Judgment

Sanjay Dhar, J.—The petitioners have challenged the order dated 26.12.2020, passed by District Magistrate, Shopian, respondent No.2 herein, whereby an order of eviction in terms of Section 5 of the Jammu & Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as the ‘Act of 1997’), has been passed against the petitioners. A further direction restraining respondent No.2 to 4 from acting upon aforesaid impugned order and from interfering in petitioners’ possession over the land measuring 04 kanals falling under Survey No.516/168 situated at Bongam, Shopian, has also been sought.

2. The case of the petitioners is that their predecessors-in-interest were cultivating land measuring 12 kanals and 05 marlas falling under survey No.169 and land measuring 04 kanals falling under Survey No.516/168 situated at Bongam, Shopian, as tenants from the times immemorial including in Kharif, 1971. The predecessors-in-interest of respondent No.7 to 9 are stated to be the owner/landlord of the aforesaid land. It is averred that so far as the land measuring 12 kanals and 05 marlas falling under Khasra No.169 is concerned, mutation under Section 4 and thereafter under Section 8 of the Jammu & Kashmir Agrarian Reforms Act came to be attested in favour of predecessor-in-interest of the petitioners. However, regarding land measuring 04 kanals falling under Survey No.516/168, mutation in terms of the provision of Agrarian Reforms Act in favour of predecessor-in-interest of the petitioners or in favour of the petitioners was never attested though they were in cultivating possession as tenants in Kharif, 1971. It is further contended that when respondent No.7 started making claims over the said land, the petitioners made an application before Financial Commissioner (Revenue), who vide order dated 19.02.2020 directed respondent No.3 to examine the matter and submit the report. Accordingly, the respondent No.3 conducted an enquiry and submitted his report in which it was clearly stated that 04 kanals of land, as afore-stated, had been under the possession of petitioners and their ancestors prior to 1971 and that they were paying land revenue and rent to the owners.

3. It is contended that the respondent No.7 in the year 2009 filed an application under the provisions of the Act of 1997 and in the said proceedings, a report was filed by the Patwari concerned confirming that the land measuring 04 kanals under Khasra No.516/168 despite being in cultivation of the petitioners in the year 1971, has not been mutated in terms of Agrarian Reforms Act. It is alleged that upon receipt of the said report, the respondent No.7 was directed by the District Magistrate, Shopian, to seek appropriate remedy as the Act of 1997 is not applicable to his case.

4. Petitioners have further contended that they entered into an oral settlement with respondent No.7 and agreed to pay an amount of Rs.15.00/- lacs as cost of 04 kanals of land out of which an amount of Rs.9.00/- lacs was paid by the petitioners to respondent No.7 on different dates. However, respondent No.7 instead of executing requisite documents filed another application under the Act of 1997 before the respondent No.2 in the year 2017.

5. It seems that exparte proceedings were initiated against the petitioners herein, which later on came to be revoked and according to the petitioners despite production of material on record evidencing the fact that they are not unauthorized occupants but were/are holding the land in question i.e. land measuring 04 kanals, as tenants prior to 1971, the respondent No.2 passed the impugned order of eviction. The petitioners have further submitted that while the proceedings before the respondent No.2 were pending, mutation in respect of land measuring 04 kanals under Khasra No.516/168 was attested in favour respondent Nos.7 to 9 compelling the petitioners to file an appeal before Agrarian Reforms Commissione