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2016 Supreme(J&K) 108
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R. Sudhakar, J.
Dayawanti and Ors. - Appellants
Vs.
Financial Commissioner J&K and Ors. - Respondents
OWP No. 1327 of 1999 and MP No. 1437 of 1999
Decided On : 18-05-2016
For the Appellants : D.R. Khajuria
For the Respondents: G.S. Thakur
The main legal point established in the judgment is the reliance on revenue records, physical possession, and the interpretation of rules and regulations in determining land ownership disputes.
Headnote:
Land Dispute - Jammu and Kashmir Agrarian Reforms Act - Rabi 1976 - Khasra No. 597 - Rule 7, Rule 13
Fact of the Case:
The case involves a dispute over the ownership of land, specifically Khasra No. 597, which started in 1990. The dispute revolves around the correction of the entry in Khasra Girdawari Rabi, 1976, and the joint possession of the land by the parties involved.
Finding of the Court:
The court found that the land did not fall under the purview of the Jammu and Kashmir Agrarian Reforms Act and that the entry in favor of one party was in violation of rules and regulations. The court also considered the physical possession and revenue records to determine the entitlement of the respective parties.
Issues: The primary issues included the correction of the entry in Khasra Girdawari Rabi, 1976, the joint possession of the land, and the jurisdiction of the Assistant Commissioner. The violation of natural justice and the ownership of Shamlat land were also raised.
Ratio Decidendi: The court's decision was based on the interpretation of the Jammu and Kashmir Agrarian Reforms Act, the revenue records, and the physical possession of the land. The court also considered the violation of rules and regulations in making the entry in the revenue records.
Final Decision: The court dismissed the writ petition and upheld the decision of the Financial Commissioner, confirming the entitlement of the parties based on the revenue records and physical possession.
R. Sudhakar, J.
1. The writ petition is of the year 1999. This long battle between the parties is in respect of ownership of land and it started way back on 26.07.1990.
2. One Dhananter Singh and others filed an application with the Collector - Assistant Commissioner (General) Jammu seeking correction of the entry in Khasra Girdawari Rabi, 1976 till to date in respect of Khasra No. 597 measuring 11 kanals and 3 marlas situated in village Toph Sherkhanian. The case was filed before District Collector of Agrarian Reforms, Jammu on 26.07.1990 and was transferred to the Collector - Assistant Commissioner for disposing it of on merits. Amrik Singh the present writ petition was respondent in that application. It appears that notice was issued to Amrik Singh but he refused the service and, as such, ex-parte proceedings were initiated against the present petitioner - non applicant before the Collector - Assistant Commissioner.
3. Dhanantar Singh and others- the applicants' statement were recorded on 12.09.1990 to support their case for correction of the entry in Khasra Girdawari Rabi, 1976. They also let in independent evidence through one Ranjit singh. Before the Authority, they deposed that Khasra No. 597 measuring 11 kanals and 3 marlas situated in village Toph Sherkhanian is a land which is partly "Arak" (grazing or fuel land), Banjar Qadeem (uncultivated land) and that there is also Gair Mumkin Rasta (Passage) in the said land. It was pleaded that the applicants before the authority as well as Amrik Singh - petitioner in the instant writ petition are in joint possession of the land without any interruption. It is their case that Amrik Singh - the present writ petitioner in connivance with the Patwari got recorded in the Khasra Girdawari that Khasra No. 597 in his name and the applicants therein - respondents herein were not informed about the same. It is also the specific plea of the applicant before the authority - respondents herein that the land in Khasra No. 597 is under dispute and same has not been properly and lawfully partitioned among the co-sharers so far and, therefore, it is jointly held by them.
4. It is alleged that Amrik Singh has got the entry recorded in Girdawari in his own name to deprive the applicants of their rightful share of the land. The specific plea is that the entry in Girdawari Rabi 1976 till that date should be corrected in five equal shares in the name of the applicants therein and non-applicant Amrik Singh in the revenue records.
5. The Assistant Commissioner after considering the arguments and the documents produced came to hold that the land does not come within the purview of Jammu and Kashmir Agrarian Reforms Act because it has been recorded as "Arak" (grazing/fuel land), Banjar Qadeem (un-cultivable land) and it is recorded as in joint possession of Hissadars without interruption. He held that the crucial entry of Kharif 1971 records that the possession is jointly in the name of Dhananter Singh and others in respect of Khasra No. 597. Having noticed the records as above, he came to hold that the record of the entry in Rabi 1976 by the revenue authorities in favour of Amrik Singh is in violation of Rules and Regulations on the subject. He accepted the private respondents' application for correction of Girdawari and he ordered that the entry in favour of all the parties, as it existed in Kharif 1975 from Rabi 1976 to date in respect of Khasra No. 597 measuring 11 Kanals 3 Marlas of village Toph Sherkhanian.
6. Amrik Singh aggrieved by this, filed a review before the Settlement Commissioner and the grounds of revision petition reads as follows:
"1. That the order impugned under revision is against facts of law and all cannons of natural justice and that the order has been passed at the back of the petitioner.
2. That in the impugned order it is mentioned that notices were sent to the petitioner but he refused to acknowledge the service. This is incorrect and false because no notice ever reached to
