1. Two writ petitions are of the year 2006.
2. According to the petitioner- Jagdish Raj in OWP No. 760/2006, he is son of Ram Sarn alias Sarna and petitioner No. 1- Mohan Lal in OWP
No. 845/2006 is also son of Ram Sarn alias Sarana. Ram Sarn alias Sarana is a displaced person who migrated to India in the year 1947. It is
claimed that petitioners are cultivating land under various Khasra numbers including Khasra No. 161, measuring 6 kanal 15 marlas situated at
Chinore Tehsil and District Jammu.
3. It is pleaded by learned counsel for the petitioner that large extent of land has been identified as Evacuee land. From this, an extent has been
allotted to Ram Sarn alias Sarana by Cabinet Decision No. 578-C of 1954. The total extent of land allotted to him was 39 kanal 12 marlas falling
in Khasra Nos. 161, 126, 184, 185, 186, 187, 188, 189, 190, 191 and 198 min situated at village Chinore Tehsil and District Jammu. (Annexure-
B, page 31 to OWP No. 760/2006). In the year 1976, Agrarian Reforms Act came into existence. Under Section 3 A of the Act, occupancy
rights were conferred upon Ram Sarn alias Sarana. Under Mutation No. 279, the occupancy rights of Ram Saran alias Sarna were recorded and
confirmed. The date of such Mutation was 18.08.1984.
4. Private respondent Nos. 5 and 7 in OWP No. 760/2006 and private respondents Nos. 1 to 3 in OWP No. 845/2006 are the contesting
respondents. They claimed that land measuring 6 kanal 15 marlas comprised in Khasra No. 161 situated at Chinore, Tehsil and District Jammu,
belonged to their father Jamat Ali, who purchased the same by way of a Sale Deed dated 12.12.1961. The contesting respondents are the
successors-in-interest to the property. The mutation of inheritance No. 357 stands attested in their favour on 06.01.1986.
5. It is the specific case of the contesting respondents that Ram Sarn alias Sarana got the mutation in terms of Section 3A of the Agrarian Reforms
Act in his favour in respect of Khasra No. 161 by undue influence and due to the indulgence shown by the Naib Tehsildar who recorded Mutation
No. 279 on 18.08.1984 without notice to the contesting respondents. It is alleged that fraud was played by the petitioners.
6. Aggrieved by Mutation No. 279 under Section 3A of the Agrarian Reforms Act dated 18.08.1984 and the right they lost due to such mutation,
respondent Nos. 5 and 7 in OWP No. 760/2006 filed a suit in the Court of 1st Additonal Munsiff (Forest) Judicial Magistrate 1st Class, Jammu
which was dismissed on 10.12.2003 (Annexure-F, page 47 to OWP No. 760/2006). Thereafter the private respondents challenged Mutation No.
279 dated 18.08.1984 by way of revision petition before the Jammu and Kashmir Special Tribunal, Jammu, respondent No. 1, which came to be
dismissed vide order dated 24.08.2004 (Annexure-G to OWP No. 760/2006). In that order, it was indicated that an appeal ought to have been
filed against the mutation order. Therefore, an appeal was filed before the Joint Commissioner Agrarian Reforms, Jammu -respondent No. 2,
challenging mutation No. 279 dated 18.08.1984, which according to the petitioner was after a period of 20 years from the date of mutation. There
was no application filed for condonation of delay and hence it is pleaded that respondents are setting up a false claim.
7. Accepting the objections filed by the petitioners who are respondents in the appeal before the 2nd respondent that there was delay and latches
and that there was no application for condonation of delay. The appeal was dismissed vide order dated 17.12.2004 (Annexure-J to OWP No.
760/2006).
8. It is pleaded by the respondents'' counsel that though the appeal was dismissed on delay, latches and limitation, certain observations were made
on the merits of the case and that affects their rights.
9. Aggrieved by the order of 2nd respondent-Joint Agrarian Reforms Commissioner, private respondents preferred a revision petition before the
Special Tribunal, Jammu-respondent No. 1, who by his order dated 14th September, 2006 allowed the revision petition and set aside the
Mutation No. 279 made under Section 3 A of the Agrarian Reforms Act dated 18.08.1984 stating that it was without jurisdiction and contrary to
the recorded position. The Special Tribunal further held that no proper inquiry was conducted as there were many missing links/variations between
the three sets of documents, i.e., form A, register for recording cancellation and mutation order. The first respondent, therefore, remanded the
matter to the Financial Commissioner (Revenue), Jammu so as to enable him to send it to the concerned Revenue Officer for correction. The
further direction is that the Officer has to conduct a denovo inquiry into the matter, examine the records and pass appropriate orders. Aggrieved by
this, writ petitions have been filed.
10. Mr. V.R.Wazir, learned senior counsel along with Mr. R.N.Sarma, Advocate appearing for the petitioner, pleads that the factual aspect of the
case relating to Cabinet Decision No. 578-C of 1954 in favour of petitioner''s father Ram Sarn alias Sarana has not been properly considered by
the first respondent-Special Tribunal. It has not taken into consideration that Mutation No. 279 was done on 18.08.1984 based on valid
documents and that was not challenged for a long period of time. Therefore, the order of the Tribunal is bad. Besides, it is pleaded that if there is
contradiction in the documents produced by the either side, as observed and that there are number of links missing between the three sets of
documents, form-A, register cancellation and mutation order, for which denovo inquiry has to be conducted, he pleaded that the competent
authority to decide this issue will be the Custodian Evacuee Property because according to the petitioner, the property is Evacuee property. This
plea is disputed by respondents.
11. Per contra, Mr. Mohd Arif, learned counsel for the contesting respondents, would emphasize that the property, more particularly, Khasra No.
