Jammu & Kashmir High Court
Nanak Singh vs Financial Commissioner (Revenue) on 20 April, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 02.04.2024
Pronounced on: 20.04.2024
OWP No. 606/2004
1. Nanak Singh .....Appellant(s)/Petitioner(s)
aged 67 years, S/O Late Lahori
R/O Paloura, Tehsil Jammu.
Through: Mr. Surinder Singh, Advocate.
vs
1. Financial Commissioner (Revenue) ..... Respondent(s)
J&K State Civil Secretariat, Srinagar.
2. Divisional Commissioner Jammu.
3. Assistant Commissioner Revenue,
Jammu.
4. Prithvi Singh,
S/O Mahantoo (Dead)
5. Pawan Singh
6. Kamal Singh
(Both Sons of Sain)
Respondent Nos. 4 to 6 are R/O
Village Paloura, Tehsil Jammu
Through: Mr. V. R. Wazir, Sr. Advocate with
Mr. Razat Sudan, Advocate.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1. The petitioner has challenged order dated 17.02.2004 passed by the Financial Commissioner (Revenue)/respondent No. 1, whereby the said authority has reviewed its order dated 05.06.1997 and approved the order of respondent No. 2 dated 23.07.1992 and order of respondent No. 3 dated 13.08.1990.
2. The brief facts emanating from the pleadings of the parties are that the petitioner filed an application under Section 105 of the Land Revenue Act against the private respondents before the Collector (Assistant 2 OWP No. 606/2004 Commissioner Revenue) Jammu (respondent No. 3) seeking partition of land measuring 443 Kanals and 6 Marlas comprised in Khasra Nos. 974, 999, 986 and 988 situated in Village Paloura, Tehsil Jammu and for restoration of possession of the said land after its partition to the extent of respective shares of the parties.
3. As per the case of the petitioner, he along with the non applicants were recorded as co-sharers of the aforesaid land. The Collector i.e. respondent No. 3 herein dismissed the application of the petitioner vide its order dated 13.08.1990 by holding that the said application is not maintainable. It seems that the petitioner assailed the aforesaid order by way of an appeal before the Divisional Commissioner, Jammu/respondent No. 2 herein, but the said appeal was dismissed as withdrawn in terms of order dated 23.07.1992. Thereafter, the petitioner again challenged order dated 13.08.1990 passed by the Assistant Commissioner Revenue/respondent No. 3 by filing a revision petition before respondent No. 1 i.e. the Financial Commissioner (Revenue).
4. The learned Financial Commissioner after hearing the parties passed a detailed order dated 05.06.1997, whereby the revision petition was allowed and both the orders of the Assistant Commissioner Revenue and the Divisional Commissioner were set aside. It is pertinent to mention here that the private respondents had raised a plea before the Financial Commissioner that they were tenants of the land in question and, as such, the same cannot be subjected to partition between the petitioner and the private respondents. The learned Financial Commissioner (Revenue) while passing order dated 05.06.1997 3 OWP No. 606/2004 observed that co-sharers hold the land in joint trust and that every co- sharer has a right to claim the share in the joint holding. It was also observed that even if a co-sharer is in cultivating possession of any portion of the land, the same does not become a case of tenancy. Accordingly, it was held that the land in question is liable to be partitioned amongst co-sharers.
5. The aforesaid order of the Financial Commissioner was assailed by the private respondents by filing a review petition before the same authority. By virtue of the impugned order dated 17.02.2004, the learned Financial Commissioner reviewed its order dated 05.06.1997 and upheld order dated 13.08.1990 passed by the Assistant Commissioner Revenue and order dated 13.07.1992 passed by the Divisional Commissioner. While passing the said order, the learned Financial Commissioner observed that the petitioner was not in possession of any portion of the estate and, as such, in terms of Rule 12 of the Partition Rules, 1970, he cannot seek partition of the land without applying for possession of the land. It was also observed that once the appeal against the order of the Assistant Commissioner Revenue was dismissed as withdrawn, no further appeal/revision could have been brought before the Financial Commissioner.
6. The petitioner has challenged the impugned order on the grounds that the learned Financial Commissioner while reviewing its earlier order has travelled beyond the scope of order 47 of CPC, which prescribes the limits within which jurisdiction of review can be exercised. It has been further contended that neither there was any error on the face of the 4 OWP No. 606/2004 record of the order dated 05.06.1997 nor the private respondents had brought any new fact before the Financial Commissioner (Revenue), so as to persuade the said authority to review its earlier order.
7. It is pertinent to mention here that initially the private respondents failed to contest the writ petition and this Court vide order dated 20.10.2010 allowed the writ petition and the impugned order dated 17.02.2004 was set aside. However, the said order came to be challenged by the private respondents by way of an LPA bearing LPA(OW) No. 1/2011. The said appeal was decided by the Division Bench of this Court in terms of order dated 28.11.2016 and order dated 20.10.2010 passed by this Court was set aside and the writ petition was restored for further hearing on merits.
8. The private respondents have contested the writ petition by filing reply thereto. The private respondents, in their reply have contended that the land in question has all along and continuously remained under their cultivating possession. It has been submitted that the possession of private respondents on the land in question cannot be termed as possession of other co-sharers, who have been continuously out of possession of the said land. It has been contended that it is only the possession of brothers and sisters which can be protected in terms of Clause (e) of Sub Section (12) of Section 2 of the J&K Agrarian Reforms Act and not the possession of any other co-sharer. It has also been contended that once the petitioner had withdrawn his appeal against order dated 13.08.1990 passed by the Assistant Commissioner Revenue, the Financial Commissioner had no jurisdiction to exercise 5 OWP No. 606/2004 his powers of revision. It has been further contended that the petitioner could not have resorted to the partition of the land in question by invoking the provisions of J&K Land Revenue Act when the subject matter of the dispute is covered under the provisions of the Agrarian Reforms Act. Thus, according to the private respondents, the order dated 05.06.1997 has been rightly reviewed by the Financial Commissioner in terms of the impugned order.
9. I have heard learned counsel for the parties and perused record of the case.
10. As already stated, the impugned order has been passed by respondent No. 1/learned Financial Commissioner in exercise of his power of review. The power of review is governed by the provisions contained in Order 47 Rule (1) of the CPC. As per the said provision, review of a judgment can be made if it is shown by the aggrieved person that a new and important matter or evidence which, after exercise of due diligence was not within the knowledge or could not be produced by him, has been discovered. The power of review can also be exercised if there is some mistake or error apparent on the face of the record. Review of a judgment/order can be made for any other sufficient reason. The expression "for any other sufficient reason" has been interpreted by the Courts to mean for a reason analogous to the first two reasons.
11. Adverting to the facts of the instant case, vide order dated 05.06.1997 the learned Financial Commissioner had observed that co-sharers hold the land as joint holding and that there is no question of any tenancy between them. On the basis of this reasoning, the learned Financial 6 OWP No. 606/2004 Commissioner came to the conclusion that possession of private respondents herein of the land in question can be termed as possession of the petitioner and, as such, Rule 12 of the Partition Rules would not come in the way of the petitioner for seeking partition of the joint holding. This view of the Financial Commissioner has been set aside by the same authority by virtue of impugned order by observing that the petitioner is not in possession of any portion of land in question, as such, Rule 12 of the Partition Rules would be attracted. It was not open to respondent No. 1 to review his earlier order on the basis of this reasoning. If at all, the opinion expressed by the learned Financial Commissioner in its order dated 05.06.1997 was erroneous, the same could not be corrected by him by exercising the jurisdiction of review. It is only the higher forum that could have corrected the said opinion and not the same authority by exercising the power of review.
12. So far as the observation of the Financial Commissioner made in the impugned order that earlier proceedings before the Divisional Commissioner had been withdrawn by the petitioner is concerned, the said fact has been taken note of by the said authority in its earlier order dated 05.06.1997 and it is not a case where this fact has been brought to the notice of the Financial Commissioner for the first time during the review proceedings. Thus, on this ground also the learned Financial Commissioner had no jurisdiction to exercise his power of review.
13. Apart from the above, it is not in dispute that the petitioner and the private respondents are co-sharers of the land in question. The contention of the private respondents is that they are in exclusive 7 OWP No. 606/2004 possession of the property in question and that they are the tenants of the said property. The learned Financial Commissioner has, vide her order dated 05.06.1997 rightly concluded that there cannot be a tenancy between the co-sharers. A Division Bench of this Court has, in the case of "Sukhdev Singh Vs. State of J&K and others" bearing LPA(OW) No. 09/2004 decided on 08.03.2024 clearly held that a co-sharer has interest in every inch of the land unless or until partition takes place by metes and bounds. It has been further held that Rule 12 of the Partition Rules can be applied only in cases of persons who have been ousted and dispossessed and that a co-sharer is to be treated as in deemed possession of the land. In view of this position of law, the view taken by the learned Financial Commissioner that the petitioner is deemed to be in possession the joint holding and, as such, is entitled to seek partition of the joint holding, did not admit of any interference that too in exercise of review jurisdiction.
