HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU WP(C) No. 2741/2023 CM No. 6461/2023 Reserved on:- 08.09.2025. Pronounced on:- 11.09.2025 Parma Nand and ors. …..Appellants Through: Mr. Ankur Sharma, Advocate Vs Additional Deputy Commissioner Udhampur & anr. .…. Respondents Through: Mrs. Monika Kohli, Sr. AAG Mr. G.S Thakur, Advocate. CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE JUDGMENT 1. The petitioners have challenged order dated 07.12.2021 passed by Additional Deputy Commissioner, Udhampur (with `the powers of Commissioner, Agrarian Reforms), respondent No. 1 herein whereby appeal filed by respondent No. 2 against Mutation No. 543 dated 24.11.2011 in respect of land measuring 13 kanals 07 marlas falling in khasra No. 223-old (Khasra No. 919-new) of village Omara Tehsil and District Udhampur has been set aside and the previous position which existed prior to passing of the said mutation order has been restored. 2. According to the petitioners, they are in continuous and peaceful physical possession over the land in question and neither respondent No. 2 nor his predecessor-in-interest have remained in possession of the said land. It has been submitted Sr. No. 93 2 WP(C) No. 2741/2023 that mutations under Sections 4 & 8 of the J&K Agrarian Reforms Act were attested by Tehsildar Udhampur in favour of the petitioners in terms of Mutation Order No. 543 dated 24.11.2011 but the same was challenged by respondent No. 2 by way of an appeal before respondent No. 1, who vide impugned order dated 07.12.2021 has allowed the appeal. 3. The petitioners have challenged the impugned order passed by respondent No. 1 on the grounds that the said respondent has, despite noticing that the petitioners were in possession of the land in question prior to the year, 1966, proceeded to set aside the mutation attested in favour of the petitioners under Sections 4 & 8 of the Agrarian Reforms Act. It has been further contended that Tehsildar Udhampur, has, pursuant to remand order passed by respondent No. 1 in the earlier round of litigation on 22.10.2009, properly made enquiry and on the basis of the evidence collected on spot, he has found that father of the petitioners and thereafter, the petitioners are in open continuous, uninterrupted and peaceful physical and cultivating possession of the land in question. It has been further contended that the impugned order is liable to be set aside on the ground that the same has been passed contrary to the provisions contained in Rule 50 of the Agrarian Reforms Rules, inasmuch as, the respondent No. 1 has not decided the appeal on spot. 3 WP(C) No. 2741/2023 4. Respondent No. 2 has contested the writ petition by filing objections thereto. It has been submitted that the petitioners are unauthorized occupants of the land in question which was transferred in the name of Baggu S/o Devi Dayal in terms of provisions contained in Big Landed Estate Abolition Act, 2007 but the petitioners managed to get their names reflected in the revenue record in a fraudulent manner. It has been submitted that Late Baggu had executed last Will in favour of his son Ram Chand on 28.02.1958 which was duly registered on 01.04.1958 and after his death, estate of Late Baggu devolved upon father of respondent No. 2. 5. It has been submitted that the petitioners are neither tenants nor they have any relationship of landlord-tenant with respondent No. 2 or his predecessor-in-interest. According to respondent No. 2, the petitioners are trespassers over the land in question. It has been submitted that father of respondent No. 2 filed a petition before Tehsildar Udhampur on 18.02.1971 seeking restoration of possession of the land and the said petition was allowed on 07.02.1972 whereafter, a direction was issued for restoration of possession of the land in question in favour of father of respondent No. 2. It has been further submitted that the said order was challenged by the petitioners before the Deputy Commissioner, who remanded the case to the Tehsildar with a direction to conduct enquiry to the extent whether the petitioners 4 WP(C) No. 2741/2023 came in possession of the land with the consent of the land owners, if not, with whose consent, they came in possession and how they come in possession of the land. It is submitted that the petitioners instead of pursuing the said order before the Tehsildar have, in a clandestine manner, got the mutation under Sections 4 & 8 of the Agrarian Reforms Act attested in their favour which prompted respondent No. 2 to file an appeal against the said mutation of Sehat Indraj which has been set aside by respondent No. 1 holding that the petitioners are trespassers. 6. It has been further submitted that the petitioners had earlier filed a petition before Assistant Commissioner, Revenue (with powers of Collector) seeking an injunction against respondent No. 2 prohibiting him from interfering in their possession over the land in question which petition was allowed in ex-parte. The said order came to be challenged by respondent No. 2 before respondent No. 1, who set aside the said order by holding that the petitioners failed to prove their authorized possession over the land in question in terms of order dated 30.07.1974. The aforesaid order was passed by respondent No.1 on 07.12.2021. It has been contended by the respondents that the aforesaid order has not been challenged by the petitioners and that the same has acquired finality. Therefore, the petitioners are liable to be evicted from the land in question having been declared as unauthorized occupants. 