161 situated in Chinore, Tehsil and District Jammu is not an Evacuee property. Cabinet Decision No. 578-C of 1954 has no application to the
said authority. It is a manipulation. Furthermore, Mutation No. 279 under Section 3A of Agrarian Reforms Act dated 18.08.1984 is based on mis-
representation, fraud and manipulation. They state that they will prove that the property does not fall within the purview of the Custodian Evacuee
Property and in that event they would have a right to plead that they are the owners of the property by mutation of inheritance. The rival issues are
issues on facts that require adjudication by appropriate authority.
12. The order of the Tribunal reads as follows:-
As would be clear from the above, there is continuous variation in Khasra numbers in form, register cancellation and mutation order. It leads to
the belief that there have been changes through-out this period in respect of holding of land under the possession of Sarna. The fact which needs to
be noted is that Kh. No. 161 is not only a number which is at variance in the register cancellation and form A. The mutating officer should have
attested the mutation on the basis of revenue records and records of the custodian office and the mutation is valid in respect of those lands which
are evacuee lands. The order of mutation under section 3A of Agrarian Reforms Act has been passed in absence of record and the owner of the
property and on the basis of records where Kh. No. 161 is absent. The certificate of the Custodian to the effect that the land is not evacuee
property has been ignored. Coming to the claim of the petitioners herein right from the year 1961 when Mst. Roshan obtained inheritance of the
property belonging to the family whose members were killed during the riots of 1947, a prolonged litigation has been going on in the case. The sale
deeds executed by Mst. Roshan were challenged in various forums and finally after detailed verification as ordered by the Financial Commissioner,
Revenue, these were upheld. The revision petition filed before this Tribunal was dismissed again citing the land being proprietary land, being
reason. The appellate court completely by-passing the observations recorded by the Tribunal in disposing of the petition, held the land to be
evacuee property land inspite of entire evidence available on record being to the contrary. The order of the appellate court, therefore, is bad in law
and cannot be sustained. Coming to the observation of the Tribunal that the order of the Naib Tehsildar cannot be revised for want of jurisdiction.
The attention needs to be drawn to standing Govt. order No. 23-A wherein powers & procedure for attestation of mutation have been prescribed.
In all cases where mutation is regarding grant of occupancy rights, the Naib Tehsildars are debarred from attesting the mutation unless specifically
empowered by the Financial Commissioner, Revenue. Again in the case where there is a dispute, the attestation is to be done by the officer not
below the rank of Magistrate Ist Class. Para 85 of the Order 23 A again supports this finding as the case regarding Khasra No. 161 is not straight
forward case; but a number of links of chain are missing between form A, register cancellation and revenue entries as these stood prior to 1971
when Sarna is recorded as non-occupancy tenant. Conferring right of occupancy tenant in these circumstances was well beyond the jurisdiction of
Naib Tehsildar.
It would, therefore, be proper to set aside the mutation under section 3A of Agrarian Reforms Act as having been attested without jurisdiction and
quite contrary to the recorded position and without conducting inquiry as to missing links/variation between three sets of documents i.e. form A,
register cancellation & mutation order and also ignoring the fact that the petitioners herein were recorded owners in possession of Khasra No.
161. The file be sent to the Financial Commissioner, Revenue who would send it to the concerned revenue authority empowered to attest the
mutation. The mutating officer will ensure that a denovo inquiry is conducted in the matter, records examined and finding based upon these records.
The counsel for the respondent No. 13 stated that he has purchased a part of the land and has received a part of the land as gift for the
construction of Ashram. He claims to be in the actual physical possession of the land. Since the very mutation which is the basis of accrual of rights
subsequently transferred by way of sale/gift to the Ashram has been set aside, the parties would be putting up their claims at the time of attestation
of fresh mutation.
13. A reading of the above makes it clear that the Tribunal has held that rival claims require further consideration by a competent authority because
there are variations in Khasra numbers, form-A, register cancellation and the mutation order. It has stated so in relation to Khasra No.161.
14. Doubts have been raised as to how the property could be brought within the purview of Mutation No. 279 dated 18.08.1984. But the case of
the petitioners is that it falls under Cabinet Decision No. 578-C of 1954. This has not been taken into consideration and if that issue is established
by the petitioners, then it will be a case of property falling within the purview of Custodian evacuee property.
15. As rightly pointed by the either side, it is the Custodian Evacuee Property, Jammu, who has to verify whether the property falls under Cabinet
Decision No. 578-C of 1954, i.e., Khasra No. 161 situated in village Chinore Tehsil and District Jammu.
16. Respondents No. 5 to 7 in OWP No. 760/2006 and respondent Nos. 1 to 3 in OWP No. 845/2006 will be entitled to object to the claim that
Khasra No. 161 of village Chinore Tehsil and District Jammu does not fall within the purview of Cabinet Decision No. 578- C of 1954 before the
Custodian Evacuee Property. The factual dispute has to be first resolved at the appropriate level and both parties will have to be given a chance to
prove their stand on merits.
17. While giving liberty to either side to contest the matter before the Custodian Evacuee Property, Jammu and based on the ruling to be given by
the said authority, it is open to either parties to work out their remedy in accordance with law, if aggrieved.
18. The order of the Tribunal stands modified to that extent. On remand, the Custodian Evacuee Property, Jammu will hear the parties for fresh
disposal of the rival claims. Thereafter, the contesting parties will be at liberty to take recourse to law, if aggrieved. The Custodian Evacuee
Property, Jammu to decide the matter expeditiously.
19. Registry is directed to dispatch the records forthwith.
20. Writ petitions are disposed as above along with connected MP(s).
