RAJA Vs. SPECIAL TRIBUNAL, J&K

JUDGEMENT

(1.) THE land, being the subject -matter of this appeal, belonged to one Gaffar Najar. He died leaving a son, Wahab, and one daughter, Mst. Azmi. After death of Gaffar Najar, his landed properties were mutated in the names of Wahab and Mst. Azmi in equal shares. Wahab died leaving his widow, Azizi, as his sole heir. On death of Wahab, the land, being the subject -matter of appeal, was mutated in the name of his widow, Mst. Azizi. On October 22, 1945, Mst. Azizi entered into an agreement whereby and under she agreed to mortgage the land in favour of ancestors of the appellants and proforma respondents, and handed over possession thereof to them. On July 1, 1948, Mst. Azizi executed and registered a mortgage deed in favour of the ancestors of the appellants and proforma respondents. The mortgage deed did not specify the date or the period by which the mortgage could be redeemed. Mst. Azizi died in the year 1964, whereupon reversioners, being the children of Mst. Azmi, namely, the respondent no.4, the daughter, and Hassan, the son of Mst. Azmi, got the land, being the subject -matter of appeal, mutated in their name. Respondents 5, 6 and 7 are the heirs of Hassan.

(2.) IN a suit instituted on May 11, 1970, the respondents claimed recovery of possession of the land in question from the appellants. In the suit, they contended that Mst. Azizi had limited interest in the land in question and, accordingly, had no right to mortgage the same. It was also contended that the ancestors of the appellants and the proforma respondents obtained the mortgage by exercising undue influence and by making misrepresentation of facts and / or by perpetrating fraud. In the suit, the appellants filed a written -statement whereby and under they contended that Mst. Azizi had right to create a mortgage and the mortgage in question was validly executed.

(3.) WHILE the suit was pending for trial, in 1978 J&K Agrarian Reforms Act, 1976 came into force. The Court, before whom the suit was pending, forwarded the case to the Collector, Kulgam for taking steps under the said Act. The Collector in the year 1993 held that, since the validity of the mortgage deed was in question in the suit, the civil court alone can decide the same. The respondents preferred an appeal against the said decision before the Joint Agrarian Reforms Commissioner, who upheld the said decision of the Collector. The respondents then filed a revision before the Special Tribunal, J&K, against the said order of the Joint Agrarian Reforms Commissioner. The Tribunal by its order dated August 1, 1996, allowed the revision and ordered as follows: "The orders of the Collector and Joint Agrarian Reforms Commissioner are, therefore, modified to this extent that the petitioners have available forum of Collector under Section 10 of the Agrarian Reforms Act and so the whole record is sent down to the Collector concerned for disposal under law in terms of Section 10 of Agrarian Reforms Act."