(JUDGMENT)

1. The petitioner seeks quashing of the orders dated 16.11.2022 and 09.10.2021 passed by respondent Nos. 2 and 3 respectively, whereby the findings of the Deputy Commissioner (Collector), Kathua, in file No.166/DCK/AM dated 10.08.2018 in an appeal against the order dated 08.01.2011 passed by the Tehsildar Kathua, on Mutation No.137 in respect of land falling in survey No.61/26 situate at Padri Pain, Parole Tehsil and District Kathua, were upheld.

BRIEF FACTS

2. The petitioner, Prem Singh, claims continuous possession of land measuring 27 Kanals 14 Marlas comprised in survey No.61/26 Min situate at village Padari Pain, Tehsil Nagri Parole, District Kathua, prior to and after 1971, over which a brick kiln (Patha) was constructed.

3. The recorded owners were Krishan Singh, Mst. Banti Devi, Smt. Nirmala Devi and Vaishno Devi. The petitioner filed a civil suit No.117/Civil dated 02.01.1998 before the learned Sub Judge, Kathua (Civil Court), seeking a declaration of ownership by adverse possession. The suit was decreed on 26.12.2007. the Civil Court held the land being shown as Ghair Mumkin Patha escaped the definition of “land” under the Agrarian Reforms Act, 1976 (the Act of 1976) and, therefore, the suit was maintainable before the Civil Court. The defendants therein filed an appeal before the Court of learned Additional District Judge, Kathua, but same was withdrawn on 10.02.2010.

4. On the strength of the decree passed by the Civil Court, Mutation No.137 was attested by the Tehsildar Kathua on 08.01.2011, reflecting the petitioner as owner of the land in question.

5. The private respondent No.4-Mst.Ram Kali had filed an appeal before the Deputy Commissioner (Collector), Kathua, against Mutation No.137, with a limited prayer to the extent of 2 Kanals 5 Marlas of land. The appeal was instituted on 02.02.2013 and by order dated 10.08.2018, the Deputy Commissioner (Collector), Kathua, set aside the entire Mutation No.137 on the ground that the Civil Court decree was without jurisdiction under the Act of 1976. The petitioner preferred an appeal before the Divisional Commissioner (Revenue), Jammu, and thereafter a revision was filed before the Financial Commissioner (Revenue), J&K and by orders dated 09.10.2021 and 16.11.2022, the findings of the Deputy Commissioner (Collector), Kathua, were upheld and Mutation No.137 was set aside by holding that, as per Jamabandi of 1970-1971, the land was entered as “Warhal Awal” in the ownership of Ram Singh, Krishan Lal and others and the State, and was in self cultivation; from Kharif 1971 onwards the kind of soil was changed to Ghair Mumkin Patha and possession was shown with the petitioner. A portion comprising of 9 Kanals 5 Marlas was found to be State land. It was held that:

(i) the land recorded as “Warhal Awal” in Kharif 1971 fell within the definition of “land” under Section 2(9) of the Act of 1976;

(ii) conversion to commercial use i.e., brick kiln, from Kharif 1975 was without prior permission under the then Section 13(1);

(iii) disputes of adverse possession were triable by the Collector under Section 19 and Civil Court are barred by Section 25;

(iv) the Tehsildar was required to enquire into the prima facie validity of the decree before attestation of the Mutation;

(v), inclusion of State land in the decree was beyond comprehension;

(vi), reliance under the Roshni Act was rejected in view of judgment in Prof.S.K Bhalla vs. State of J&K; and

(vii) the compromise appear to be underhand sale and was not accepted.

SUBMISSIONS

6. Learned counsel for the petitioner submits that once the suit land has been shown as Ghair Mumkin Patha, it escapes the scope of the definition of “land” under the Act of 1976, therefore, the authorities under the Agrarian Reforms Act has no jurisdiction to upset the Mutation based on the decree passed by a Civil Court. It is contended that the decree passed by the Civil Court cannot be upset by the revenu