5 WP(C) No. 2741/2023 7. I have heard learned counsel for the parties and perused record of the case. 8. Before dealing with the grounds of challenge which have been projected for assailing the order passed by respondent No. 1, it would be proper to refer to the litigation inter se the contesting parties in respect of the land which is subject matter of the present writ petition. 9. It seems that Mutation No. 209 came to be attested in respect of the land in question in favour of Baggu under Big Landed Estate Abolition Act, 2007 Svt.. After the death of Baggu, in terms of the Will Deed executed by him, mutation in respect of the land in question was attested in favour of Ram Chand, the predecessor-in-interest of respondent No. 2. Thereafter, vide Mutation No. 267 of village Omara, Tehsil Udhampur, in terms of Section 20 of the Big Landed Estate Abolition Act, 2007, estate of Ram Chand came to be transferred in favour of State but he challenged the said order by way of a revision petition before Financial Commissioner, who vide order dated 18.03.1966 restored the estate to Ram Chand. 10. It appears that in the meantime, the land came under the possession of petitioners whereafter, Ram Chand, the predecessor-in-interest of respondent No. 2 filed an application under Section 12 of the Big Landed Estate Abolition Act seeking restoration of possession. The said application was made before 6 WP(C) No. 2741/2023 Tehsildar, Udhampur who, vide order dated 07.02.1972 held that the petitioners are unauthorized occupants of the land in question and they cannot maintain their possession over the said land. The aforesaid order came to be challenged by the petitioners by way of an appeal before respondent No. 1, who vide order dated 30.07.1974 remanded the case to the Tehsildar with an observation that an enquiry has to be made as to how the petitioners have come into possession of the land in question and when they have come in the possession of the said land. It was further observed that enquiry is to be conducted as to whether predecessor-in-interest of respondent No. 2 had consented to possession of the petitioners over the land in question. 11. It seems that Tehsildar Udhampur passed Mutation Order No. 886 dated 19.02.1999 under Section 4 and Mutation Order No. 892 dated 13.05.1999 under Section 8 of the Agrarian Reforms Act in respect of the land in question and by virtue of these orders, the petitioners were conferred with the prospective ownership rights in respect of the land in question. The said order came to be challenged by respondent No. 2 and his mother by way of an appeal before respondent No. 1 who, vide order dated 22.10.2009 remanded the case to the Tehsildar concerned after setting aside Mutation Nos. 886 and 892. Respondent No. 2 held that the said mutation orders are illegal and against the provisions of the statute as the same have been attested in the 7 WP(C) No. 2741/2023 absence of respondent No. 2 and his mother. It was also observed that mutation under Section 4 of the Agrarian Reforms Act having been attested by Naib Tehsildar, who is not the competent authority. Accordingly, the case was remanded to the Tehsildar concerned for de-novo enquiry and for passing fresh order after hearing the parties. 12. After the remand of the case, the Tehsildar concerned again attested Mutation No. 543 in respect of the land in question on 24.11.2011 by virtue of which, Mutation Order Nos. 886 and 892 have been confirmed. This order passed by the Tehsildar on 24.11.2011 came to be challenged by respondent No. 2 before respondent No. 1 who, vide impugned order has allowed the appeal and set aside Mutation Order No. 543 dated 24.11.2011 of village Omara Tehsil Udhampur. 13. Before testing the legality and validity of impugned order passed by respondent No. 1, it would be apt to refer to another aspect of the litigation between the parties The petitioners, on 13.08.2007 filed a suit against respondent No 2 before the Court of Assistant Commissioner, Revenue (Collector, Agrarian Reforms) Udhampur seeking an injunction against respondent No. 1 restraining him from interfering in possession of the petitioners over the land in question. The said suit was decreed by Assistant Commissioner, Revenue vide his order dated 20.11.2012 and it was held that the petitioners are in lawful possession of the land 8 WP(C) No. 2741/2023 in question and that respondent No. 2 has to be restrained from interfering in the land in question. The said order came to be challenged by respondent No. 2 by way of an appeal before respondent No. 1. The appeal has been allowed by respondent No. 1 vide order dated 07.12.2021 and the order dated 20.11.2012 passed by Assistant Commissioner, Revenue, Udhampur has been set aside and a direction has been issued to the said authority to evict the petitioners from the land in question. It has been held in the said order that the petitioners are not tenants but are only trespassers/unauthorized occupants. 