JAMMU & KASHMIR HIGH COURT
M.M.Kumar; CJ, Dhiraj Singh Thakur, JJ.
Sheelo Devi & Ors. -Appellant
Versus
State of J&K & Ors. -Resopndent
LPAOW No. 74 of 2010
Decided On : 16-04-2013
Mutation - Dispute over land entries - Jammu and Kashmir Special Tribunal - Rabi 1971 - Mutation nos. 868 of 1981 and 1119 of 1982 - Tehsildar Settlement Jammu - Denovo enquiry - Certiorari jurisdiction
Fact of the Case:
The dispute involved entries made in Rabi 1971 in favor of one Assa Nand for land in Jammu. The Tribunal set aside the entries and ordered denovo enquiry. The subsequent orders up-held the findings that the entries in favor of Assa Nand were unjustified.
Finding of the Court:
The court found that the appeal did not merit admission and dismissed it. It held that the findings based on evidence cannot be interfered with under the certiorari jurisdiction.
Issues: Dispute over land entries, validity of mutations, opportunity of hearing, certiorari jurisdiction
Ratio Decidendi: Findings of fact based on evidence cannot be interfered with under the certiorari jurisdiction. Orders passed by the Tribunal for denovo enquiry and passing order afresh have attained finality.
Final Decision: The appeal was dismissed as it did not merit admission.
1. The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 24.09.2010 rendered by the learned Single Judge of this Court up-holding the order of the Jammu and Kashmir Special Tribunal (for brevity 'the Tribunal') dated 27.08.2002.
2. The dispute between the parties is in respect of the entries made in Rabi 1971 in favour of one Assa Nand in respect of land measuring 01 kanal 14 marlas comprised in Khasra No. 269 situated at village Channi Himmat Jammu. The mutation nos. 868 of 1981 and 1119 of 1982 were challenged before the Joint Financial Commissioner-cum-Agrarian Reforms Commissioner Jammu who ini#31;tially up held the entry made in Rabi 1971 and dismissed the appeal. However, the Tribunal allowed the revision petition filed by the private respondents vide its judgment dated 10.07.1990 and the Girdawari entries of Rabi 1971 were set aside. Consequently both the mutations, namely, mutation nos. 868 of 1981 and 1119 of 1982 were also set aside. The matter was remanded back to the Tehsildar Settlement Jammu for de-novo enquiry by passing order afresh after affording opportunity to all the necessary parties. According to the Tribunal there was a conspiracy hatched to change the Girdawari entries with the active connivance of the revenue staff which was found detrimental to the interest of the private respondents. The Tribunal also recorded the finding that no opportunity of hearing was afforded to the private respondents which vitiated the change of entries and accordingly directions were issued for denovo enquiry and for passing of fresh order.
3. The order of the Tribunal dated 10.07.1990 has attained finality and none of the parties to the lis had challenged the same. The Tehsildar Settlement conducted the spot enquiry and on 25.03.1991 passed an order concluding that the entries made in 1971 were not correct. The Tehsildar further held that all the four sons of Brij Lal were cultivating the land in dispute including Assa Nand. An appeal before the Financial Commissioner also met the same fate and was dismissed on 12.11.1998 holding that Tehsildar Settlement Jammu had carried out proper enquiry as stipu#31;lated by law by ascertaining the factual position existing on ground with specific reference to the recorded position. He has examined the prominent residents of the village and has also taken into account the consistency of the entries which led him to conclude that all the brothers of Assa Nand were in the cultivating possession of the land. There was no justification for changing the revenue entries in favour of Assa Nand to the exclusion of his other three brothers, namely, Karam Chand, Sant Ram and Raghunath. The argument of the appellant-petitioners that other two brothers of Assa Nand died in the year 1964 and 1969 respectively did not find favour because it did not change the position because the legal heirs were deemed to have been substituted. The revision petition filed against the order of Financial Commissioner was also dismissed by the Tribunal vide order dated 27.08.2002 by holding that the Financial Commissioner has given cogent reasons to conclude that entry in favour of Assa Nand alone was wholly unjustified. The basis of the claim made by the appellant-petitioners was found to be defective and faulty. Accord#31;ingly the Tribunal up held the order passed by the Financial Commissioner.
4. Mr. Anil Khajuria, learned counsel for the appellant-petitioners has made an attempt to persuade us to accept the argument that the findings recorded by Tehsildar Settlement Jammu, as up-held by the Financial Commissioner and the Tribunal, are wholly laconic because there is no evidence to support the findings. Another submission made by learned counsel is that the other two brothers of Assa Nand have died in the year 1964 and 1969 and, therefore, no entry showing them in cultivating possession could have been made.
5. Mr. S. C. Gupta, learned counsel for the pri
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