HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU v. Ab. Rahim” & Ors.

Ms. Monika Kohli, Sr. AAG for R- 1 and 5 Mr. Rajdeep Singh Thakur, Advocate for R-2 Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE JUDGMENT

1. The petitioners have filed the present petition for quashing the order dated

26.04.2018 passed by the respondent No. 1 in case titled “Kanshi Ram vs. Ab. Rahim and others”, whereby the mutation No. 523 attested by the Tehsildar, Ramban on 03.01.2002 under Section 121 of the Land Revenue Act in favour of the predecessor-in-interest of the petitioners, namely Sh. Ab. Rahim has been cancelled and the case has been remanded to the Settlement Commissioner, Jammu with direction to hold fresh enquiry in the matter.

2. The case projected by the petitioners is that the predecessor-in-interest of the petitioners had purchased the land measuring 19 Kanal 10 Marlas comprising old survey No. 301 and land measuring 2 Kanals comprising Survey No. 626 from the respondent No. 4 in the year 1972 for an amount of Rs. 5,700/-, who in turn had entered into the possession of the above- mentioned land after paying the price of the above mentioned land to Chattu, Kalu and Gullu, who had obtained a loan from Cooperative Society, which they could not liquidate. The possession of predecessor-in-interest of the petitioners was recorded in Khasra Girdawari for Rabi 1975. It is stated by the petitioners that during the settlement operation, their predecessor-in interest was found in adverse possession of the above-mentioned land and accordingly the Tehsildar, Ramban in the capacity of Assistant Collector First Class, Ramban attested the mutation No. 523 dated 03.01.2002 in respect of the land 3 OWP No. 1047/2018 mentioned above under Section 121 of the Land Revenue Act, in favour of the predecessor-in-interest of the petitioners. During the settlement operation, survey No. 301 min was converted to new survey No. 340 (17 Kanal 10 Marlas), 341 (3 Marlas) and survey No. 626 min was converted to new survey No. 342 (1 Kanal 6 Marlas) and 343 (2 Kanals 2 Marlas). It is further stated that the father of the respondent No. 2 had never been in cultivating possession of the above-mentioned land and he had lost his title in respect of the above-mentioned land but despite that he challenged the mutation on 09.08.2005 before the respondent No. 1 in a revision petition and the respondent No. 1 wrongly allowed the revision petition and passed the order impugned.

3. The petitioners have assailed the order impugned on the following grounds: i. That once the mutation had been attested by the Tehsildar (Assistant Collector First Class), then the mutation could have been challenged in an appeal before the Collector only and once the mutation was not challenged, it had attained finality, therefore, the revision petition was not maintainable. ii. That in the record of rights of the year 2006, the predecessor-in- interest of the petitioners had been reflected as owner of the land and the said record was not challenged, therefore, the order impugned is not sustainable in the eyes of law. iii. That the land was being cultivated by Baggu as protected tenant, which subsequently came in possession of Chattu, Kalu and Gullu as tenants, however, in order to liquidate the loan amount, 4 OWP No. 1047/2018 they transferred the said land to the respondent No. 4, who in turn transferred the same to the predecessor in interest of the petitioners in the year 1972 for consideration of Rs. 5,700/-, as such, the possession was hostile and adverse against the true owners including the father of the respondent No. 2, but this aspect of the case has not been considered by the respondent No. 1. iv. That the finding recorded by the respondent No. 1 that Section 13 of the Agrarian Reforms Act was attracted is also factually and legally incorrect as Section 13 of the Agrarian Reforms Act was not applicable in the facts and circumstances of the case. v. That the finding of the respondent No. 1 that the mutation was attested at the back of the respondent No. 2 is also factually incorrect, as the same was attested at the Camp Headquarter, Gandhri in presence of all the persons and he had full knowledge of the said proceedings which were conducted by the Tehsildar, Ramban and the predecessor in interest of the petitioners and the petitioners were in possession of the said land and had even constructed a residential house over the said land for the last 38 years.

4. The respondent No. 2 has filed response, stating therein that the petitioners have no locus to file the present petition being trespassers under the Agrarian Reform Act, 1976 and therefore the petitioners cannot claim the ownership rights on basis of unauthorised occupation. It is further stated that mutation No. 523 was attested under Section 121 of the Land 5 OWP No. 1047/2018 Revenue Act in absence of the predecessor-in-interest of the respondent No. 2 and it is settled law that mutation attested, in absence of necessary parties, is non-est and nullity in the eyes of law, therefore, the Joint Financial Commissioner is justified in setting aside mutation No. 523 of 2002 and remanding the case back for fresh enquiry by the Settlement Commissioner, Jammu. It is stated that operation of Section 121 of the Land Revenue Act is limited and permissible only to such disputes which arise in determination of the boundaries of the fields encroached upon by the adjacent landowners inadvertently or otherwise, which in the revenue parlance called Banna Shikni. It is further stated that Section 121 of the Land Revenue Act is limited only to the cases of boundary disputes of land adjacent to each other between different owners and in such cases only, the Collector is competent to decide the case summarily with regard to question of title of adjacent landowners. Section 121 of the Act nowhere permits underhand sale and purchase of the land to avoid stamp duty and registration fee as envisaged under Section 138 of the Transfer of Property Act. It is also averred that the land mentioned above was owned by the predecessor-in-interest of the respondent No. 2 but under the tenancy of Baghu S/O Rohlu Khak Rob as a protected tenant. Baghu left the cultivation after 1971 and surrendered the possession to Kanshi Ram i.e. predecessor-in-interest of respondent No. 2 and made clear statement with regard to surrender of possession after 1971 before Tehsildar on

