KHUSHIA Vs. KANEEZ FATMA BEGUM

JUDGEMENT

(1.) THESE two appeals arise out of the judgment and decree of the learned Single Judge of this Court Bhat J. dated October 30, 1969. It would be appropriate to mention the facts and the circumstances which have given rise to these appeals.

(2.) KHUSHIA and others brought a suit for declaration against Kaneez Fatima and others with the averment that they are the owners of Land measuring 3814 Kanals and 12 marlas in Chak Sohna Noopa Tehsil Kathua as described in the plaint. They further averred that the will dated 1st. Chet 1999 Bikrimi executed by Mir Sanaullah in favour of certain defendents was a forged and fictitious document and was therefore void and inoperative against the interests of the plaintiffs. They also claimed relief for permanent injunction restraining the defendants from interferring with the possession of the plaintiffs in the land. According to the plaintiffs they were the tenants of the above mentioned land before 2007 Bikrimi and Brigadier Khuda Baksh defendant No. 15 was the sole owner of the land which was more than 4000 Kanals. After the Big Landed Estates Abolition Act of 2007 (Hereinafter to be referred to as the Acts (of 2007) came into force the said defendant could only retain 182 kanal and according to the provisions of the Act of 2007 the remaining land would vest in the tillers thereof who were the plaintiffs. After the land was mutated in favour of the plaintiffâ„¢s defendant No. 15 in order to deprive the plaintiffs of their rights in the land set up a dispute that some of the land mutated in the name of the plaintiffs was Arakh and Kap and was therefore exempt from the operation of the Act. The matter was taken up before the then Revenue Minister who by his order dated 29 -4 -59 remitted the case for further enquiry. While this fact was being investigated defendant No.15 again moved the Revenue Department alleging that the land measuring 2139 kanals 14 marlas was purchased by him in 1992 Bikrimi for a sum of Rs.4100.00. Mutation thereof was attested on 19 -6 -1993; that land measuring 2136 kanals 17 marlas he had purchased from one S. Uttam Singh for Rs.245.00 and its mutation was attested in favour of the defendants on 10 -2 -1994. He further alleged that land measuring 2136 kanals and 17 marlas had been purchased by him by the money advanced by his father -in -law Sana Ullah Khan who had executed a will on 1 -12 -1999 wherein he had stated that the Brigadier had purchased this land for his wife and children and that a portion of the consideration had been paid by the said Sana Ullah and the rest of the consideration consisted of the dower money payable by the defendant No.15 to his wife Mst. Kaneez Fatima. The Deputy Commissioner, Kathua, after some enquiry made a recommendation that the aforesaid land be entered under the provisions of Section 27 (b) of the Land Revenue Act in the name of the other defendants over and above 182 kanals already mutated in the name of and possessed by defendant No. 15. The Financial Commissioner on 26 -6 -1962 accepted this recommendation and ordered accordingly when the plaintiffs come to know of the matter they immediately went up in revision before the Revenue Minister who though declined to interfere with the order of the Financial Commissioner on the ground that he had no jurisdiction in the matter, nevertheless observed that the plaintiffs were neither summoned nor were made parties before the Financial commissioner. Mutations attested by the Revenue authorities under the big Landed Estates Abolition Act of 2007 it is averred, should not have been set aside, but this was wrongly done. On the basis of these avertments the Plaintiffs sought the above mentioned reliefs.

(3.) THE defendants contested the suit firstly on the ground that the Civil Court had no jurisdiction to decide matters arising out of the Big Landed Estates Abolition Act and the Land Revenue Act. The plaintiffs were not the owners of the land nor were they in fact the cultivators of the land in dispute, but majority of the plaintiffs were in forcible possession of the land in Kharif 2007. The original tenants of this land were Muslims who during the disturbances of 1947 had left the State. It was further stated that an area of 1643 kanals was shown in the records as non -cultivable, as Banjar Kadim, Banjar Jadid and Ghair -mumkin and that portion of the land being adakh and thus being exempt from the operation of the Act was wrongly mutated in the name of the plaintiffs. About 1000 kanals had been mutated in favour of the Government. The Special Tehsildar had passed orders on mutations without notice to the defendants which was set aside by the Financial Commissioner on 22 -11 -1958. The Revenue Minister set aside the order of the Financial Commissioner on 24 -4 -1959 but that order of the Revenue Minister was without jurisdiction as no authority vested in him under -section 35 of the Act of the Act of 2007. Therefore, the order of the Financial Commissioner dated 22 -11 -58 remained intact and was final. It was a matter between the State and the defendant 15 and it was not therefore necessary to have impleaded the plaintiffs as parties. Before the Deputy Commissioner and the Financial Commissioner matter relating to the correction of entry on the basis of will was only a family arrangement. The will dated 1st Chet 1990 could not be got implemented because defendant No. 15 was on military duty over seas. Land measuring 2139 kanals in Chak Sona Noopa was purchased by public auction in the name of defendant No.15. On correction it was entered in the proprietorship of defendants No. 1 to 15 in equal shares. Part of the consideration was contributed by the defendant No. 1 from her dower. With S. Uttam Singh a private sale was negotiated for Rs. 2450.00 in respect of the remaining land. This was with the money provided by Sana Ullah the father -in -law of defendant No. 15. Mutation No. 42 which was the first in point of time had been attested in the absence of defendant No. 15 and without notice to him. Later on this mutation No. 42 was cancelled by the Financial Commissioner on the ground of its being illegal. The Financial Commissioner accepted the recommendations of the Revenue Commissioner and directed correction of records in favour of the wife and children of the defendant No. 15. A revision application Was presented before the Revenue Minister who rejected it on 15 -7 -1963 On further reference Financial Commissioner later on observed that mutations in favour of the plaintiffs stood automatically cancelled. These matters could not in view of Section 32 of the Act be made subject matter of a civil suit.