14. The ground urged by the petitioners for impugning order dated 07.12.2021 passed by the respondent No. 1 is that the said order has been passed without waiting for the result of de-novo enquiry of the Tehsildar which was to be conducted pursuant to order dated 30.07.1974 passed by respondent No. 1. It has been submitted that without there being an enquiry as to when the petitioners have come in possession of the land in question and in what manner, they have come in possession of the said land, the impugned order of mutation passed by the Tehsildar on 24.11.2011 could not have been set aside by respondent No. 1. It has been further contended that the petitioners have all along been in possession of the land in question right from the year, 1966 and on the crucial date i.e. in Kharief 1971, they were in possession of the suit land as tillers. Therefore, the Tehsildar has 9 WP(C) No. 2741/2023 rightly attested mutation under Sections 4 & 8 of the Agrarian Reforms Act in favour of the petitioners and the said order could not have been set at naught by respondent No. 1. 15. It is true that vide order dated 30.07.1974 passed by respondent No. 1 in appeal filed by the petitioners in respect of order dated 07.02.1972 passed by the Tehsildar a direction for holding de-novo enquiry with regard to the question as to when petitioners have come in the possession of the land in question and how they have come into possession of the same has been passed. Pursuant to said direction, in the first instance, the Tehsildar concerned made an ex-parte enquiry and passed mutation order Nos. 886 and 892 which came to be set aside by respondent No. 1 in terms of order dated 22.10.2009. After remand, the Tehsildar again confirmed the aforesaid mutation orders vide Mutation Order No. 543 dated 24.11.2011. A perusal of the said order passed by the Tehsildar reveals that the same is also ex-parte in nature. Although it is recorded in the mutation order that summons were issued to respondent No. 2 herein for seeking his appearance but he did not respond, yet there is nothing on record to show that the summons were actually served upon respondent No. 1. Thus, the enquiry conducted by the Tehsildar even on the second occasion is clearly ex-parte in nature. Therefore, the finding of respondent No. 1 recorded in the impugned order that procedure prescribed under law has not 10 WP(C) No. 2741/2023 been followed by the Tehsildar while passing Mutation Order No. 543 dated 24.11.2011 does not call for any interference. 16. After setting aside the Mutation order dated 24.11.2011, respondent No. 1 has not remanded the case to the Tehsildar concerned for holding a fresh enquiry in accordance with the mandate of order dated 22.10.2001 passed by the said respondent in earlier round of litigation between the parties. In these circumstances, ordinarily the course open to respondent No. 1 was to direct de novo enquiry by the Tehsildar but in the instant case, another important development is required to be noticed. There is a finding of fact recorded by respondent No. 1 to the effect that the petitioners are unauthorized occupants of the land in question and not the tenants. This finding has been recorded in another litigation between the parties, while deciding the appeal against order dated 20.11.2012 passed by Assistant Commissioner, Revenue, Udhampur in a suit filed by the petitioners against respondent No. 2. The said order dated 07.12.2021 passed by respondent No. 1 in separate proceedings has not been put to challenge by the petitioners. Therefore, the finding that the petitioners are unauthorized occupants of the land in question and not its tenants is binding upon them. 17. Once the aforesaid finding has acquired finality against the petitioners, the mutation under Sections 4 & 8 of the Agrarian Reforms Act in respect of the land in question cannot be attested 11 WP(C) No. 2741/2023 in their favour. This is so, because the finding that the petitioners are not the tenants but unauthorized occupants of the land in question militates against their status as tillers of the land in question. 18. Learned counsel for the petitioners has relied upon Clause (16) of Guidelines for making up deficiency in land of displaced persons of 1947 (Council Decision No. 350 dated 01.09.1971) to press home the contention that displaced persons who, without any order of competent authority got possession of and cultivated evacuee/Government land up to Rabi, 1965 and have not other land allotted in their names are allowed to retain the said land. I am afraid, the said Cabinet Decision is not applicable to the facts of the present case. This is so, because as per the own case of the petitioners, they have come into possession of the land in question in the year, 1966. Thus, they were not in possession of the said land in Rabi 1965. The petitioners, therefore, do not satisfy the requirements of Clause (16), on which reliance has been placed by them. 19. For what has been discussed hereinabove, mutation under Section 4 and Section 8 of the Agrarian Reforms Act cannot be attested in favour of the petitioners. The impugned order passed by respondent No. 1, therefore, calls for no interference from this Court. The writ petition lacks merit and is dismissed accordingly. 12 WP(C) No. 2741/2023 20. Record of the respondent No. 1 be sent back. (SANJAY DHAR) JUDGE JAMMU 11.09.2025 Tarun/PS Whether the order is speaking? Yes Whether the order is reportable? No Mahavir Singh 2025.09.11 18:49 I attest to the accuracy and integrity of this document