1. This petition has been directed against an order passed by Revenue Minister on 24-8-1982. This has decided two cross revisions filed by the parties before him against an order of the Agrarian Reforms Commissioner in terms of Jammu and Kashmir Agrarian Reforms Act of 1976, "(hereinafter called the Act)", under the order impugned, the Revenue Minister has remanded the case to the Collector Agrarian Reforms Sopore for fresh orders in terms of the following directions:-

"1. The area under personal cultivation of the non-applicant (Mohammad Anwar Dar) be identified and specified on spot, showing the "land" and "orchard" separately.

"2. The land under the personal cultivation of the non-applicant Mohammad Anwar Dar so identified be ordered on mutation to be recorded in the girdawari "Khud Kasht Subhan Dar through Mohd. Anwar Dar, his son".

"3. In respect of orchard as identified and found in the occupation of the non-applicant, the concerned party is at liberty to move the Revenue Officer, under the land Revenue Act 1996, for necessary correction under rules,"

BRIEF FACTS:

2. The petitioner "Subhan Dar was the father and respondent No.3 his son, Subhan Dar inherited some land falling within the ambit of the Act. He was duly recorded to be in cultivating possession of this land in Kharief 1971. Mohd Anwar, the son (Respondent No.3), approached Additional Tehsildar, Sopore, (circle Officer) and got mutation No.49 of village Riban Rehema, attested, where-under Mohammad Anwar Dar was ordered to be entered in the possession column of 12 kanals and 12 marlas comprising of different survey Nos. w.e. from Kharief 1971. This order was challenged in appeal before Agrarian Reforms Commissioner. The Agrarian Reforms Commissioner accepted the appeal and held that the Circle Officer was not at all justified in passing the order against the law and was absolutely wrong in holding that Anwar Dar had a separate family unit. According to him, the Addl. Tehsildar also committed a gross error of law in placing reliance upon the will which was said to have been executed by Subhan Dar as Subhan Dar at the time of mutation was very much alive and the will could not be acted upon.

3. Subhan Dar, however, during the pendency of this petition died and his representatives have stepped into his shoes after duly being substituted. The petitioners herein are aggrieved of the order on the following grounds:-

i) That the order impugned is full of contradictions,

ii) That the direction of the Revenue Minister under the impugned order to specify and identify orchard land is perverse as the same was never pleaded. Direction for identification of land held by the respondent under cultivation is also inconsistent.

iii) That the permission for correction of Revenue record in respect of orchard land granted under the impugned order is also against the spirit of law.

4. I have heard the learned counsel for the parties at length and examined the whole case.

I venture to preface my findings with an observation that the learned Revenue Minister has throughout been labouring under indefiniteness and uncertainty. That is why the order impugned seems to be fraught with ambiguities and inconsistencies. He has tried to mix the concept of personal cultivation with jointness of a family.

5. The definition of the word €˜family€™ under Section 2(6) of the Act may be germane for purposes of resumption of land, under Section 7. Therefore, the exclusion of a major son holding land separately on or before 1-9-1971, from the family of his father has a relevance for that purpose. Even for that purpose, the word "separated" used in Clause-b of Section 2(6) has to be noticed, "separated" does not mean living separately. On the other hand word separated connotes that the partition between the father and the son must have taken place in any of the modes of transfer recognised by law. Proof of formal partition may be irrelevant where the son father due is not pitched in a controversy. But the term

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