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2011 Supreme(J&K) 421
JAMMU & KASHMIR HIGH COURT
Mansoor Ahmad Mir, J.
Jabbar Lone -Appellant
Versus
J&K Special Tribunal & Anr. -Resopndent
OWP No. 553/2003
Decided On : 02-09-2011
Mr. G. A. Lone, Advocate for Petitioner.
Mr. A. Chesti, AAG for respondents 1-2.
Mr. M. Y. Bhat, Adv. for respondent No. 3.
The court emphasized the strict application of the Agrarian Reforms Act, which extinguished rights in land not cultivated personally in 1971, without exceptions for joint possession or co-ownership.
Headnote:
Agrarian Reforms Act - Land Dispute - Section 4, Section 2(12), Section 6
Fact of the Case:
The petitioner challenged an order regarding the ownership of a land. The petitioner claimed exclusive possession of the land, while the respondent asserted possession since 1971 based on a Tehsildar's order. The petitioner sought to quash the order and restore possession.
Finding of the Court:
The court found that the respondent's possession since 1971 was supported by the Tehsildar's order, and the petitioner's failure to challenge this order weakened their claim. The court also emphasized the provisions of the Agrarian Reforms Act regarding extinguishment of rights in land not cultivated personally in 1971.
Issues: The main issues were the conflicting claims of possession and the applicability of the Agrarian Reforms Act to the dispute.
Ratio Decidendi: The court held that the respondent's possession since 1971, as determined by the Tehsildar, was valid. Additionally, the court emphasized that the Agrarian Reforms Act extinguished rights in land not cultivated personally in 1971, without exceptions for joint possession or co-ownership.
Final Decision: The writ petition was dismissed due to the respondent's established possession and the petitioner's failure to challenge the Tehsildar's order. The court also noted the delay in seeking remedy and the petitioner's failure to question the findings of the Tehsildar.
2. It is averred that writ petitioner became owner of the land measuring 6 Kanals 12 Marias falling under survey no. 799 bearing Khewat No. 90 situate at Estate Darakis, Tehsil Tangmarg (Gulmarg) by virtue of a registered sale deed dated 02.06.1972 which was executed by Mst. Khatji and Mst. Saida, daughters of Ahad Lone and, thus, petitioner is in possession of the same. The said land was part of joint holding owned by Khatji, Saida and Fata daughters of Ahad Lone and Mukhti daughter of Mohd. Lone. It is averred that the petitioner had also filed a civil suit and obtained a decree, but during the pendency of said suit, respondent No. 3-Mst. Mukhti had made an application before the Tehsildar Tangmarg (Gulmarg) and became subject matter of various litigations before the revenue agency. Ultimately mutations came to be passed in favour of respondent No. 3, was questioned by writ petitioner by the medium of appeals before the Joint Agrarian Reforms Commissioner, Srinagar, who accepted the appeals and set aside the impugned mutations vide order dated 09.10.1995. Feeling aggrieved respondent No. 3 herein questioned the same before the J&K Special Tribunal, Srinagar, came to be allowed vide order dated 26.05.1997 and the order passed by Joint Agrarian Reforms Commissioner was set aside and Mutation Nos. 219 and 253 attested by Tehsildar Agrarian Reforms, Tangmarg were upheld. It is this order which is subject matter of present writ petition.
3. Petitioner has specifically averred that he is in exclusive possession of the land in question. It is not his case that he is not in possession exclusively. He has prayed for quashing of the impugned order and to command respondents not to interfere with his possession; with a further direction to respondent No. 2 to restore back the possession of entire land falling under Survey No. 799.
4. It appears that Mukhti-respon-dent No. 3, who is daughter of Mohd. Lone, had moved an application before Tehsildar Agrarian Reforms, Tangmarg who directed Naib Tehsildar Tangmarg to conduct inquiry. Accordingly, Nabi Tehsildar made a report to Tehsildar to the effect that Mukhti was enjoying possession of the land in question continuously even before 1971 and on the basis of inquiry held by Naib Tehsildar, Tehsildar Agrarian Reforms, Tangmarg ordered correction of girdawari entries in respect of the disputed land in favour of Mukhti-respondent No. 3 as tenant with effect from Kharif 1971. The said order was passed on 15.10.1981 in file No. 69. It also appears that the proceedings and inquiry conducted by Naib Tehsildar and order passed by Tehsildar Tangmarg have never been questioned by the writ petitioner and mutation Nos. 219 and 253 came to be attested on the basis of said order of Tehsildar. Writ petitioner questioned both the mutations by the medium of appeal before the Joint Agrarian Reforms Commissioner, Srinagar, but did not question the basic order-order of correction of girdawari passed by Tehsildar Agrarian Reforms Tangmarg. Joint Agrarian Reforms Commissioner-appellate authority while setting aside the mutations has overlooked the said fact.
5. Respondents No. 3 has filed reply. Official respondents have not filed the reply. Even petitioner has not filed rejoinder.
6. The stand of respondent No. 3 was that she was in possession of the land in question prior to 1971 and has also taken the same stand before the Tribunal as well as in this writ petition. It is not the case of writ petitioner of respondent No. 3 that the entire property is joint and they are cultivating the land jointly. The petitioner has also pleaded that he is in exclusive possession of the land measuring 6 Kanals 12 Marias and has prayed that the respondents be directed not to ca
