Kamal Singh and Others vs State and Others

S.K. Gupta, Judge

By means of this petition, the petitioners seek the quashment of the order dated 06/067 2003 passed by the Director, Land Records (with

powers of Commissioner Agrarian Reforms) Jammu, whereby it is held that petitioners and respondents 5 to 9 as co-shares of the land in dispute,

cannot derive the benefit of tenancy, which was further affirmed by the Jammu and Kashmir Special Tribunal, Jammu vide its order dated

31/07/2003, by issuance of an appropriate writ by exercise of writ jurisdiction under Article 226 of the Constitution of India read with section 103

of the Constitution of Jammu and Kashmir State.

The case of the parties enumerated from record in brief is that Makhan and Malarah were real brothers, petitioners and private respondents are

their descendents. Suraj Parkash, one of the co-shares, was serving in Railways and generally remained outside the State. He was co-sharer

alongwith other co-sharers of the land situated at villages Kheri, Badawa Palli and Nandwal. After the death of Suraj Parkash, his legal heirs were

brought on record.

The petitioners, however, claim to have been tenants under one Ami Chand over the land in dispute in Kharif 1971, in respect of which,

mutation was also attested in their favour by Tehsildar Bushman.

The stand of the respondents in controvert the claim of the petitioners is that Suraj Parkash, son of Mahan, husband of Mst. Kavita Devi and

father of other private respondents, was one of the co-sharers of the property along with the petitioners and thus the possession of one of the co-

sharers is deemed to be possession of other co-sharers. It is further stated that the claim of Suraj Parkash cannot be ignored by the other co-

sharers, being in possession of the land in dispute in Kari 1971, because Suraj Parkash being one of the co-sharers of the property would be

deemed to be in possession of the land in dispute.

As per Shajara Nasab, the parties are the co-sharers of the land in dispute. Since Suraj Parkash was in service and died during his service in

Indian Railways, it was not possible for him to cultivate the land personally. The land was in cultivating possession of the other co-sharers and

Suraj Parkash being admittedly one of the co-sharers would be deemed to be in cultivating possession of the said land along with other co-sharers.

The co-sharers are the trustees, therefore, cannot derive the benefit of either adverse possession or tenancy. u/s 2(12) of the Agrarian Reforms

Act, land in possession of one of the co-sharers shall be deemed to be personal cultivation of all other co-sharers. It is also borne out from the

record that Director Land Records visited the spot and recorded the evidence produced by the parties and on the basis of evidence, reached at

the conclusion that the parties are the co-sharers as per Pedigree Table. The record further reveals that Ami Chand and Durga were the sons of

Makhan and after their death, mutation was attested in favour of Suraj Parkash as their legal heir.

Once the parties to the litigation are recorded to be co-sharers of the land in dispute, the possession of one co-sharer shall be deemed to be

possession on behalf of all co-sharers. In such circumstances, co-sharers who are in cultivating possession to the exclusion of Suraj Parkash

cannot take the benefit of being in cultivating possession of land in Kharif 1971.

The contention raised by Mr. CM. Gupta, petitioners Advocate, that section 2(12) of the Agrarian Reforms Act, is applicable only where the

land is unculturable or gairmumkin and the aim and object of the Agrarian Reforms Act is to give land to the tiller, therefore, mutation has rightly

been attested in their favour by the Tehsildar and cannot be accepted being devoid of any legal force.

Suraj Parkash, one of the co-sharers, being serving in Railways and posted outside the State, it was not possible for him to cultivate the land.

The mutation u/s 4 & 8 of the Agrarian Reforms Act got attested by the other co-sharers in cultivating possession in their favour in ignoring the

right of Suraj Parkash, has rightly been held illegal and set aside by the Director Land Records (with powers of Commissioner Agrarian Reforms),

Jammu and upheld by the J&K Special Tribunal, Jammu, in revision. When the revenue record shows that Ami Chand and Durga, sons of Makhan

and the petitioners are the co-sharers of the land in dispute, it cannot be said that any relationship of landlord and tenant existed between Ami

Chand and the petitioners as claimed and on the basis of which, mutation under sections 4 & 8 of the Agrarian Reforms Act, could be attested in

favour of the petitioners. The possession of the petitioners being co-sharers would be deemed to be the possession of the other co-sharers vis-a-

vis Suraj Parkash who was posted in Amritsar and it was not possible for him to cultivate the land personally.

The finding returned by the Director, Land Records (with powers of Commissioner Agrarian Reforms) Jammu to the effect that the petitioners

and respondents 5 to 9 are the co-sharers of the suit land and set aside the mutation attested under sections 4 and 8 of the Agrarian Reforms Act,

which stood affirmed by the J&K Special Tribunal, Jammu, vide its order dated 31/07/2003, is the finding to which no exception can be taken.

I do not find any infirmity or illegality in the orders impugned which calls for interference by this Court.

In the result, there is no merit in this writ petition and is, accordingly, dismissed. Interim direction dated 01/09/2003 shall stand vacated.