14. It is true that the petitioner through attorney had withdrawn his appeal against order dated 13.08.1990 passed by the learned Assistant Commissioner Revenue, but in terms of Section 15 of J&K Land Revenue Act, the Financial Commissioner has suo moto power of revision. Sub Section (1) of Section 15 of the J&K Land Revenue Act provides that the Financial Commissioner can at any time call for the record of case pending before or disposed of by any Revenue Officer under his control. Thus, in exercise of suo moto power also the learned Financial Commissioner could have interfered in the order of the Assistant Commissioner Revenue. Therefore, it cannot be stated that the 8 OWP No. 606/2004 learned Financial Commissioner was not vested with the jurisdiction to revise the order passed by the Assistant Commissioner Revenue.
15. Learned Senior counsel appearing for respondents has contended that the Financial Commissioner, while passing order dated 05.06.1997 could not have invoked the provisions of the J&K Land Revenue Act as the mutation in respect of the land in question was attested in favour of the private respondents under the provisions of J&K Agrarian Reforms Act. In this regard, the learned Senior counsel has referred to the provisions of Section 42 of the J&K Agrarian Reforms Act.
16. In the above context, it is to be noted that the private respondents have not placed on record anything to suggest that the mutation under the provisions of J&K Agrarian Reforms Act has been attested in their favour in respect of the subject land. Even if it is assumed that any such mutation has been attested in favour of the private respondents, still then the provisions contained in Section 42 of the J&K Agrarian Reforms Act do not come in the way of a person to seek partition of the land governed by the aforesaid Act by invoking the provisions under Section 105 of the J&K Land Revenue Act. In this context, the provisions contained in Section 42 of the J&K Agrarian Reforms Act are required to be noticed and the same are reproduced as under:-
"42. Inapplicability-(1) With effect from the commencement of this Act, the provisions of-
a) The Jammu and Kashmir Tenancy Act, Samvat 1980;
b) The Jammu and Kashmir Alienation of Land Act, Samvat 1995;
c) The Jammu and Kashmir Land Revenue Act, Samvat 1996;
d) The Jammu and Kashmir Big landed Estates Abolition Act, Samvat 2007;9 OWP No. 606/2004
e) The Jammu and Kashmir Consolidation of Holdings Act, 1962; and
f) The Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1996;
And the rules, standing orders and instructions issued thereunder shall, so far as they are inconsistent with the provisions of this Act and the rules framed and instructions issued thereunder, cease to apply to the land to which this Act applies."
(2) All applications, suits and proceedings, pending before any Revenue Officer, Civil or Revenue Court, any authority acting under the Jammu and Kashmir Consolidation of Holdings Act, Samvat 1962 or the Government on the date the commencement of this Act under any of the provisions of the Acts mentioned in Sub Section (1) shall, so far as these are inconsistent with the provisions of this Act, abate. (3) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall be deemed to effect the previous operation of the Acts mentioned in sub-section (1) or anything done or any action or proceeding taken thereunder which thing, action or proceeding has finally concluded under any of said Acts prior to the commencement of this Act.
17. From a perusal of the aforesaid provisions, it is clear that certain Acts including the J&K Land Revenue Act, so far as they are inconsistent with the provisions of J&K Agrarian Reforms Act and the rules framed thereunder would not apply to the land to which J&K Agrarian Reforms Act applies, meaning thereby that only those provisions of J&K Land Revenue Act which are inconsistent with the provisions of J&K Agrarian Reforms Act would have no applicability in respect of the land to which Agrarian Reforms Act applies. There is no provision in the J&K Agrarian Reforms Act which provides for partition of the land. Therefore, the subject of partition, even in respect of the land to which Agrarian Reforms Act would apply, has to be governed by the provisions relating to partition as contained in J&K Land Revenue Act. Thus, the contention raised by the learned Senior counsel appearing for 10 OWP No. 606/2004 the private respondents is without any merit and the observation made by the learned Financial Commissioner in the impugned order in this regard is not sustainable in law.
18. For the foregoing reasons, the impugned order passed by the learned Financial Commissioner, besides being without jurisdiction is not sustainable in law even on merits. The same is accordingly set aside and the writ petition is allowed. Consequently order dated 05.06.1997 passed by the Financial Commissioner is restored.
19. Disposed of.
(SANJAY DHAR) JUDGE Jammu 20.04.2024 Sahil Padha Whether the order is speaking: Yes/No. Whether the order is reportable: Yes/No. Sahil Padha 2024.04.30 07:05 I attest to the accuracy and integrity of this document