Section 28 of the Agrarian Reforms Act governs the rights and liabilities of prospective owners, stipulating that only male heirs can claim occupancy tenancy rights until the conferment of ownership rights.

Headnote:
Agrarian Reforms Act - Mutation - Section 8 - Section 28
Fact of the Case:

The petitioner contested the attestation of a mutation under Section 8 of the Agrarian Reforms Act, claiming rights as an heir. The appellate court upheld the mutation, citing Section 28 of the Act, which governs the rights and liabilities of prospective owners.
Finding of the Court:

The court found that the mutation was properly attested in favor of the male heirs as per Section 28 of the Agrarian Reforms Act. It dismissed the petitioner's appeal, stating that only male members could claim occupancy tenancy rights under the Act.
Issues: The main issue was whether the mutation under Section 8 was properly attested and whether the petitioner, as a female heir, had a claim to the land.
Ratio Decidendi: The court relied on Section 28 of the Agrarian Reforms Act, which stipulates that only male heirs can claim occupancy tenancy rights until the conferment of ownership rights. The court also emphasized that the daughters of the deceased prospective owner could not be declared as occupancy tenants under the Act.
Final Decision: The revision petition was dismissed, and the order of the appellate court upholding the mutation was upheld.

1. The order of Commissioner Agrarian Reforms Udhampur dated 22.10.2005 refusing to set aside the order passed on mutation No:435 dated 28.6.1993 under Section 8 of the Agrarian Reforms Act in favour of respondents No: 1 and 2, has been assailed in this revision petition and sought to be set aside by the petitioner on the grounds mentioned in the memo of revision.

2. The facts giving rise to filing of the present revision petition are as under:-

Faquiroo and his son Bhagu were the individual tenants of the land mentioned in the appeal situated in village Kakaryal Tehsil Udhampur.

Accordingly mutation Nos:340 and 341 were attested by the concerned Revenue Officer declaring them prospective owners of the land. Subsequently Faquiroo died and thereafter his son Bhagu expired in the year 1988.

Faquiroo had only one son named above who had married two women. From the 1st wife respondents were born and from 2nd the petitioner. After the death of Faquiroo and Bhagu Tehsildar (Settlement) Udhampur attested mutation under Section 8 of the Agrarian Reforms Act on 28.6.1993 and conferred the rights of ownerships upon respondent Nos: 1 and 2.

3. Aggrieved by the said mutation petitioner preferred an appeal before the Additional Deputy Commissioner, (with powers of Commissioner Agrarian Reforms), Udhampur on 18.10.2001 pleading therein as heir of Faquiroo and Bhagu, she alongwith respondents was entitled to be declared owners of the land. She sought condonation of delay in filing the appeal on the ground that impugned mutation was attested in her absence and for away from the land in question.

4. The appellate court turned down the appeal by holding that under Section 28 of the Agrarian Reforms Act before attestation of mutation under Section 8 the Rule of succession applicable were that of occupancy tenant according to which only sons are entitled to succeed and not the daughter of a tenant and as such mutation has been rightly attested in favour of respondent Nos: 1 and 2 being the sons of deceased tenant Bhagu.

5. The judgment of the appellate court has been assailed on the ground that the petitioner alongwith respondents were entitled as heirs of their father and grand father to become the owner of the land.

6. That impugned mutation was attested in violation of Standing Order 23-A without summoning the petitioner and as such the same is null and void.

7. That Shajra-Nisab has not been prepared correctly because it makes reference only to two legal heirs of Bhagu whereas he had 4 legal heirs which point out that Tehsildar(Settlement) had attested the impugned mutation without conducting inquiry on spot which is a sine quo non for attesting mutation.

8. It is further claimed by the petitioner that otherwise she was entitled to be made the owner of the land.

9. In the present case, petitioner and her counsel stopped appearing continuously from 18.2.2008 and as such the Ld. counsel for the contesting respondents was heard.

10. The Ld. counsel for the contesting respondents submitted that impugned mutation has been passed in accordance with Section 28 of the Agrarian Reforms Act and the appeal has been properly dismissed because petitioner alongwith her step sisters cannot claim right of succession before their father Bhagu would have been made absolute owner.

11. In this background, he further submitted that no purpose will be solved by remanding the case for hearing the petitioner because the position laid down in Section 28 cannot be changed by adopting such course.

12. After giving my thoughtful consideration to the arguments advanced by the Ld. counsel for the contesting respondents and examining the record I proceed to decide the petition as here-in-under.

13. So far attestation of mutation under Section 4 of the Agrarian Reforms Act ( here-in-after the Act) in favour of father and grand father of the parties during their life time is concerned, is not disputed.

14. In the light of the ground adopted in the revision petition as well as before the app

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