PARMANAND Vs. STATE

JUDGEMENT

(1.) THE dispute between the petitioners and respondents 4 and 5 herein on one hand and Mangat Ram, respondent No. 3 herein on the other, is only in regard to a small parcel of land allegedly encroached upon by one of the parties and this dispute was under litigation before so many forums. Nishandehi which the parties desire has been effected by Patwari, Girdawar, Naib -Tehsildar, Tehsildar and ultimately by Assistant Commissioner but respondent No. 3 still remained not satisfied. Thereafter Chairman J&K Special Tribunal on 24 -7 -1989 on review petition filed by respondent No. 3 herein has appointed Shri Rajinder Singh Parihar, Additional Deputy Commissioner Jammu as commissioner to conduct nishandehi on spot in presence of the parties after affording them sufficient opportunity of being heard. Said order has been challenged in this writ petition, being passed illegally and without jurisdiction.

(2.) BOTH the abovesaid parties have been conferred proprietory rights in regard to certain land situate in village Langath, Tehsil Samba, being tillers under the provisions of Big Landed Estates Abolition Act. Respondet No. 3, Mangat Ram, alleged forcible encroachment upon a portion of land by the other side and applied for nishandehi. Nishandehi was effected by various revenue officials and Tehsildar passed order directing that the encroachment, if any, found be removed and possession of the land be restored to the other party. Other party preferred appeal before Deputy Commissioner Collector, Jammu who accepted the appeal and ordered for making nishandehi in presence of the parties. In pursuance of that order Tehsildar got nishandehi made through one Girdawari who pointed out such encroachment to the extent of 7 -marla. Petitioners party was satisfied with this report but respondent No. 3 objected to it. Thereafter Tehsildar sent to girdawar who found 8 marla of land to have been encroached upon. Petitioners did not accept this report and Tehsildar himself went on spot and came to the conclusion that 6 -Marla of land had been encroached upon by respondent No.3 and 2 -MarIa by petitioner -party. Against this order respondent No.3 filed a revision petition before Divisional Commissioner Jammu who rejected the same. Respondent No.3 being not satisfied with the order of Divisional Commissioner filed revision before Financial Commissioner who transferred the case to Shri A.N. Saraf holding powers of Financial Commissioner (Appeals) and he appointed Sh. Gurdev Singh Isher Asstt. Commissioner as Commissioner for conducting nishandehi who found encroachment of 2 -marla of land and submitted report on 18 -5 -1992. The Financial Commissioner Appeals finding no objections from the parties ordered for making entries in the revenue record and to act accordingly. This order of the Financial Commissioner Appeals was further assailed in revision petition before the then Revenue Minister, who on the enforcement of J&K. Special Tribunal Act, l976 transferred the case to that Special Tribunal. The Tribunal rejected the revision petition holding that no question of law or public interest involved in the case requiring determination by the Tribunal, and upheld the order of Financial Commissioner Appeals. Respondent No. 3 was not satisfied and he filed a review petition before the said Tribunal and in review the Tribunal has appointed Shri Rajinder Singh Parihar, Addl. Deputy Commissioner Jammu to conduct fresh nishandehi.

(3.) THE order of the Special Tribunal has been challenged in this petition mainly on the grounds that the Tribunal had no jurisdiction to entertain the review as no revision could lie to the Tribunal against the order of Financial Commissioner and further that no grounds as mentioned in Order 47 C. P. C. existed for invoking powers of review particularly when the Tribunal had already held about the non -existence of any point of law or public policy involved in the case. Reply has been filed by respondent No. 3 only resisting the petition and denying the allegations of the petitioners.