The court emphasized that findings based on incorrect co-sharer status and unjustified delay in appeals led to a miscarriage of justice, allowing the appeal and setting aside previous orders.

JUDGMENT :

1. This Appeal under Clause 12 of Letters Patent of this Court is directed against the judgment dated 23rd February 2023, passed by learned Single Judge of this Court ("Writ Court”) in WP(C) No. 1700/2022 titled as Aziz Para & Ors. v. UT of J&K & Ors., whereby the writ petition filed by appellants herein ("writ petitioners” hereinafter), challenging the order dated 23rd July, 2022 passed by Commissioner, Agrarian Reforms (Additional Deputy Commissioner) Budgam, has been dismissed.

2. Briefly stated, the facts leading to filing of this appeal are that land measuring 01 Kanal 01 Marla falling under Survey No. 671 and 1193/640 situate at Village Gudsathoo Tehsil and District Budgam ("subject land") was claimed to be in cultivating possession of writ petitioners in Kharif 1971. Since it was respondent no. 4, owner of the subject land, who was shown in the personal cultivation of the subject land, as such, the writ petitioners approached the concerned revenue officer for correction of Girdawari entry pertaining to Kharif 1971, so that they are enable to reap the benefits of J&K AGRARIAN REFORMS ACT ("Act of 1976”). On the request of writ petitioners and in presence of respondent no. 4, the mutating officer vide his Order No. 866, dated 4th December 1981, attested Sehti Kasht Mutation in favour of writ petitioners. Consequent upon correction of Khasra Girdwari pertaining to Kharif 1971, Mutation No. 877, dated 28th December, 1981 and Mutation No. 892, dated 20th February, 1982 under section 4&8 respectively of the Act of 1976 came to be attested in favour of writ petitioners.

3. Feeling aggrieved, respondent no. 4, namely, Ali Parra, challenged all the three mutations attested under the Act of 1976 before the Commissioner Agrarian Reforms (Additional Deputy Commissioner) Budgam ("Commissioner” for brevity), by way of three appeals instituted on 1st July, 2006. The appeals were allowed by the Commissioner vide order dated 25th June, 2011. The writ petitioners challenged the order of the Commissioner before the J&K Special Tribunal, Srinagar. The order of the Commissioner dated 25th June, 2011 was set-aside by the Tribunal vide order dated 11th July, 2014 and the matter was remanded to the Commissioner for passing a speaking order strictly under Order XLI Rule 3A of the J&K CIVIL PROCEDURE CODE .

4. On remand, the Commissioner took up the application filed by respondent no. 4 seeking condonation of delay under section 5 of the Limitation Act and allowed the same vide its order dated 1st June, 2016. The appeals were admitted for regular hearing. The appeals were heard on merit and vide order dated 23rd July 2022, the Commissioner allowed the appeals and set-aside all the three mutations attested by Tehsildar, Budgam, and the matter was remanded back to Tehsildar concerned for fresh inquiry and passing fresh orders after providing an opportunity of being heard to the parties. It is this order of the Commissioner dated 23rd July 2022, which was assailed by the writ petitioners in WP(C) No. 1700/2022. The impugned order in the writ petition was assailed by the writ petitioners on the ground that the Commissioner could not have set-aside the mutations, more particularly when Mutation No. 866, dated 4th December, 1981 in respect of correction of Girdawari of Kharif 1971 had been attested in presence of respondent no. 4. The order of the Commissioner was also assailed on the ground that the Commissioner could not have condoned the huge delay of 25 years that too when respondent no. 4 - appellant before the Commissioner, was a party to the mutation attested on 4th December, 1981. They submit that subsequent mutations attested under Section 4 &