The possession of one co-sharer is deemed to be the possession of all co-sharers, and mutations attested in favor of co-sharers must be legally valid.

1. By means of this petition, the petitioners seek the quashment of the order dated 06/067 2003 passed by the Director, Land Records (with powers of Commissioner Agrarian Reforms) Jammu, whereby it is held that petitioners and respondents 5 to 9 as co-shares of the land in dispute, cannot derive the benefit of tenancy, which was further affirmed by the Jammu and Kashmir Special Tribunal, Jammu vide its order dated 31/07/2003, by issuance of an appropriate writ by exercise of writ jurisdiction under Article 226 of the Constitution of India read with section 103 of the Constitution of Jammu and Kashmir State.

2. The case of the parties enumerated from record in brief is that Makhan and Malarah were real brothers, petitioners and private respondents are their descendents. Suraj Parkash, one of the co-shares, was serving in Railways and generally remained outside the State. He was co-sharer alongwith other co-sharers of the land situated at villages Kheri, Badawa Palli and Nandwal. After the death of Suraj Parkash, his legal heirs were brought on record.

3. The petitioners, however, claim to have been tenants under one Ami Chand over the land in dispute in Kharif 1971, in respect of which, mutation was also attested in their favour by Tehsildar Bushman.

4. The stand of the respondents in controvert the claim of the petitioners is that Suraj Parkash, son of Mahan, husband of Mst. Kavita Devi and father of other private respondents, was one of the co-sharers of the property along with the petitioners and thus the possession of one of the co-sharers is deemed to be possession of other co-sharers. It is further stated that the claim of Suraj Parkash cannot be ignored by the other co-sharers, being in possession of the land in dispute in Kari 1971, because Suraj Parkash being one of the co-sharers of the property would be deemed to be in possession of the land in dispute.

5. As per Shajara Nasab, the parties are the co-sharers of the land in dispute. Since Suraj Parkash was in service and died during his service in Indian Railways, it was not possible for him to cultivate the land personally. The land was in cultivating possession of the other co-sharers and Suraj Parkash being admittedly one of the co-sharers would be deemed to be in cultivating possession of the said land along with other co-sharers. The co-sharers are the trustees, therefore, cannot derive the benefit of either adverse possession or tenancy. Under section 2(12) of the Agrarian Reforms Act, land in possession of one of the co-sharers shall be deemed to be personal cultivation of all other co-sharers. It is also borne out from the record that Director Land Records visited the spot and recorded the evidence produced by the parties and on the basis of evidence, reached at the conclusion that the parties are the co-sharers as per Pedigree Table. The record further reveals that Ami Chand and Durga were the sons of Makhan and after their death, mutation was attested in favour of Suraj Parkash as their legal heir.

6. Once the parties to the litigation are recorded to be co-sharers of the land in dispute, the possession of one co-sharer shall be deemed to be possession on behalf of all co-sharers. In such circumstances, co-sharers who are in cultivating possession to the exclusion of Suraj Parkash cannot take the benefit of being in cultivating possession of land in Kharif 1971.

7. The contention raised by Mr. C.M. Gupta, petitioners Advocate, that section 2(12) of the Agrarian Reforms Act, is applicable only where the land is unculturable or gairmumkin and the aim and object of the Agrarian Reforms Act is to give land to the tiller, therefore, mutation has rightly been attested in their favour by the Tehsildar and cannot be accepted being devoid of any legal force.

8. Suraj Parkash, one of the co-sharers, being serving in Railways and posted outside the State, it was not possible for him to cultivate the land. The mutation under section 4 & 8 of the Agrarian Reforms Act got attest

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