1 OWP No. 2244/2015 Sr. No. 04 Regular List IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR OWP No. 2244/2015 Muhammad Akbar Bhat and Another …Petitioner(s)/appellant(s) Through: Mr. G.A. Lone, Advocate with Mr. Mujeeb Andrabi, Advocate Vs. J&K Special Tribunal and others ...Respondent(s) Through: Mr. Satinder Singh, AAG Mr. Aftab Ahmad, Advocate for 4 to 22 CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE O R D E R 18.02.2025 1. The two petitioners, namely, Mohammad Akbar Bhat and Mansoor Ahmad Bhat, along with late Ali Bhat, are real brothers being sons of Mehda Bhat. 2. All three above named persons are said to have succeeded in respective share to the estate of their father Mehda Bhat so as to become owner in their own right of the estate inherited and acquired individually by them. 3. With respect to the estate of their brother Ali Bhat, the operation of Agrarian Reforms Act, 1976 is purported to have taken effect in the form of attestation of mutation No. 352 dated 30.07.1982 under section 4 and mutation No. 407 dated 05.01.1989 under section 8 of the Agrarian Reforms Act, 1976 qua the land measuring 2.9 kanal comprising Survey No. 403/26 of mauza Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 2 OWP No. 2244/2015 Nullay Poshwari district Shopian, thereby purportedly introducing and inducting two persons namely Mohd Ramzan (Ramzan Dar) and Ghulam Qadir (Qadir Dar), both sons of Mohd Dar, first as prospective and then new owners. 4. Said two mutations came to be challenged by the two petitioners in appeal under section 21 of the Agrarian Reforms Act, 1976 before the appellate authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Shopain, by instituting two appeals on File Nos. 279/ADC and 279/1/ADC of 2001. 5. In their said two appeals, the two petitioners, as being the appellants, came to name three persons as respondents, namely Mohd Ramzan, Ghulam Qadir and Ali Bhat, the petitioners’ brother. 6. During the pendency of said appeal, all said three respondents, namely Mohd Ramzan, Ghulam Qadir and Ali Bhat, came to expire necessitating the petitioners, as being the appellants, to come forward with individual applications for bringing on record the legal representatives of the three deceased respondents to carry forward the adjudication of said two appeals to logical end. 7. The applications so filed by the petitioners with respect to bringing on record the legal representatives of two deceased Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 3 OWP No. 2244/2015 respondents namely Mohd Ramzan and Ghulam Qadir came to be allowed by the appellate authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms) Shopain, but insofar as the application for bringing on record the legal representatives of the deceased respondent No. 3-Ali Bhat is concerned, the same came to land in troubled waters as the said application presented on 22.07.2008 was held to be time barred by reference to the date of death of Ali Bhat who had demised on 27.12.2005. 8. The appellate authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms) Shopain held that the filing of application by the petitioners, as being the appellants, for bringing on record the legal representatives of respondent No. 3-Ali Bhat was after a gap of two years and eight months as against the prescribed period of six months for bringing on record the legal representatives of a deceased respondent in an appeal and, as such, held the petitioners’ appeals in entirety having abated and, therefore, dismissed the two appeals filed by the petitioners/appellants and that is how institution of present writ petition came to take place to question the non-suiting of the petitioners in their said two appeals. Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 4 OWP No. 2244/2015 9. Under the Agrarian Reforms Act, 1976, the adjudicatory jurisdiction is in terms of section 21 providing for appeals and revisions. 10. Section 22 provides limitation period for appeals. In terms of sub section (2) of section 22, the provisions of Jammu and Kashmir Limitation Act, Svt. 1995 (1928 A.D) are made applicable to appeals under the Agrarian Reforms Act, 1976. 11. Thus, by operation of section 22 (2) of the Agrarian Reforms Act, 1976, First Schedule entries of the Limitation Act, Svt. 1995, insofar as relevant to appeals, are also applicable with respect to the appeals under the Agrarian Reforms Act, 1976. 12. Entry 177 of 3rd Division of First Schedule of the Limitation Act, Svt. 1995 provides for the legal representatives of a deceased respondent or a deceased defendant to be made as a party within a period of six months from the date of death of respondent or defendant. 13. The concept of legal representatives under the J&K Code of Civil Procedure Svt., 1977 (now the Code of Civil Procedure, 1908,) is provided in its under Order XXII (22) which deals with death, marriage and insolvency of parties in relation to a civil suit. Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 5 OWP No. 2244/2015 14. Order XXII rule 11 CPC provides for the application of the entire said Order from rule 1 to 10 to the appeals as well, meaning thereby that death, marriage and insolvency of parties in an appeal under CPC is also to be governed by the mandate of Order XXII. 15. Section 20 of the Agrarian Reforms Act, 1976 provides for special powers of the revenue officers/appellant/revisional authorities vested with jurisdiction under the Agrarian Reforms Act, 1976 to have all the powers of a civil court while trying a civil suit under the Code of Civil Procedure Svt. 1977 in respect of the enlisted matters. Section 20(d) provides for any other matter which may be prescribed. 16. In terms of the J&K Agrarian Reforms Rules, 1977, rule 48 provides that the provisions of the Code of Civil Procedure Svt. 1977 relating to appeals from original decrees shall apply mutatis mutandis to all appeals under the Agrarian Reforms Act, 1976 meaning thereby that Order XXII Rule 11 of the J&K Code of Civil Procedure Svt., 1977 is also applicable with respect to an appeal under the Agrarian Reforms Act, 1976 to cater to the situation of death, marriage and insolvency of parties to an appeal be it appellant/s or the respondent/s. 17. Order XXII Rule 10 (A) CPC came to be incorporated by virtue of an amendment w.e.f 1.02.1977 placing a duty upon Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 6 OWP No. 2244/2015 onus an advocate of a party to lis apprise the court seized of the lis about the death of the party being represented by the reporting counsel. 