23.07.1977 and accordingly Kanshi Ram retrieved the land from occupancy tenant and accordingly mutation No. 320 of 1977 was attested in favour of Kanshi Ram i.e. predecessor in interest of the respondent No. 6 OWP No. 1047/2018

2. Kanshi Ram started cultivating his land personally and also through hired labourers. The predecessor-in-interest of the respondent No. 2 also constructed a house over the said property and used to give that house on rent and somewhere around 1981-82, the predecessor-in-interest of the petitioners took one room of the said house on monthly rent basis through oral agreement and being an idle labourer, the predecessor-in-interest of the petitioners approached the predecessor-in-interest of the respondent No. 2 that he was jobless and he be engaged as a labourer to cultivate the land. The predecessor-in-interest of the respondent No. 2 being generous engaged the predecessor-in-interest of the petitioners as labourer and used to get the land cultivated through him by paying wages in cash. Thereafter, predecessor-in-interest of the petitioners manipulated his entry as „tenant at will‟ in connivance with then Patwari in the revenue records. The predecessor-in-interest of the respondent No. 2 had no knowledge about this mischief and after coming to know about the attestation of mutation bearing No. 523 of 2002 under Section 121 of the Land Revenue Act, he assailed the same before the Financial Commissioner, who transferred the same to Joint Financial Commissioner. It is also stated that the land mentioned above was in exclusive possession of Santu S/o Rohaula and the same was transferred to Kanshi Ram through mutation No. 246 of 1959 of Village Gandhari and the same was under personal cultivation of Sh. Baggu S/o Rohlu as protected tenant before 1971. It is the stand of the respondent No. 2 that the respondent No. 4 had no concern in respect of the land in question as he neither inherited the property nor was owner of the land, therefore, question of sale of land by the 7 OWP No. 1047/2018 respondent No. 4 does not arise. Construction of house by the predecessor in interest of the petitioners has been denied by the respondent No. 2. It is further stated that in the year 2002, Section 121 of the Land Revenue Act was amended and the power to attest the mutation under Section 121 was vested with the Collector and the power of Tehsildar was divested, therefore, the Tehsildar was not competent to attest the mutation. It is further stated that the contention of the petitioners that the mutation attested under Section 121 of the Land Revenue Act can be challenged only in an appeal is erroneous as the revisional jurisdiction of the Financial Commissioner is independent power vested in the Financial Commissioner, who either on his own motion or an application made in this behalf can call for the record of any case pending or disposed of by any revenue officer under his control.

5. Mr. O. P. Thakur, learned senior counsel appearing on behalf of the petitioners has argued that the revision itself was not maintainable as the mutation could have been assailed by way of appeal only and once the predecessor-in-interest of the respondent No. 2 did not choose to file an appeal, he could not have filed the revision petition. He has further argued that the predecessor-in-interest of the petitioners had become owner of the land in question by way of adverse possession. He has placed reliance upon judgment of Division Bench of this Court in case titled Abdul Hamid and others vs. Divisional Commissioner, Jammu and others in LPA No. 193/2019 decided on 10.02.2020.

6. Per contra, Mr. Rajdeep Singh Thakur, learned counsel for the respondent No. 2 has argued that the revision is maintainable before the Financial

8. 8 OWP No. 1047/2018 Commissioner, who can even exercise suo-moto revisional powers in the pending or even cases disposed of by the revenue officers subordinate to him. He has further argued that title cannot be conferred under Section 121 of the Land Revenue Act upon a person who claims to be in possession of the land on the ground that he had purchased the land after paying the sale consideration. Heard learned counsel for the parties and perused the record. The petitioners have objected to the maintainability of the revision petition before the Financial Commissioner on the ground that mutation in terms of Section 121 of the Land Revenue Act can be assailed by way of an appeal only and once the appeal was not preferred by the predecessor-in- interest of the respondent No. 2, the revision itself was not competent. In terms of Section 15(1) of the Land Revenue Act, the Financial Commissioner may at any time call for the record of any case pending before or disposed of by any revenue officer under his control. It is true that the remedy of appeal has also been provided under Section 121 of the Land Revenue Act, but equally true is that the power of revision vested in the Financial Commissioner is not ousted merely because the remedy of appeal has been provided under the Act. This is extra ordinary power vested in the Financial Commissioner but of course in terms of proviso to sub-section 4 of section 15 of the Land Revenue Act, an opportunity of hearing has to be provided to the private persons whose rights would be affected by exercise of such power.

