Jammu & Kashmir High Court
Bhadur Singh vs Member J And K. Spl. Tribunal And Ors. on 13 March, 2008
Equivalent citations: 2008(2)JKJ74
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT Nisar Ahmad Kakru, J.
1. This Letters Patent Appeal owes its origin to the mutations, effected by the Tehsildar Udhampur, under Sections 4 and 8 of the Jammu and Kashmir Agrarian Reforms Act, vide No. 603 of 1974 reflected in order dated 29.11.1985 and No. 659 dated 29.3.1986 respectively, conferring the ownership rights on the appellant herein, in respect of the land, measuring 23 kanals and 14 marlas, comprising survey No. 180-min, situate at village Sundrani, Tehsil and District Udhampur, (for brevity subject matter of the lis.
2. The said mutations are founded on the conclusions that Ram Chand was the owner of 92 kanals and 4 marlas of land, out of which 23 kanals and 14 marlas were under tenancy of the appellant Bahadur Singh, as gathered from the orders and conceded to by Ram Chand. Being aggrieved, the mutations were questioned by medium of an appeal before the Director Land Records Jammu, having the appellate powers of the Commissioner Agrarian Reforms (for short Commissioner) but of no avail, consequently, challenged before the Jammu and Kashmir Special Tribunal (hereinafter Tribunal) but in vain. Both the judgments of dismissal of Appeal and Revision dated 9.12.1994 and 11.12.1996 by the Commissioner and the Tribunal respectively, became subject matter of Writ Petition No. OWP 79/97 at the instance of the private respondents herein, which was allowed by judgment dated 2.6.2000. Hence this Letters Patent Appeal against the judgment of the writ court, by the affected respondent in the writ petition, appellant herein.
3. The tenant namely Bahadur Singh (the predecessor in interest of the ex land owner Ram Chand), beneficiary of the mutations (appellant herein) will be referred to as "APPELLANT" and the persons claiming to be the owners of the land (appellants before the Commissioner), Petitioners in the Revision Petition (before the Tribunal), Writ Petitioners before the writ court and respondents in this Letters Patent Appeal as "WRIT PTITIONERS".
4. A bare perusal of the judgment reveals that the learned single judge was much persuaded for interference by expression "...the appellant does not enjoy locus standi..." used by the Commissioner in his order and these words have been interpreted by the writ court virtually to mean "no cause of action". What the Commissioner actually meant, the reading of word locus standi needs to be read in the context it has been used. Merely reading the word locus standi in isolation of the context is not enough and such reading does not satisfy the requirement of law. What is necessary, is to read the whole para in its entirety wherein expression locus standi is used. To achieve the objective relevant para of the Commissioner's judgment is extracted.
There is no substantial evidence/ground to show that the appellant enjoy any locus standi over the land under appeal. The record available on the file makes it amply clear that kh. No. 180 measuring 23k-14m. from North side Shamilat Deh too has been kept in claim of Ram Chand owner. The appellant does not figure any where
5. Read as a whole it is manifest from the judgment of the Commissioner that he wants to convey that the claim of the writ petitioner is bereft of reason, logic and is not founded on any evidence. He means further to say that the material available establishes ownership of Ram Chand and tenancy rights of the respondent. This is in what background the absence of locus standi has been used by the writ court and nothing more. In that view of the matter, with respects, we record our disapproval to the view taken by the writ court.
6. What has further prevailed on the Writ Court, is the claim of the writ petitioners that the subject matter of the lis is "Shamilat land". To sustain the view taken, the learned Counsel for the private respondents has made a similar oral submission, claiming entitlement to own and possess it proportionately. To deal with the issue, the relevant observation of the writ court is reproduced hereunder:
In shamilat property the residents of the village have some say in the matter Independently of the "above, petitioners were claiming to be co-owners alongwith Ram Chand....
The above said observation needs to be appreciated in the light of the case set out in the writ petition and the relevant averment may be noticed:
Para 8.
That the petitioners had filed a civil suit even against Ram Chand that he should not interfere with the possession of the petitioners. In the said suit Ram Chand had clearly admitted that the land measuring 48 kanals and 9 marlas bearing khasra number 180 was in possession of the petitioner and he will not cause any interference in any manner....
7. The writ petitioners having placed reliance on the decision handed down in the suit, it becomes imperative to ascertain the fall out of the judgment and decree of the civil court in the suit filed by the writ petitioners, against Ram Chand (the predecessor in interest of the appellant) in the Court of Sub Judge Udhampur, recitals whereof reveal that a claim was laid on survey number 180 by the writ petitioners over a chunk of land measuring 48 kanals and 19 marlas and on the remaining part of the survey number 180 involving an area of 92 kanals and 4 marlas, the right of ownership was staked by Ram Chand which was not countered by the writ petitioners, resultantly, the suit culminated in a compromise decree which dates back to 25.8.1983. In consequence thereto, the writ petitioners retained 48 kanals and 19 marlas and Ram Chand 92 kanals and 4 marlas inclusive of the subject matter of the lis (as reflected in the orders of mutation and the judgments of the appellate and Revisionary Court), admitting no ambiguity whatsoever, that the decree was obtained by the writ petitioners on the set of facts representing claim of exclusive possession, accordingly availed of its benefits. Having reaped the advantages of exclusive possession, on the strength of the decree and the judgment, the writ petitioners have opted for backtracking which cannot be countenanced. More so, co-ownership being no body's case, therefore an irresistible conclusion that the writ court has travelled beyond the pleadings.
