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2023 DIGILAW 716 (JK)

Sada Nand v. J&K Special Tribunal

2023-12-15

SINDHU SHARMA

body2023
JUDGEMENT 1. Petitioner is aggrieved of the order of the J&K Special Tribunal dated 20.09.1991 in case titled "Sadanand v. Prithipal & Ors.", vide which, the revision petition filed by the petitioner was disposed of and the order of the Agrarian Reforms Commissioner was upheld to the extent of holding the respondent Nos. 1 to 6 entitled to the share of 27 kanals 3 marlas. 2. Briefly stated the material facts are as under:- a. land measuring 100 kanals falling under khasra No. 1, 2, 3 and 68/17 at village Rajiani (Kathua) was given to the mother of late Amar Nath for the services rendered by him in the Army at war, since the father of late Amar Nath had already died, therefore, the land was given to the mother Kubjaan. b. The mother of Amarnath namely Kubjaan, who has four children Amarnath, Vasdev, Ratno Devi and Shanti Devi. It was on the death of Amar Nath that the land was given to his mother and, therefore, all these surviving three children became co-owners after the death of their mother. The mutation was, thus, accordingly attested in favour of Vasdev, Ratno Devi and Shanti Devi. c. In the jamabandi of Kharief 1968-69 of Village Rajiani Tehsil Kathua, Sadanand, son of Vasdev, was recorded as a protected tenant/co-sharer in 38 kanals 11 marlas each. Similarly in Khasra Girdawari of Kharief 1971 Sadanand was recorded as co-sharer. d. Vide mutation No. 67 dated 11.06.1979 (inheritance), the estates of Kubjaan was divided into three shares and devolved upon Koushalya W/o late Vasudev, Shanti Devi and Ratno Devi daughters of Kubjaan in equal shares. After the death of Ratno Devi, the share was devolved upon her successors. The father of the petitioner Sadanand and Ratno Devi and Shanti Devi were real brothers and sisters and respondent No. 4 to 9 and performa respondent No. 10 started cultivating the land as co-sharers. e. The controversy started vide mutation No. 79 dated 18.10.1986 under Section 4 of the Agrarian Reforms Act, land measuring 63 kanals and 6 marlas was hand over to the state on the basis of entries made in the revenue record in Kharief 1971 in favour of Vasdev, who was shown to be in cultivation of the petitioner as one of the co-sharer. f. The father of the petitioner was only entitled to 1/3rd of the land out of the land of his predecessor in interest and vide mutation No. 84, by virtue of private agreement under Section 12 of the Agrarian Reforms Act, Shanti Devi relinquished her share in favour of the petitioner. The performa respondent No. 10 also got land measuring 2 kanals and 5 marlas on the basis of exemption application filed by him under section 7 of the Agrarian Reforms Act. g. Aggrieved of the mutation under section 4 and 8 of the Agrarian Reforms Act, the respondents preferred an appeal in the court of Joint Agrarian Reforms Commissioner, Jammu, who vide order dated 18.10.1986 passed on mutation No. 79 attested by the Naib Tehsildar Kathua, vide which, 63 kanals and 6 marlas of land comprising of Khasra No. 1 min, 2 min, 160/84/68/17, 161/84/ 68/17 were mutated in the name of the State and on 15.11.1987, rights under Section 8 of the Agrarian Reforms Act were conferred in favour of the petitioner. h. The Agrarian Reforms Commissioner after considering the appeal held that the appellants and the respondents as discernible from the record have been recorded as co-sharers/co-owners in cultivating possession in Kharief 1971, as the respondents were cultivating the same as one of the owners and, therefore, the question of creating the tenancy on the land does not arise. Since the respondent being owner of the land in appeal was not liable to be recorded as tenant, thus, the provisions of Section 4 of the Agrarian Reforms Act was not applicable. Accordingly, the Joint Agrarian Reforms Commissioner set aside the impugned mutation Nos. 79 and 85. i. Aggrieved of the same, the petitioner filed a revision petition before the Jammu and Kashmir Special Tribunal. The learned Special Tribunal agreed with the Joint Agrarian Reforms Commissioner and held as under:- "... The learned Commissioner had, therefore, erred in accepting the appeals in toto and setting aside both the mutation orders. Accordingly, this revision petition is hereby is allowed to the extent that the respondents 1 to 6 will get 27K-3M while the remaining land will go to the petitioner after deducting 4K-19M which respondent No. 7 has already received on resumption. The learned Commissioner had, therefore, erred in accepting the appeals in toto and setting aside both the mutation orders. Accordingly, this revision petition is hereby is allowed to the extent that the respondents 1 to 6 will get 27K-3M while the remaining land will go to the petitioner after deducting 4K-19M which respondent No. 7 has already received on resumption. A fresh mutation order shall be attested in the light of the observations made herein above." j. Aggrieved of the order of the J&K Special Tribunal, the petitioner filed a writ petition challenging the same. This writ petition was decided vide order dated 26.04.1999, by holding that:- "...The argument raised is that the petitioner was in cultivating possession in the year 1971 and therefore, rights of other came to be extinguished. In my opinion that this is not correct approach, view expressed by the subordinate Revenue Authorities is a view to which no exception can be taken, the writ petition was found without any merit and dismissed." k. The LPA No. 288/99 filed against the order of the Writ Court was also dismissed vide order dated 26.10.2004. The petitioner approached the Apex Court by filing SLP against the same. The SLP was decided by holding that the matter requires reconsideration by the High Court. The appeal succeeds as the High Court has not discussed the application of any provisions of the Act and the matter was sent back. Thus, the question which arises for considering is firstly that whether the petitioner is liable to be recorded as tenant under the provisions of the Agrarian Reforms Act and secondly, whether the Agrarian Reforms Act is applicable to the case where the petitioner is one of the co-sharer/co-owner of the land and the cultivation of one co-sharer would be of the other. 3. Learned counsel for the petitioner submits that the petitioner has been cultivating the land on behalf of his maternal aunt and personal cultivation. The petitioner despite being a co-owner can claim to be a tiller of the land as he was cultivating the same and paying Gallahwatai to them. This is against the provisions of the land as the Agrarian Reforms Act clearly contemplates that any person not cultivating in personally in Kharief 1971, all rights entitled and interest of the person shall deem to have been distinguished and vested in the State. 4. This is against the provisions of the land as the Agrarian Reforms Act clearly contemplates that any person not cultivating in personally in Kharief 1971, all rights entitled and interest of the person shall deem to have been distinguished and vested in the State. 4. The other question is whether the provisions of the Act would be applicable to those who were not personally cultivating the land in Kharief 1971. This apart, the appeal of the respondent will also be time-barred. The landed property was left behind by the common ancestors of the parties and has devolved to the parties to their mother late Kubjaan, which has vested in all her children in equal shares i.e. one son Vasdev, daughters Ratno Devi and Shanti Devi and therefore, all the children were deemed to be in joint possession of the property as co-sharers. It is well settled that personal cultivation by a co-sharer shall deem to be a personal cultivation of all the co-sharers and a co-sharer in cultivating possession cannot claim to be a tenant vis-a-vis the other co-sharers. This would create a situation where a person would be both landlord and a tenant, therefore, there was no occasion for the respondents to attest the mutation under Section 4 and 8 of the Agrarian Reforms Act. The Agrarian Reforms Commissioner as well as the Special Tribunal had rightly come to the conclusion that the provisions of the Act are not applicable to the mutations. There is no infirmity or illegality in the order of the Tribunal. 5. In view of the aforesaid facts and circumstances, there is no merit in this petition and the same is, accordingly, dismissed.