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2017 DIGILAW 563 (JK)

Sumaya Jan v. Gh. Ahmad

2017-08-07

KOSSAR AHMAD QURESHI

body2017
ORDER : 1. This revision petition has been filed by the petitioner against the order of ADC/Agrarian Reforms Commissioner, Kupwara dated 09.10.2013 passed in appeals titled "Ghulam Ahmad Dar v. Mst. Naseema Begum & others". Giving rise to this appeal, the facts are that the land measuring 2 Kanals 11 Marias under survey No. 493, situated in village Kunan, Kupwara has along been under the tenancy of Ghulam Qadir Dar S/O. Hassan Dar, father of petitioner and Assad Dar s/o. Hayat Dar was the owner of this land. This position is well recorded in all the revenue records especially in Girdawari of Kharif 1971. This recorded and spot position is admitted among the parties is not disputed. That after coming into force of Agrarian Reforms Act mutation No. 133 dated 27.07.1984 under section 4 has been attested whereby ownership of the land has been vested in state and tenant of the land Ghulam Qaidr Dar has been declared as its prospective owner and Assad Dar as ex-owner. That both, ex-owner and prospective owner of the land were all satisfy with his legal position. As such, ex-owner and prospective owner entered into private agreement dated 27.07.1984 Registered by Tehsildar Agrarian Reforms Kupwara (with the powers of Sub-Registrar) on 03.08.1984 in terms of Section 12 of Agrarian Reforms Act and mutation No. 134 dated 04.08.1984 has been attested under section 12 on the basis of said private agreement under section 12. 2. That after attestation of above said mutations ex-owner, Assad Dar and prospective/full owner, Ghulam Qadir Dar live for years and years and none was aggrieved of the mutations in any manner whatsoever, and none chose to challenge these mutations. Thereafter, both the ex-owner and prospective owner died and even years after their death on 24.09.2013, that is almost 30 years after attestation of above mentioned mutations, the respondent No. 1 (son of ex-owner) without anytime right, rhyme, reason and locus standi filed frivolous and time barred appeals against these mutations before ADC/Agrarian Reforms Commissioner, Kupwara and ADC/Kupwara has accepted the appeal without giving any reason and looking pros and cons of the case and passed the order dated 09.10.2013 and set aside the mutation which is impugned. 3. Heard the Learned counsel for the parties at length and perused the available record on file and the record file called from the court below, given thoughtful consideration. 4. 3. Heard the Learned counsel for the parties at length and perused the available record on file and the record file called from the court below, given thoughtful consideration. 4. The learned counsel for the respondents has submitted that the respondents are sole owner of land measuring 2 kanals and 11 marlas under survey No. 493 situated at village Kunan Kupwara and he continued to be in possession of the same as is evident from the revenue records. The answering respondent has constructed a residential house on the said land about 15 years back and is in exclusive possession. The two mutations bearing No. 133 dated 22.03.1984 and 134 dated 04.03.1984 have been recorded under section 4 & 8 of Agrarian Reforms Act wherein one Gh. Qadir Dar has been shown to be in possession of the said land as cultivators thereon and the said mutation has been alleged to have been recorded in presence of said Assad Dar and Ghulam Qadir. Besides the agreement has also been projected to have been recorded. Though the said land continue to be in possession of the answering respondent despite the aforesaid fraudulent mutations, coming to know about the said mutations, the answering respondent filed two appeals before the Agrarian Commissioner (Addl. Deputy Commissioner) Kupwara and answering respondent impleaded the legal heirs of said Ghulam Qadir Dar as party respondents. Sumaiya Jan was minor at that time, therefore, she was suited through her mother. Two applications for condonation of delay were also filed along with the said two appeals against mutation No. 133 and 134. Further submitted that during the pendency of the said appeal, good sense prevailing upon the respondent No. 2 & 3 who realized that the aforesaid mutation orders are non-existent on ground and that the said land continue to be in the possession of the answering respondent and they accordingly entered into a compromise with the answering respondent and admitted the case of the answering respondent, copies of the two compromise deeds are on the file of the court below and accordingly, the impugned mutation orders were set aside. The petitioner No. 2, who has no concern with the said property nor has any interest directly or indirectly filed the aforesaid revision before this Tribunal. The petitioner No. 2, who has no concern with the said property nor has any interest directly or indirectly filed the aforesaid revision before this Tribunal. He has also filed the revision in the name of Sumaya Jan, (daughter of Ghulam Qadir) and impleaded her as petitioner No. 1, otherwise she has not filed the revision. 5. The respondents has raised another question that the mutation under section 4 recorded on 22.07.1984 and mutation under section 8 recorded on 04.03.1984 that is before that mutations under section 4, Section 8 has been attested. This shows the fraud has been committed by the authorities and further submitted that the mutation orders do not state who identified the parties. The thumb impression do not disclose the name against each thumb impressions. Therefore, they are non-existent. The respondent No. 2 & 3 realized the said facts and conceded the appeal filed before the court below to allow the appeal. The petitioners cannot, therefore, be allowed to deprive the answering respondent herein from his property under the garb of mutation orders passed fraudulent in connivance with the revenue authorities to be in possession and use of the answering respondent as on date. 6. The other side has given complete vice versa position of the facts submitted therein that after attestation of these agrarian mutations both the ex-owner and prospective owner as well lived for years together and none was aggrieved of these mutations and were all satisfied with the same. Even after death of both the ex-owner as well as prospective owner none for years were ever aggrieved of these mutations. Obviously, because none of the legal rights of any persons were infringed or affected in any manner whatsoever and hence these mutations have attained finality in the eyes of law. 7. The present dispute is respondent No. 1, who is a stranger