8. In furtherance of an attempt to prevent the appellant from deriving the benefits of the orders conferring proprietary rights upon him, the learned Counsel for the writ petitioners has made an attempt to encompass the claim of co-ownership within ambit of Section 7 of the Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 which reads:
7. Description of lands owned by a proprietor.
For the purposes of Sub-section (1) of Section 4,the land owned by a proprietor shall include:
lands of any class held or acquired in ownership by the proprietor;
(partible Shamilat lands held by the proprietor) to the extent of his share, whether amalgamated with and entered in his ownership holding as a result of partition or entered in his name under an undivided Shamilat holding. Explanation:- "partible Shamilat land" means such land as is capable of being partitioned....
9. True it is that Clause (ii) Sub-section (1) of Section 7 of the Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 provides that the undivided shamilat holding has to be treated proprietary land of those who have held or acquired it. But question that arises is whether at all subject matter of the lis was in joint possession of the parties. To have the answer it needs to be appreciated that as per the finding of fact returned by the mutation allotting authority, the land in question is part of the landed estate that had fallen to the share on one Ram Chand as is evidenced by stance disclosed by the writ petitioners in their plaint referred to above, besides, Akse Tatima Shajra which substantiates the exercise of option of right of selection by Ram Chand (the predecessor in interest of the appellant) over an area of 92 kanals and 4 marlas in terms of Clauses (a) and (b) Sub-section (1) Section 14 of the Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007. To appreciate consequence of the said option relevant portion of the section is extracted:
14. Demarcation of land left with proprietors An assistant Collector of the 1st class or any other officer not below the rank of Tehsildar authorised by the Revenue Minister in this behalf shall, as soon as may be after this Act comes into force, serve a notice on the proprietor, and in the case of a proprietor who is an evacuee as defined in the Jammu and Kashmir State Evacuees' (Administration of Property) Act,2006, on the Custodian to select the land mentioned in Clause (a) of Sub-section (2) of Section 4 and intimate to him the khasra numbers and the area thereof within such period as may be specified, and shall:
(a) If such proprietor complies with the notice, direct that the land so selected be immediately demarcated on spot; and
(b) In case such proprietor fails to comply with notice, himself reserve the land so reserved shall be deemed as if it had been selected by such proprietor himself.
10. A plain reading of Clauses (a) and (b) Sub-section (1) Section 14 of the Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 makes the scheme of things manifest that the selection of the land by the proprietor has to be followed by demarcation on the spot. On the strength of this provision of law, a case is set out by appellant that his predecessor in interest namely Ram Chand had made the selection which was followed by demarcation. To substantiate the contention reliance is placed on Aksi Tatima Shajra forming annexure B to the memo of appeal. In case of grievance the writ petitioners were not remedy less and the dispute if any, determination could have been sought by invocation of remedy in terms of Section 16 of the Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 which is reproduced:
16. Determination of Disputes (1) if during the making, revision or preparation of any record or in the course of any inquiry under this Act a dispute arises as to any matter of which an entry is to be made in a record or in a register or mutation, a revenue officer not below the rank of on Assistant Collector of the 1st Class may, of his own motion, or on the application of any party interested, and after such inquiry, as he thinks fit, determine the entry to be made as to that matter.
(2) if any such dispute the revenue officer is unable to satisfy to himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by inquiry [who is the person who has remained in actual possession for a longer duration within the period between Rabi,2005,and 1st Katik, 2007] and shall by order direct that person be put in possession thereof, and an entry in accordance with that order be made in the record or register.
[(3) Any order passed under Section 15 or this section shall, subject to the other provisions of this Act, be deemed to be the final determination of the right or title in respect of land about which an entry is to be made in the record or register.
11. Section 16 above postulates remedial measures for determination of the disputes by the Revenue Authority which casts an obligation on the Assistant Collector to address to the dispute, determine the entry in the revenue records and grievance, if any, could have been registered before the Assistant Collector whose decision is appealable under Section 30 of the Big Landed Estates Abolition Act, Svt. 2007 but fact remains that the option of selection by predecessor in interest of the appellant namely Ram Chand followed by demarcation was not challenged at all and it was for the first time that a claim of undivided shamilat was advanced before the writ court. In this behalf it is relevant to notice that 23 kanals and 14 marlas were found by Tehsildar under the tenancy of the appellant Bahadur Singh in kharif 1971 on the basis of the evidence which has received the concurrence of the Appellate and Revisionary forums and the concurrent findings are returned by the forums of competent jurisdiction and well known to the statute. It is not a case of no evidence. That apart, no material even worth the name was brought on record before forums below not even before the writ court which would suggest misreading or misappreciating the evidence by any of the forums who have dealt with the matter, much less sufferance of the findings with perversity, therefore, no option for us but to record our disagreement with the indulgence displayed by the writ court with the concurrent findings of the fact.