9. The judgment of Division Bench of this Court passed in case titled Abdul Hamid and others vs. Divisional Commissioner, Jammu and others in 9 OWP No. 1047/2018 LPA No. 193/2019 decided on 10.02.2020, relied upon by the learned senior counsel for the petitioners, does not lay down any law that once the remedy of appeal has been provided under the Land Revenue Act, the power of the revision vested in the Financial Commissioner would be ousted or cannot be exercised.

10. In “Bihar State Cooperative Marketing Union Ltd. vs. Uma Shankar Sharan and another” reported in (1992) 4 SCC 1996, Hon‟ble the Supreme Court of India, in para 6 has held as under: “6. Validity of plural remedies, if available under the law, cannot be doubted. Even if the two remedies are inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly. A matter which may attract Section 40 will continue to be governed by Section 48 also. It the necessary conditions are fulfilled. In the present case no steps under Section 40 were ever taken by the appellant. The provisions of Section 48 are available to the appellant for the recovery of the loss.”

11. In view of the above, merely remedy of appeal provided under Section 121 of the Land Revenue Act does not mean that the power of revision vested in the Financial Commissioner is ousted. A Coordinate Bench of this Court has also taken a similar view in case titled „Updesh Kour and others Vs. State of J&K and others’ in OWP No. 462/2008 decided on

22.05.2024. Therefore, there is no force in this contention raised by the learned senior counsel for the petitioners. Accordingly, this contention is rejected.

12. A perusal of the record reveals that the land measuring 19 Kanal 10 Marlas comprising survey No. 301 was proprietary land of Balia and others in occupation of Kanshi Ram Hissedar and Baghu was the protected tenant whereas land measuring 2 Kanal comprising survey No. 626 min 10 OWP No. 1047/2018 was proprietary land of Bal Krishan and others under their personal cultivation. Vide mutation No. 523under Section 121 of the Land Revenue Act, the land was mutated in favour of the predecessor-in-interest of the petitioners on 03.10.2002. The petitioners claim that their predecessor-in- interest had purchased the land from the respondent No. 4, who in turn had paid the price of land to Chattu, Kalu and Gullu. The petitioners in fact claim to be the owners of the land on the ground that their predecessor-in- interest had purchased the same. In Khasra Girdawari for the year 1975, the predecessor-in-interest of the respondent No. 2 has been shown as the owner and also in possession through Chattu, Kalu and Gullu (tenants at will). Further, in Rabi 1975, the possession of the predecessor-in-interest on the basis of agreement between him and the respondent No.4, has been reflected. In terms of Section 13 of the Act, no fresh tenancy can be created after May 1973. More so, mutation under Section 121 of the Land Revenue Act cannot be used as a mode to subvert the provisions contained in Transfer of Property Act as the immovable property can be sold by the owner only by way of registered sale deed in terms of section 54 of the Transfer of Property Act and the petitioners cannot claim to be owners of the property just because they paid Rs. 5,700/- to the respondent No. 4, who in turn had obtained the possession of the land mentioned above from Chattu, Kalu and Gullu and whose possession, if any, as a tenant was illegal under Agrarian Reforms Act. The petitioners cannot claim to be the owners on the basis of the agreement entered in to between their predecessor-in-interest and the respondent No.4 as he himself was not the owner of the land and simultaneously, the petitioners cannot claim to be in 11 OWP No. 1047/2018 adverse possession of the land mentioned above, as both the pleas are contradictory and cannot co-exist together.

13. The respondent No. 1 has returned a finding that the ownership right could not have been conferred upon the petitioners under Section 121 of the Land Revenue Act, as it merely vests power in the Authority concerned to decide the question of title of land, which cannot be faulted with. If such mutation is allowed to remain on record, it would be in utter disregard of the provisions of Transfer of Property Act, Registration Act and the Stamps Act. Besides, such types of transactions also result in loss to the state exchequer.

14. The respondent No. 1 has also returned a finding that no opportunity of hearing was afforded to the predecessor-in-interest of the respondent No. 2 and once the affected party is not heard, then the mutation cannot be allowed to sustain. Also, there is no force in the contention of the petitioners that the record of rights ought to have been challenged, as the said entry has been made only pursuant to the mutation impugned.

15. The petitioners have not been able to demonstrate any perversity in the order impugned or any jurisdictional error in the order impugned, which may warrant interference by this court. This Court while exercising power of judicial review under Article 226 of the Constitution of India, cannot convert itself to an appellate or revisional forum, while examining the validity of the order impugned. The Hon‟ble Supreme Court of India in “Central Council for Research in Ayurvedic Sciences v. Bikartan Das”, 2023 SCC OnLine SC 996 has examined the scope of Writ of Certiorari and has observed as under: 12 OWP No. 1047/2018 “51. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.

52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not. the final order in exercise of (emphasis added)

16. In view of what has been considered, discussed and analysed hereinabove, this Court is of the considered view that the instant petition is misconceived and the same is, accordingly, dismissed. (RAJNESH OSWAL) JUDGE Whether the order is speaking: Whether the order is reportable: Yes Yes Jammu 27.11.2024 Sahil Padha Sahil Padha 2024.11.27 16:31 I attest to the accuracy and integrity of this document