissed for lack of its prosecution on 05.04.1994. The learned counsel for the petitioner has submitted that the said petition was filed by one of his brother who died during the pendency and others were not having any knowledge with regard to the same and they have challenged the mutation No. 607 dated 08.02.1986 in respect of the suit property on 07.05.2007 before the Financial Commissioner, Revenue (with powers of Commissioner Agrarian Reforms) J&K, Srinagar which was allowed and delay was condoned by Ld. Financial Commissioner vide order dated 28.11.2011. In the said order dated 28.11.2011, the learned FC has observed that objections as to the non-maintainability of the appeal is brushed aside and the case was come up for further proceedings on next date of hearing i.e. 27.03.2012. Against this order, the respondents filed application Under Section 151 CPC praying for reversing of order dated 28.11.2011 before the Learned Financial Commissioner, Srinagar vide order dated 23.10.2013. The Learned Financial Commissioner, Srinagar reversed its order dated 28.11.2011 and dismissed the appeal. 6. Feeling aggrieved of the said order dated 23.10.2013, petitioners filed the present revision petition. The petitioners invoked the revisional jurisdiction of this Tribunal on limited question of law and public interest. 1. The question of law involved is whether under section 151 CPC is made applicable to the Act, and whether the learned FC can review its own order? 2. Whether appeal dismissed/consigned to records vide order dated 05.07.1994 at the at the instance of one of the party means that no fresh appeal can be instituted? 7. So far as the first issue is concerned, review petition is not provided in the Act as is provided in Section 21 & 22 of the Act. 8. There is no provision of review except for correction of clerical or arithmetical errors caused by accidental slips. 9. Only appeals and revisions and their limitations lie and procedure adopted in such provisions the CPC, will apply as provided in section 48 of the Act. 10. The respondent has filed application under section 151 CPC before learned Financial Commissioner for reversing of order dated 28.11.2011 which is against the spirit of law. 9. Only appeals and revisions and their limitations lie and procedure adopted in such provisions the CPC, will apply as provided in section 48 of the Act. 10. The respondent has filed application under section 151 CPC before learned Financial Commissioner for reversing of order dated 28.11.2011 which is against the spirit of law. Section 151 CPC cannot be involved, as it is inherent power and to be applied in such cases where the statute is silent. Review, as such is provided in CPC in separate chapter, how come, section 151 CPC can be invoked to review the order passed by the Presiding Officer, on applying its mind and deciding the petition on merits i.e. to reopen the chapter once closed. The Ld. Financial Commissioner, Srinagar has erred in reversing/reviewing its own order and on 28.11.2011, admitted the appeal and on 23.10.2013 dismissed the same appeal. This is the question of law and, as such, the order dated 23.10.2013 is bad in the eyes of law and law laid down in the Act where revisional authorities are categorically barred. The public policy is also involved as in the present case, the land in question is in possession of petitioners who are cultivating it. On the other hand, the contesting respondents are Government Employees. The Learned Tehsildar has not given any opportunity of being heard to the petitioners when mutation under section 7 of the Act was attested in favour of the respondent. The conditions and the provisions laid down in sub sections of section 7 and rules thereof, has been followed. The mutation No. 607 dated 8.2.1986 is not acted upon and there is no question of resuming the land in dispute to the ex-owner. The fact is that the crop is standing and the possession is in hands of petitioners. They are continuously prior in possession prior to kharif 1971, preparing, sowing and harvesting, using crops and utilizing for the purpose. The ex-owner fails to resume land and cultivate it. As such, the order dated 23.10.2013 passed by the Financial Commissioner is bad in the eyes of law. 11. So far as the issue No. 2 is concerned that whether, order of dismissal of appeal dated 05.07.1994 at the request of one of the party to appeal, and consigned to records means that no fresh appeal can be instituted? 12. As such, the order dated 23.10.2013 passed by the Financial Commissioner is bad in the eyes of law. 11. So far as the issue No. 2 is concerned that whether, order of dismissal of appeal dated 05.07.1994 at the request of one of the party to appeal, and consigned to records means that no fresh appeal can be instituted? 12. The main issue whereby order dated 23.10.2013 has been passed in pendency of appeal of 1994 which was dismissed and delay caused in filing this appeal. If, both the orders dated 28.11.2011 and impugned order dated 23.10.2013 are read together. The knowledge of pendency of appeal and its dismissal on 1994 is reflected. The learned Financial Commissioner vide order dated 28.11.2011 has applied its mind and brushed aside the objections of maintainability of the appeal. Even the order reflects that photocopy of the said dismissal order is annexed in support. Howe come and under what provision of law, the learned Financial Commissioner after deciding appeal on merits, in 2011, opened the limitation and appeal of 1994 pleas once again and changed its mind, and dismissed the appeal on 23.10.2013. This is against law and non-application of judicial mind on this count also the order impugned passed on 23.10.2013 is bad in the eyes of law. 13. Assuming for a while the pendency and dismissal of appeal on 05.07.1994, will apply as impediment in present appeal. 14. The answer is no, the appeal was dismissed for non-prosecution and consigned to records which in law means, Dakal Daftar and can be revived on the motion of any of the interested person. Even the court i.e. Financial Commissioner can suo moto call for the records of the proceedings. Delay has no role to play in the case. This argument is supported by law laid down by our own Hon'ble High Court reported in AIR 2012 J&K 35 in the case titled 2011 (4) JKJ 251 [HC] Gh. Qadir Dar & Anr. v. Punjab National Bank wherein it has been held as under:- "Dismissing a suit in default is a decision but simply consigning the case to records for default is no decision. Consigned to records means "Dakal Daftar" and can be revived on the motion of any of the interested party. Qadir Dar & Anr. v. Punjab National Bank wherein it has been held as under:- "Dismissing a suit in default is a decision but simply consigning the case to records for default is no decision. Consigned to records means "Dakal Daftar" and can be revived on the motion of any of the interested party. Even the courts suo-motu can call the record for civil proceedings or such order can be made on the motion of any interested party. Delay has no role to play in" Viewed thus, keeping above position of law into consideration, the impugned order is bad in law and the learned Financial Commissioner is erred in law by exerting power and authority which is non-existent under law. As such revision is accepted and order dated 23.10.2013 is set aside. The case is accordingly disposed off and shall go to records after its due completion. The lower court file shall go down along with the copy of the order.