The finality of mutations under the Agrarian Reforms Act, the requirement to challenge the attestation of mutations, and the invalidity of creating tenancy after May 1973 as per section 13 of the Act.

JUDGMENT

Rajnesh Oswal, J. - The mutation bearing No. 780 was attested on 27.02.1984 under section 8 of the Agrarian Reforms Act (for short the Act) thereby conferring ownership rights in favour of Jeeta S/o Phula- predecessor in interest of the respondents for the land comprising survey No. 385 measuring 2 kanal 9 marlas situated at Village Jagti Morha Karli and prior to the issuance of mutation, the land was escheated in favour of the State and the predecessor in interest of the respondents was declared as prospective owner by virtue of mutation attested under section 4 of the Act.

2. The contention of the petitioners is that there was no relationship of landlord and tenant between Jeeta i.e. predecessor in interest of the respondents and the owners, namely, Durga Dass and Krishna Devi, who were recorded as owners in the revenue record of girdawari of the year, 1969. The said Jeeta had in fact purchased 3 kanal 9 marlas of land comprising survey No. 385 from Beli Ram by virtue of sale deed and he was never inducted as tenant by any of the owners namely, Durga Dass and Krishna Devi over 2 kanals 9 marlas of land comprising survey No. 385. It is stated that the fictitious entry in kharif 1971 and that too without order of competent authority was made in favour of the predecessor-in-interest of the respondents. It was highly doubtful and further the same could not have formed the basis of attestation of mutation under section 4 of the Act, on the basis of which subsequent mutation under section 8 of the Act was attested in favour of the predecessor-in-interest of the respondents.

3. The petitioners claim that the predecessor-in-interest of the petitioners filed an appeal against the mutations under section 4 and 8 of the Act and both these appeals were decided by the appellate authority i.e. Joint Commissioner, Agrarian Reforms Jammu vide order dated 22.05.2004. Against the dismissal of the appeals, revision petition was filed before the J&K Special Tribunal Jammu and the said revision petition too was dismissed vide order dated 23.07.2014.

4. The petitioners have impugned the order dated 23.07.2014 passed by the learned J&K Special Tribunal, Jammu inter alia on the ground that without proper enquiry regarding the status of the persons who were in cultivating possession of the land in question, the mutation under section 4 of the Act was attested and further the predecessor-in-interest of the appellants was in fact the tenant in Kharif 1971, as admitted by erstwhile owners namely Durga Dass and Krishna Devi.

5. Response has been filed by the respondents in which they have raised preliminary objection with regard to the maintainability of the writ petition and further that the finding of facts recorded by the authorities under the Act cannot be challenged through the medium of the writ petition. It is also stated that the predecessor in interest of the petitioners had filed an appeal against the mutation attested under section 4 of the Act which was dismissed for non-prosecution on 24.10.2002 and the same was never restored, thus, mutation under section 4 has attained finality and once the mutation under section 4 of the Act has attained finality, mutation under section 8 of the Act cannot be challenged. It is also stated that the mutation No. 723 under section 4 of the Act was attested on 08.01.1984 and the predecessor in interest of the respondents was declared as prospective owner on the basis of his cultivating possession over 2 kanals 9 marlas of land comprising survey No. 385 in kharif 1971. After the deposit of the levy, the mutation No. 780 was attested by the Tehsildar, Agrarian Reforms Act on 29.02.1984. It is also stated that the father of the petitioners filed an appeal against the order of mutation attested under section 4 of the Act but enclosed copy of mutation No. 721. The respondent filed mutation No. 723 which was mutation attested under section 4 of the Act and this mutation pertains to the entire village Jagti. Th