18. There is no denial to the required position of law that in the present case, the petitioners, as being the appellants, were supposed to have filed an application for bringing on record the legal representatives of the deceased respondent No. 3-Ali Bhat within a period of six months from the date of death of Ali Bhat. There is also no doubt with respect to the fact that Order XXII CPC in its entirety in the context of appeals under CPC is also applicable with respect to an appeal under the Agrarian Reforms Act, 1976. 19. However, Order XXII CPC has different shades of contingencies relatable to a death, be it plaintiff/s or appellant/s, defendant/s or respondent/s. 20. Order XXII Rule 2 CPC is in the context of number of plaintiffs or defendants in a civil suit, correspondingly meaning number of appellants and respondents in an appeal, providing for contingency that in case right to sue survives against the surviving defendant/s, then in the event of one of the defendants the court is to cause an entry to that effect to be made on the record for enabling the continuation of the suit against the surviving defendant/s. Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 7 OWP No. 2244/2015 21. It is only in the event of a right to sue not surviving against the surviving defendant/s or respondent/s, then only bringing on record legal representative/s of a given deceased defendant/respondent becomes indispensable for the plaintiff/appellant for continuation of the suit/appeal otherwise the suit/appeal is meant to abate but that too not in its entirety but qua the deceased defendant/respondent as the facts and circumstances of a particular case may warrant. 22. Order XXII Rule 1 CPC in clear terms provides that a death of a plaintiff or defendant not to cause abatement of a suit if the right to suit survives. 23. Even in those scenarios where on account of death of defendant/respondent an abatement takes place or is meant to take place, Order XXII CPC still provides a scope for a plaintiff/appellant to salvage the situation by seeking setting aside of the abatement as provided in terms of Order XXII Rule 4 CPC. 24. The essence of Order XXII CPC is to ensure that a lis does not suffer frustration in the event of abatement taking place without any act of omission or commission on the part of a plaintiff or appellant, as the case may be. 25. In the present case, the appellate authority of Additional Deputy Commissioner (Commissioner Agrarian Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 8 OWP No. 2244/2015 Reforms), Shopian by a mechanical stroke of pen came to hold the appeal filed by the petitioners abating in its entirety for delayed filing of the application for bringing on record the legal representatives of the deceased respondent No. 3-Ali Bhat and, thus, by virtue of an order dated 13.04.2011 dismissed the appeal leaving the petitioners none suited in their cause even against the two surviving respondents. 26. Against the said order dated 13.04.2011, the petitioners preferred a revision petition before the Jammu and Kashmir Special Tribunal in terms of the Section 21 of the Agrarian Reforms Act, 1976 so as to salvage their appeal but the Jammu and Kashmir Special Tribunal also followed the footsteps of the appellate authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Shopian and dismissed the revision petition of the petitioners holding that the appeal had abated for not bringing on record the legal representatives of the deceased respondent No. 3-Ali Bhat within the prescribed period. 27. 27. A bare perusal of the order dated 13.04.2011 of the appellate authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Shopian would show that the appellate authority skipped due application of mind in the context of Order XXII CPC, firstly on the count whether the right to sue/appeal by reference to death of respondent No. 3 Ali Bhat was Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 9 OWP No. 2244/2015 surviving qua two surviving respondents or not and secondly, the appellate authority also missed out in stating as to how time was set running out against the appellants, the petitioners herein, in the matter of making an application for bringing on record the legal representatives within six months from the date of death of respondent No. 3-Ali Bhat when in the order dated 13.04.2011 it is nowhere found mentioned that the fact of demise of the respondent No. 3- Ali Bhat was brought on record from the two surviving respondents’ end or for that matter from the counsel representing the deceased respondent No. 3-Ali Bhat which is an onus in terms of Order XXII Rule 10A CPC. 28. In the light of these facts and circumstances, this Court reckons that the two authorities i.e., the Appellate Authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Shopian and the Revisional Authority of Jammu and Kashmir Special Tribunal fell in manifest error of judgment in non- suiting the petitioners in their appeals. 29. This Court came to summon the record of the appellate authority of the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Shopian only to be reported back that the said record of appeal has been gutted in fire. Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025 10 OWP No. 2244/2015 30. A copy of the memo of appeal has, however, been brought on record by the contesting respondents and that would suffice the purpose of reconstructing the appeal so filed. 31. Insofar as the challenged mutations are concerned, the same can be procured afresh from the attesting officer concerned. 32. The present writ petition is, thus, allowed. The order dated 13.04.2011 of the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Shopian, read with order dated 20.10.2025 of J&K Special Tribunal are set aside. 33. The application filed by the petitioners in their appeal before the court of Additional Deputy Commissioner (Commissioner Agrarian Reforms) Shopian, for seeking impleadment of legal representatives of the deceased respondent No. 3-Ali Bhat is allowed. Legal representatives named in the said application to be brought on record notified for appearance in the appeal before the Additional Deputy Commissioner (Commissioner Agrarian Reforms) Shopian. 34. Parties to appear before the Appellate Authority on 21.04.2025. (RAHUL BHARTI) JUDGE SRINAGAR 18.02.2025 ARIF Arif Hameed I attest to the accuracy and authenticity of this document 10.03.2025