Back
2017 Supreme(J&K) 883
BEFORE J&K SPECIAL TRIBUNAL JAMMU
KOSSAR AHMAD QURESHI, J. (MEMBER)
Ismail Gojjar - Appellant
Versus
Durya Mohammad and Ors. - Respondents
File No. STS/3480/2012
Decided On : 26-07-2017
Proper attestation and consideration of rights in mutation orders under the Agrarian Reforms Act, and the implications of time-barred appeals and nullity of mutations attested in absence of concerned parties.
Headnote:
Tenancy Rights - Agrarian Reforms Act - Section 4, Section 8
Fact of the Case:
The petitioner and his brothers were tenants of the land owner before 1971. Dispute arose regarding the possession and tenancy rights of the land after the death of the petitioner's brothers and mother. The respondents challenged the mutation orders under section 4 and section 8 of the Agrarian Reforms Act, leading to a series of legal arguments and appeals.
Finding of the Court:
The court found that the mutation orders were attested without proper consideration of the rights and relationships of the parties involved. The court also noted discrepancies in the pedigree table presented by the petitioner and concluded that the petitioner failed to establish his case, leading to the dismissal of the revision petition.
Issues: Dispute over tenancy rights, validity of mutation orders, misrepresentation of pedigree table, condonation of delay in filing appeal
Ratio Decidendi: The court emphasized that one co-sharer cannot claim tenancy rights over joint land to the exclusion of other co-sharers under the Agrarian Reforms Act. It also highlighted the importance of proper attestation and consideration of rights in mutation orders. The court relied on previous judgments to support its findings on time-barred appeals and nullity of mutations attested in absence of the concerned parties.
Final Decision: The revision petition was dismissed, and the lower court's decision was upheld.
KOSSAR AHMAD QURESHI, J. (MEMBER)
1. That the revisionist and his brothers were the tenants of the land owner, namely, Yaqoob before the Kharief 1971. The brothers of the revisionist passed away unmarried and as such the land under khasra No. 413 comprising of 1 kanal and 16 marlas, and Khasra No. 415 comprising of 5 kanals and 12 marlas was under the exclusive possession of the revisionist and was enjoying the land without any interruption. Further submitted that the father of the revisionist had already passed away and the mother of the revisionist went for second marriage and she married to Biladar Milu and lived at Khan Chat which is situated at 26 kilometers from the residence of first husband. It is further submitted that the mother of the revisionist was not recorded as tenant before and after khareef 71 and by no means have any tenancy rights whatsoever. After the second marriage the Lal Jumma gave birth to two sons and expired more than two decades ago. Latief the son of Lal Jumma already expired and other son Duraman have no blood relationship with the revisionist having different fathers. Further submitted that the mutation in question are being challenged by the respondents without having any jurisdiction and is a calculated measure to take undue benefit of the old age of the revisionist and to alter the document which have attained finality before decades. Further submitted that the respondents have filed an appeal before the Hon'ble Court of Joint Agrarian Commissioner on 19.02.2007 challenging the mutation No. 413 and 415 under section 8 dated 20.5.1998. Thereafter a period of one and a half year the mutation bearing No. 1153 dated 17.11.1983 has been challenged in the year 2008 after a gap of 29 years. The petitioner is aggrieved of the order dated 16.05.2012 and challenged the same on the following grounds:-
i. That the Lal Jumma is not a tenant and as such is not entitled to any tenancy rights and the said fact has not been considered by the Hon'ble Court while deciding the appeal and as such the order impugned has been passed without total non-application of mind and as such deserves to be set aside;
ii. That the land under question as divided among the respondents by Lal Jumma for which she had executed a Will deed is wrong as firstly Lal Jumma had no tenancy right over the said land and if it is assumed for the sake of arguments that she had any rights but the same could not be transferred by way of a will deed and under such a situation the appeal under the agrarian reforms Act would not lie. These aspect have been ignored by the Hon'ble court and as such the order impugned is bad in law and deserves to be set aside;
iii. That it was the revisionist only who was having the right of tenancy over the said land and the mutations was only a step forward in recognition of the acknowledge rights and no fraud has been committed in this context. Mutations are simply a reflection of the rights as recorded prior to Kharief 1971 and thereafter. As such the order impugned has effect of changing the facts and is therefore bad in law and deserves to be set aside;
iv. That the Hon'ble court has erred in allowing the appeal without any reasonable cause being projected as is reflected in the order impugned as well. The appellants have first challenged the mutation No. 1401 dated 20.05.1998 u/s. 8 after a period of ten years that too without a cogent ground and then after a passage of one and a half year have challenged the mutation order No. 1153 dated 17.11.1983 under section 4 of the Act after a period of 30 years. The Hon'ble court has entertained the second part of the appeal in flagrant violation of the rules and procedures in vogue. The court has adopted a novel procedure by first entertaining the appeal under section 8 and then appeal Under Section 4 of the Agrarian Reforms Act and that too after a gap of one and a half years and both were to be tendered without sufficient cause for the delay occasioned. The Hon'
