GOPAL SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THE petitioners challenge the order -dated 7.1.97 passed by the Financial Commissioner. Jammu whereby revision against the order of the Divisional Commissioner dated 9.8.95 was allotted and order dated 3.4.91 passed on Mutation No. 125 of village Pokharni Tehsil Nowshera passed by the Assistant Commissioner(s) was set aside. The petitioners it appears claimed ownership on the basis of document of sale dated 19 har 1983 BK executed by the owners in favour of the petitioners. But the Assistant Commissioner (R) Rajouri vide order dated 20.11.77 on Mutation No. 113 held them occupancy tenants of land measuring 229 kanals 18 marlas comprising kh. no. 125, 47, 48, 48 -min, 49, 50, 53, 55, 56, 57, 58 and 58 -min situated in village Pukharni Tehsil Nowshera. This order was challenged by them in revision before the Divisional Commissioner on the plea that they were owners and not occupancy tenants as found by the Assistant Commissioner. They also pleaded that although mutation of ownership was also recorded in their favour but because of partition, record of the village is not available because this village fell in Tehsil Kotli which is now in occupation of Pakistan. The Divisional Commissioner, Jammu vide order Dated 30.11.90 while allowing the revision directed the Assistant Commissioner to hold fresh enquiry into the following issues

(2.) THE Assistant Commissioner after holding enquiry passed fresh order on 3.4.91 holding that the erstwhile owners had infact transferred ownership in favour of the petitioners. He therefore, attested mutation no. 125 in favour of the petitioners. The Custodian Jammu Evacuee Property challenged this order in revision before the Divisional Commissioner which was dismissed on 9.8.95 holding it to be barred by time. This order was challenged by the Custodian in revision before the Financial Commissioner who allowed the same and set aside mutation no. 125 attested on 3.4.91 without expressing any opinion with regard to the status of the petitioners.

(3.) MOREOVER , the Financial Commissioner has assumed that the owners of the land are evacuees even though there is no declaration under Section 6 of the Evacuee Act. Section 6 of the Act reads as under: