Rajinder Singh vs State Of Jammu & Kashmir & Ors

1998 in Writ Petition No. 457 of 1993. 2

2. Shortly stated the facts of the case

are that one Makhan Singh was a Displaced

Person in the year 1947 who settled down in

India in the State of Jammu and Kashmir. The

Government of Jammu and Kashmir had taken a

policy decision in the year 1954 to allot

agricultural land with a view to rehabilitate

displaced families who were forced to leave the

other side of the border (now Pakistan) in 1947

in the wake of partition and who were holding

land in that area.

3. The Government, in pursuance of the

said policy, passed an order being Government

Order No. 254 of 1965 conferring ownership

right upon Makhan Singh. The said order reads

thus:

"The Government hereby grant proprietary rights on the State lands in favour of the displaced persons from non-liberated areas of the State who in pursuance of Cabinet order No. 578-C of 1954 or any other order issued prior to the CO No. 578-C of 1954 about allotments in favour of such displaced persons, have been settled on such lands and partly on evacuee 3

lands subject to the condition that the allottees have continuously been holding the land from the date of the allotment and have been so recorded. The grantees shall be liable to the payment of land revenue assessed at village rates according to the class of soil which the land belonged to or has assumed on being cultivated or if there is no village rate available, to such land revenue as may be fixed by the Collector with regard to the assessment of similar land in the assessment circle in which such land is situated and also to the payment of ceases and other dues payable under any land for the time being in force."

4. Paragraph 15-B(2) of the Cabinet Order

No. 578-C of 1954 conferred right on the

allottee as also to the family members. It

reads thus:

"15-B(2) if an allottee dies his interest in the allotted land shall devolve on other members of his family in whose favour allotment of land has been originally made or regularized under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such allotment excluding those who may have died earlier or may have left, the family on account of marriage or adoption."

4 5. It appears that Makhan Singh was

cultivating the land and was the registered

owner of the property. He was conferred

proprietary rights. His name had been entered

in the Jamabandi of 1966-67. It was Mutation

No. 291 of Village Tariara, Tehsil Kathua.

Makhan Singh was shown as the original

allottee.

6. In the year 1981, Makhan Singh died

leaving behind him his sons and daughters. By

an order dated March 13, 1985, Tehsildar,

Kathua substituted the names of Rajinder Singh

(appellant herein) and Daljit Singh, two sons

of Makhan Singh and effected Mutation No. 428

in Revenue Record.

7. Being aggrieved by the said entry in

Revenue Record, Kuldip Kaur and Balbir Kaur

(daughters of deceased Makhan Singh) preferred

appeal before the Divisional Commissioner,

Jammu, inter alia, contending that mutation

made in favour of Rajinder Singh and Daljit

Singh (sons) was illegal and the appellants who 5

were daughters of deceased Makhan Singh were

also entitled to the share in the property of

their deceased father. The Divisional

Commissioner, however, dismissed the appeal by

an order dated January 29, 1990 observing that

the succession devolved on two sons Rajinder

Singh and Daljit Singh and daughters had no

share.

8. Balbir Kaur preferred revision

petition before the Financial Commissioner

against the order passed by the Divisional

Commissioner. But the revision petition was

also dismissed by the revisional authority on

March 12, 1991. The review against the said

order also met with the same fate.

9. Balbir Kaur, therefore, filed a Writ

Petition No. 457 of 1993 for quashing and

setting aside order passed by the Financial

Commissioner. A prayer was made to allow the

writ petition and to cancel mutation effected

in favour of sons of deceased Makhan Singh by

declaring mutation entry null and void. The 6

learned single Judge, however, dismissed the

writ petition.

10. The order passed by the learned Single

Judge was challenged by filing a Letters Patent

Appeal and as observed above, the appeal was

allowed by the Division Bench setting aside all

orders. The said order is challenged by the

appellant, son of deceased Makhan Singh in this

Court.

11. Notice was issued by this Court on

December 13, 2002 and interim stay was also

granted on the order of the Division Bench of

the High Court. Leave was granted on July 25,

2005 and interim relief was ordered to

continue.

12. On April 11, 2008, as per order of

Hon'ble the Chief Justice of India, the matter

was ordered to be placed for final hearing

during summer vacation and that is how the

matter has been placed before us.

13. The learned counsel for the appellant

contended that the Division Bench of the High 7

Court was wholly wrong in allowing the Letters

Patent Appeal and setting aside the orders

passed by the Authorities as also by the

learned single Judge. It was submitted that

the Division Bench of the High Court was wrong

in applying the provisions of Hindu Succession

Act, 1956 ignoring the relevant provisions of

law i.e. the Jammu and Kashmir Hindu Succession

Act, 1956 as also the Jammu and Kashmir Tenancy

Act, 1980. It was also contended that the view

taken by the Division Bench was not in

consonance with Section 3-A of the Agrarian

Reforms Act, Section 67 of the Jammu and

Kashmir Tenancy Act as also Rule 15-B(2) of

Cabinet Order No. 578-C/1954.

14. It was urged that the contesting

respondent herein was the daughter of Makhan

Singh, who had already got married. She,

therefore, could not be said to be a `member'

of Makhan Singh's family and was not entitled

to inherit the property under the Jammu and

Kashmir Act. According to the counsel, the 8

action taken by the Authorities under the

Tenancy Act and the order passed by the learned

Single Judge were legal, valid and in

accordance with law and could not have been

interfered with in Letters Patent Appeal. It

was, therefore, submitted that the impugned

order deserved to be set aside by restoring the

orders passed by the Authorities and confirmed

by the learned Single Judge.

15. The learned counsel for the

respondents, on the other hand, supported the

order passed by the Division Bench of the High

Court and submitted that it was right in

allowing the Letters Patent Appeal and in

making the order. This Court in exercise of

the power under Article 136 of the Constitution

may not interfere with the order.

16. Having heard the learned counsel for

the parties, in our opinion, the High Court was

not justified in entering into larger question

in view the controversy before the Authorities

under the Tenancy Act. From the facts stated 9

above, it is clear that land was allotted to

Makhan Singh as a Displaced Person and in

Jamabandi 1966-67, his name was entered.

Mutation was made in his favour by Entry No.

291 on October 19, 1966. After death of Makhan

Singh in 1981, Tehsildar of Kathua entered

names of sons of deceased Makhan Singh vide

Mutation No. 428. The said action was

challenged by respondent No. 2 herein (one of

the daughters of Makhan Singh) and her sister

Kuldeep Kaur. Their case was that being

daughters, they were also entitled to inherit

the property. The Authorities, in our opinion,

unnecessarily entered into question of rights

of parties as to title to the property.

17. It is well settled that Revenue

Records confer no title on the party. It has

been recently held by this Court in Suraj Bhan

& Ors. v. Financial Commissioner & Ors., (2007)

6 SCC 186, that such entries are relevant only

for "fiscal purpose" and substantive rights of

title and of ownership of contesting claimants 1

can be decided only by a competent civil Court

in appropriate proceedings.

18. It is clear from the record that

grievance of respondent No. 2 daughter related

to Mutation entry. If the Authorities under

the Tenancy Act felt that the action was in

consonance with law, it could have retained the

entry. The inquiry, however, was limited to the

entry in Revenue Records and nothing more. It

had no bearing whatsoever as to right of

ownership, inheritance or title to the

property. In our opinion, therefore, neither

the Authorities under the Tenancy Act nor the

High Court could have entered into question of

ownership, title or inheritance in the present

proceedings and they ought to have decided the

controversy limited to mutation entry in the

Revenue Records.

19. The present appeal, therefore,

deserves to be disposed of by leaving all the

parties to take appropriate proceedings in 1

accordance with law in a competent civil Court

so far as substantive rights of ownership,

title or inheritance are concerned. In view of

the fact, however, that certain observations

have been made and questions have been

considered with regard to rights of sons and

daughters in the property of father under the

Hindu Succession Act as also under the Jammu

and Kashmir Hindu Succession Act, we clarify

that all those observations which were not

relevant in view of the limited question before

the Revenue Authorities, would have no effect

in the proceedings before the Civil Court if

such proceedings have been initiated in a

competent Court.

20. We, therefore, dispose of this appeal

by granting liberty to the parties to take

appropriate proceedings in a competent Civil

Court by making it clear that the observations

made in the orders of Revenue Authorities as

also by the High Court will not come in the way

of the parties in a suit as and when 1

proceedings have been initiated for the purpose

of determination of substantive rights of

ownership.

21. For the aforesaid reasons, the appeal

deserves to be allowed and is accordingly

allowed by setting aside the order passed by

the Division Bench and by granting liberty to

the parties to take appropriate proceedings.

On the facts and in the circumstances of the

case, there is no order as to costs.

............................................................J. (C.K. THAKKER)

NEW DELHI, ............................................................J. JULY 11, 2008. (LOKESHWAR SINGH PANTA)