BUDHI SINGH Vs. STATE OF J&K AND ORS.

JUDGEMENT

(1.) This is a Letters Patent Appeal against judgment dated 24.04.2000 in OWP No. 955/1995, whereby learned Writ Court has dismissed the writ petition filed by the appellant against order dated 22.11.1995 passed by the Jammu and Kashmir Special Tribunal in a revision petition rejecting appellant's revision against order dated 22.07.1993 passed by the Joint Financial Commissioner with powers of Commissioner Agrarian Reforms (hereinafter referred to as the Commissioner).

(2.) Heard. We have pursued the record.

(3.) Undisputed facts leading to this appeal, shorn of unessential, are that four persons, namely, Laxman Singh, Sunit Singh, Hukum Singh and Roop Singh were real brothers and co-owners of land measuring 65 kanals ,13 marlas comprised in Khasra No. 146 (39K.,10M.) and Khasra No. 163 (26K.,10M.) situate in village, Sidhara Tehsil, Samba. Appellant, Budhi Singh is the son of co-owner, Roop Singh and private respondents, Vakil Singh and Satya Devi, are the successors-in-interest of another co-owner, Sunit Singh. Aforementioned land was recorded in cultivating possession of the co-owners including Budhi Singh (appellant) and Smt. Bandral, who was the wife of Sunit Singh, in kharif 1971. 3(a) Appellant seems to have applied to the Tehsildar, Agrarian Reforms for rectification of girdawari entry contending that Smt. Bandral had given her share measuring 16 kanals comprised in khasra No. 146 (10 K.) and 163 (6 K.) to him for cultivation prior to 1970. The Tehsildar, Agrarian Reforms seems to have allowed rectification and attested mutation No. 357 declaring the appellant as prospective owner of said 16 kanals of land in terms of section 4 of the Jammu and Kashmir Agrarian Reforms Act, 1976 (for short the Act) and mutation No. 364 vesting ownership right in the said land in the appellant in terms of section 8 of the Act. The private respondents questioned the orders passed in these two mutations in an appeal before the Commissioner. The Commissioner allowed the appeal and remanded the case to the Tehsildar, Agrarian Reforms, Samba for inquiry in terms of Rule, 4 of the Jammu and Kashmir Agrarian Reforms Rules, 1977. Pursuant to the order of remand, the Tehsildar Agrarian Reforms passed order dated 02.06.1991. The Tehsildar found that two kanals of the said land has been recorded in possession of the PWD. He found further that four kanals of the land comprised in khasra No. 146 was in possession of Smt. Bandral and ordered that the same be recorded in her possession from kharief 1971 to Rabi 1982 and after that in possession of the private respondents, Vakil Singh and Satya Devi. The Tehsildar ordered further that land measuring 10 kanals has not been found in possession of Smt. Bandral in kharief 1971 and was in possession of the appellant herein and ordered attestation of mutation to that extent in terms of sections 4 and 8 of the Act in his favour. This aspect of the matter has been found in copy of order dated 02.06.1991, which is available on the record, and is also stated in the order dated 22.07.1993 (supra) passed by the Commissioner in appeal as also.in the revision petition against this order filed by the appellant before the Special Tribunal. 3(b) The private respondents questioned order of the Tehsildar dated 02.06.1991 as well in appeal before the Commissioner. This appeal was filed on 25.07.1991. The appellant (therein respondent) remained ex-parte. The Commissioner after hearing counsel for the therein appellants and inspecting the spot, allowed the appeal and directed the land to be recorded in possession of the owners vide his order dated 22.07.1993. The Commissioner arrived at a conclusion that the entire land was in cultivating possession of the co-owners in kharief 1971 and after that and the appellant (therein respondent) being a co-owner was not entitled to any benefit under the Act. 3(c) The appellant, Budhi Singh, assailed the order passed by the Commissioner in a revision petition before the Special Tribunal. The Special Tribunal dismissed the same by its order dated 22.11.1995 by observing as under: