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2022 DIGILAW 214 (JK)

Heam Devi v. J&K Special Tribunal

2022-05-07

SINDHU SHARMA

body2022
JUDGMENT : 1. Petitioners are aggrieved of the order dated 16.02.2018 passed by the Jammu & Kashmir Special Tribunal, Jammu in case titled 'Chatter Singh & Ors. v. Sanjeev Anthal & Anr.' by virtue of which, the revision filed by the petitioners under the J&K Agrarian Reforms Act has been dismissed and the order dated 10.11.2016 passed by the Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Udhampur has been upheld. 2. Briefly stating the facts which arise in this petition are as under; Mutation of the land measuring 32 Kanals 12 Marlas falling under Khasra No. 50 of village Batna, Tehsil Chenani was attested in favour of one Mehndi under Section 8 of the Agrarian Reforms Act. This Mutation was challenged by the petitioners before the Deputy Commissioner, Udhampur with the powers of Commissioner Agrarian Reforms, and the same was set aside vide order dated 27.10.2005. The Addl. Deputy Commissioner (with powers of Commissioner Agrarian Reforms) allowed the appeal, set aside the Mutation No. 62, dated 29.08.1980 and remanded the case to the Tehsildar, Chenani for holding fresh enquiry. The land measuring 32 Kanals 12 Marlas falling under Khasra No. 50 of village Batna, Tehsil Chenani was owned by Thakur Udhay Chand S/o Bashesher Chand, who died in the year 1978. This land fell in the share of Little Chand grand son of Thakur Udhay Chand, the peititoners, thus, became tenants of Sh. Little Chand. Mehndi and his brother Titru, however, were recorded as occupancy tenants by virtue of Mutation No. 62, dated 29.08.1980, the ownership was, therefore, transferred in favour of Mehndi, as the owner was out of possession, therefore, the land was vested in the State under Section 4 of the Agrarian Reforms Act. 3. This Mutation Order No. 62, dated 29.08.1980 was challenged by petitioner No. 1 claiming possession along with his three other brothers. The appeal was filed against Punjabo S/o Mehndi and the Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Udhmapur accepted the appeal, setting aside Mutation No. 62, dated 29.08.1980 and remanded the case back to the Tehsildar, Chenani for holding fresh enquiry and attesting mutation in accordance with law. 4. The appeal was filed against Punjabo S/o Mehndi and the Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Udhmapur accepted the appeal, setting aside Mutation No. 62, dated 29.08.1980 and remanded the case back to the Tehsildar, Chenani for holding fresh enquiry and attesting mutation in accordance with law. 4. The Tehsildar, Chenani after holding enquiry on spot in presence of persons of the Village as well as owner Little Chand found the land in possession of the petitioners in Kharif-1971 and attested the Mutation No. 126 in their favour on 01.08.2006. 5. One Sanjeev Anthal S/o Late Sat Pal Chand filed an appeal against the Mutation No. 126 (Remand Case) decided on 27.05.2010 before the Additional Deputy Commissioner, Udhampur (with the powers of Commissioner, Agrarian Reforms). The Addl. Dy. Commissioner, Udhampur (with powers of Commissioner Agrarian Reforms) accepted the appeal and set aside the Mutation order holding that Sanjeev Anthal being the owner, had no notice, of attestation of mutation which was attested in his absence and set aside the same vide order dated 10.11.2016 with the following observations:- “I have gone through the contents of appeal and have heard the arguments put forth by both the counsels. I have also gone through the record available on the file, including the orders passed on Mutation No. 62 and 84 of Agrarian Reforms Act and have come to the conclusion that while passing the order on mutation under appeal, Tehsildar Chenani did not summon the owners of the estate to reach out at the just conclusion. It was mandatory on the part of the Tehsildar to go into the back record relating to the appeal/case. The impugned order lacks the application of mind on behalf of the Tehsildar as he did not consider the case related facts in depth. As such the appeal is accepted and the order passed on Mutation No. 126 [Remand case], dated: 27.05.2010 for land measuring 32 kanals 12 marlas under khasra No. 50 of village Batna Tehsil Chenani is set-aside. The case is remanded to Tehsildar Chenani for holding denovo enquiry on spot in the presence of both the parties including majority of ex-owners/co-sharers and to pass appropriate orders accordingly. Stay order, if any, issued by this court, is vacated and the file be consigned to records after its due completion". 6. The petitioners challenged this order dated 10.11.2016 passed by the Add. Stay order, if any, issued by this court, is vacated and the file be consigned to records after its due completion". 