to the land in question, is said to have filed a frivolous and grossly time barred appeal against these mutations before ADC/Agrarian Reforms Commissioner, Kupwara and ADC within 14 days after presentation of this frivolous and non-maintainable appeal, on 09.10.2013 impugned order has been shown to have been made on the basis of compromise between respondent No. 1 (appellant before ADC) and other respondents. By virtue of this illegal impugned order, ADC/Agrarian Reforms Commissioner, Kupwara has set aside the mutations in question. By virtue of this illegal impugned order, ADC/Agrarian Reforms Commissioner, Kupwara has set aside the mutations in question. He further submitted that in said illegal compromise by and between respondents present petitioner No. 1 has been wrongly shown as minor, which she was not and her legal rights have also been usurped and as soon as petitioner No. 1 got knowledge of the impugned mutation, she along with petitioner No. 2 immediately filed the present revision petition before this Tribunal. 8. Appellant before ADC/Agrarian Reforms Commissioner, Kupwara present respondent No. 1 is a complete stranger with respect to the land in question. He is neither owner of the land nor tenant thereof. He has no locus-standi to file the appeal and unfortunately ADC failed to look into this vital aspect of the case. Under section 21(1) of Agrarian Reforms Act, an appeal can only be filed by an "aggrieved person". "Aggrieved person", under law has been defined as a person whose legal rights have been infringed or taken away. In the present case, none of the legal rights of appellant before ADC/Agrarian Reforms Commissioner, Kupwara are affected in any manner whatsoever. Mutation with regard to this land have been attested in presence of and with express consent of ex-owner. As such, appellant/respondent No. 1 has/had no right and locus-standi to file appeals against such mutations but ADC/Agrarian Reforms Commissioner, Kupwara has not looked into this important aspect of the case. Ex-owner of land has entered into Private Agreement with prospective owner, late father of petitioner in terms of Section 12 of Agrarian Reforms Act and it is on the basis of this Agreement the mutation has been attested. In view of this position, none has the right to challenge such a mutation especially when owner of land and tenant thereof have themselves admitted and compromised upon the issue. The ADC/Agrarian Reforms Commissioner, Kupwara has failed to look into this important and fundamental aspect of the case. 9. Appeals before subordinate officer have been filed after a long delay of 30 years and as such, the appeals on the face of it were/are barred by time/limitation and as per section 3 of Limitation Act, it is the duty of subordinate officer to reject the appeals at the very threshold. 9. Appeals before subordinate officer have been filed after a long delay of 30 years and as such, the appeals on the face of it were/are barred by time/limitation and as per section 3 of Limitation Act, it is the duty of subordinate officer to reject the appeals at the very threshold. The appeals are accompanied with applications for condonation of delay with duly attested affidavits then ADC/Agrarian Reforms Commissioner, Kupwara is bound by to follow the mandatory procedure laid down under Order 41 Rule 3-A of the Civil Procedure Code, where under he has to take objections from the petitioner (respondent before him) and then give full opportunity to the parties/petitioner to adduce evidence in support of their respective contentions after which Agrarian commissioner has to pass a speaking judicial order, allowing or disallowing the application for condonation of delay. Without condoning delay ADC/Agrarian Reforms Commissioner, Kupwara has no jurisdiction to lay his hands to the appeal case. 10. The ADC/Agrarian Reforms Commissioner, Kupwara has made impugned order in just fourteen days from the date of presentation of the appeal before him, that too in a hush manner and in hot haste, without looking into law, rules and procedure. 11. The petitioner No. 1 has been shown as minor and this has been done in order to usurp her legal rights. The fact is that petitioner No. 1 was major at the time when appeal has been filed. The ADC/Agrarian Reforms Commissioner, Kupwara has failed to actually look into the fact as to whether petitioner was really minor at that time or not and secondly if she was a minor then it was duty of ADC/Agrarian Reforms Commissioner, Kupwara to appoint a Guardian-AD-LITIUM for her. But unfortunately, ADC/Agrarian Reforms Commissioner, Kupwara has failed in his legal and statutory duties and as such petitioner No. 1 has been condemned unheard by the subordinate officer. 12. The impugned order is no order in the eyes of law. The impugned order has been made in absolute violation and derogation of Order 41 Rule 31 of Civil Procedure Code. Substantial and vital rights of petitioner have been decided illegally without giving her any opportunity of being heard, without any evidence, in a novel manner, which is unknown to law and settled legal procedure. ADC/Agrarian Reforms Commissioner, Kupwara has neither examined any revenue records nor has he taken and appreciated any evidence. Substantial and vital rights of petitioner have been decided illegally without giving her any opportunity of being heard, without any evidence, in a novel manner, which is unknown to law and settled legal procedure. ADC/Agrarian Reforms Commissioner, Kupwara has neither examined any revenue records nor has he taken and appreciated any evidence. He has, after illegally setting aside the mutations in question, send the case to Tehsildar to be virtually decided by Tehsildar. This at all is not permitted under law. ADC/Agrarian Reforms Commissioner, Kupwara cannot remand the case to Tehsildar. Such a jurisdiction is not vested in him, nor has Tehsildar the capacity to hear the parties and decide any case under Agrarian Reforms Act. 13. The impugned order is all cryptic, vague, non-speaking and unreasoned. It is at all no order, in the eyes of law. Since already compromise in terms of Section 12 has been entered into by landlord and tenant. As such under law no further compromise can be allowed in the same case, that too between strangers. Viewed thus, keeping above observations into consideration, the instant revision is accepted. Impugned orders passed by Ld. Additional Deputy Commissioner/Agrarian Reforms Kupwara dated 09.10.2013 is set aside. The revision is accordingly disposed of and shall be consigned to records after its due completion. The court below file, if called, be send back along with the copy of the order.