12. Reverting to the basic mutation viz. 603 it will be advantageous to notice the relevant portion of Section 4 of the Agrarian Reforms Act;
4. Vesting in the State of rights in land not held in personal cultivation.
(1) Notwithstanding contained in any law for the time being in force, but subject to the provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it personally in Kharif 1971, shall be deemed to have extinguished and vested in the State, free from encumbrances, with effect from the first day of May, 1973.
The section envisages vesting of the ownership rights of a landlord in the State free from all encumbrances if the land was not in his personal cultivation in Kharif 1971. The scheme of the Act clearly recognises a tiller as a prospective owner of the land which was in his personal cultivation in Kharif 1971 providing further for conferment of the proprietary rights in lieu of levy. The appellant is beneficiary of the same scheme on the basis of evidence adduced and material produced before the Tehsildar which has brought him to the conclusion that the appellant-Bhadur Singh was cultivating the subject matter of the lis personally in Kharif 1971 and Ram Chand was the ex landlord. The finding so returned renders the writ petitioners strangers to the subject matter of the lis. The view so taken pales into insignificance the feeble oral mention made before us by learned Counsel for the writ petitioner that ownership rights of a landlord cannot be extinguished in respect of Shamilat Hasad rasad Khewat" because such objection if of any legal consequence would available to the ex land owner only, which status the writ petitioners have failed to establish. More so, there being nothing patent before us which would show that the finding is not based on reasonable appreciation of evidence, we are loath to substitute the concurrent findings of fact by a finding to the contrary.
13. At the risk of repetition it needs to be noticed that as per basic impugned order, the right to title and interest of ex landlord was extinguished vide mutation number 603. Assuming for the sake of argument that the writ petitioners had any ownership interest in the subject matter of the lis, on that hypothesis their remedy is traceable to Section 7 of the Jammu and Kashmir Agrarian Reforms Act, 1976 which reads;
(1) Subject to the provisions of this section:
(a) An individual whose rights in land have been extinguished by Section 4 who was entitled to recover rent in Kharif, 1971 directly from the tiller, may resume land outside demarcated forests for purposes of bonafide personal cultivation;
(2) Resumption of land permitted by Sub-section (1) shall be subject to the following conditions namely:
(n) the application for resumption shall be made in the prescribed manner within (one year) of the commencement of this Act.
14. The record relating to the mutation number 603 in respect of subject matter of the lis viz land measuring 23 kanals and 4 marlas has unveiled that it was attested way back in the year 1974. This fact has neither been disputed before the statutory forums nor before the writ court by the writ petitioners, yet it was challenged for the first time by medium of an appeal on 16.11.1989 that is after fifteen years. On what ground nothing is gathered from the writ petition suggesting that the writ petitioners had nothing in their armoury to urge against. Situation is no way different before the Commissioner and the Tribunal, Be that as it may, the Agrarian Reforms Act enshrines sufficient safeguards to the landlords by providing them a right to resume the property but application had to be laid within one year of the commencement of the Act which has come into force vide SRO-295 w.e.f.13.7.1978. Reckoned from the date of enforcement of the Act, the last date for filing the application for resumption was 12th of July 1979 but indisputably no application seeking resumption under the statute was laid.
15. To sum up we can't resist a few observations like the ones that had the writ petitioners any interest in the subject matter of the lis they would have indicated so in the plaint filed in the suit dwelt upon hereinabove but neither claim was laid nor did they counter the right of ownership advanced by the appellant's predecessor in interest namely Ram Chand and having represented so, it appears Ram Chand was prompted to concede to the ownership of the writ petitioners over 48 kanals and 19 marlas, preventing him (Ram Chand) from opposing the suit. The correctness of Akse Tatima Shajra was also not disputed although Ram Chand had produced it in support of his written statement depicting his sole ownership and admittedly it was never questioned. On the face of the pleadings of the parties to the suit, besides, selection of 92 kanals and 4 marlas by Ram Chand on the strength of the provisions of the Big Landed Estates Abolition Act, absence of rebuttal on the part of the respondents herein to the right of ownership claimed by Ram Chand in his written statement, absence of material to suggest throwing of challenge to the Akse Tatima Shajrah, besides other circumstances mentioned in the preceding paras on the one hand refute the contention of joint possession, on the other establish the exclusive possession of Ram Chand by selection on the strength of the provisions of the Big Landed Estates Abolition Act over an area of 92 kanals and 4 marlas. The facts so narrated coupled with the decree favouring the respondents to the extent of 48 kanals and 19 marlas which has attained finality, sufficiently amounts to recognition of the ownership rights of Ram Chand followed by conferment of ownership rights on the appellant inducing a reasonable belief that the respondents had consented to such ownership, thus prevented by acquiescence to turn around and question his ownership in respect of subject matter of the lis a part of 92 kanals and 4 marlas.
16. Analysing from any angle the judgment of the writ court cannot sustain, accordingly set aside without any order as to costs.