6. The petitioners challenged this order dated 10.11.2016 passed by the Add. Deputy Commissioner in a revision petition before the J&K Special Tribunal, Jammu (hereinafter referred to as Tribunal) on the ground that the petitioners being in cultivating possession of the disputed land along with his brothers had assailed the order of attestation of Mutation No. 62, dated 29.08.1980 against Punjabo S/o Mehndi as Mehndi had also died. This appeal was accepted by the Additional Deputy Commissioner, Udhampur vide order dated 27.10.2005 and the case was remanded for fresh enquiry by the Tehsildar Chenani.The Tehsildar, Chenani after conducting the enquiry on spot in presence of respectable persons of Village, Panchayat members and the owner of the land Little Chand, attested Mutation No. 126 conferring ownership rights in favour of the petitioners. It was submitted that Thakur Udhay Chand S/o Bashesher Chand being ex-owner of the land in dispute died in the year 1978 and this mutation of inheritance was attested in the name of his four sons including Sat Pal. After the death of Thakur Udhay Chand, the aforesaid land fell in the share of Little Chand S/o Baldev Chand. None of the sons of Thakur Udhay Chand including Sat Pal, father of respondent No. 3, had ever questioned Mutation No. 62, dated 29.08.1990 attested under Sections 4 & 8 of the Agrarian Reforms Act. Sat Pal died in the year 1992 and did not claim any share in the disputed land during his lifetime. He also did not dispute the cultivating possession of the petitioners. Respondent No. 3 filed an appeal after 5 1/2 years and, that too, without seeking any condonation of delay by filing an application for the same. Even though, appeal was barred by limitation. It is also not in disputed that the petitioners were cultivating the land on behalf of Little Chand. The mutation was attested in presence of Little Chand, who certified that the possession is with the petitioners along with others. 7. Even though, appeal was barred by limitation. It is also not in disputed that the petitioners were cultivating the land on behalf of Little Chand. The mutation was attested in presence of Little Chand, who certified that the possession is with the petitioners along with others. 7. The respondent No. 3 is the son of Sat Pal Chand and since his father-Sat Pal did not question the mutation, he had no right to file the appeal because his father during his lifetime, did not claim any right in the said property, as Little Chand had accepted the possession of the petitioners at the time, when the aforesaid mutation was attested. The Additional Deputy Commissioner accepted the appeal on the sole ground that Sanjeev Anthal being the owner was not summoned, however, he ignored the fact that ownership stood extinguished because the land was not in his cultivating possession, and the mutation attested under Section 4 had attained finality. 8. The appellant did not challenge the Mutation attested under Section 4 of the Act, therefore, he could not challenge the same under Section 8 of the Act. 9. The appeal preferred by the appellants was barred by limitation, but the same was allowed without condoning the delay in filing the same. The order dated 10.11.2016 suffers from apparent illegality and it was erroneous and without any application of mind but the same was upheld by the Special Tribunal. 10. The appeal filed by the respondent was allowed after more than 5 1/2 years when no application for condonation of delay was filed. Rule 48-A of the Agrarian Reforms Act provides that the provisions of CPC to the appeal filed under the Act shall apply mutatis mutandis to all the appeals under Section 3 of the Act. Thus, every suit, appeal or application filed beyond the purview of limitation provided shall be dismissed. It is mandatory to see whether the appeal is within time and Section 3-A provides an application for condonation of delay and same can be allowed, if sufficient cause is made out and this plea has to be taken in the first instance and, therefore, in the absence of any such application, the appeal itself was barred by limitation. 11. It is mandatory to see whether the appeal is within time and Section 3-A provides an application for condonation of delay and same can be allowed, if sufficient cause is made out and this plea has to be taken in the first instance and, therefore, in the absence of any such application, the appeal itself was barred by limitation. 11. The Hon'ble Supreme Court in its judgment titled Ragho Singh v. Mohan Singh & Ors., (2001) 9 SCC 717 has settled this proposition of law, wherein it has been as under:- 6. We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under Section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. 12. In the present case, neither any application for extension of time was filed nor the delay had otherwise been condoned, the impugned orders are, therefore, patently illegal and are without any jurisdiction, same cannot be sustained on any ground whatsoever. 13. In view of the aforesaid discussion, this petition is allowed, and, accordingly, impugned order dated 16.02.2018 passed by the J&K Special Tribunal and also the impugned order dated 10.11.2016 passed by the Addl. Deputy Commissioner, Udhampur with powers of Commissioner Agrarian Reforms are quashed.