1 S. No. 2 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP(C) No. 2880/2022 CM No. 7250/2022 Mst. Fatima …Petitioner(s) Through: Mr. Syed Sajad Geelani, Advocate. Vs. Union Territory of J&K and Ors. ...Respondent(s) Through: Mr. Hakim Aman Ali, Dy.AG. Mr. Z. A. Qureshi, Sr. Advocate with Ms. Rehana Fayaz, Advocate. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 27.02.2025 (ORAL) 1. The petitioner herein has challenged in the instant petition order dated 21.02.2022 (for short ‘the impugned order) passed by the Additional Deputy Commissioner/ Agrarian Commissioner Reforms, Pulwama in an appeal titled as “Mst. Fatima vs. Gh. Hassan Magray”. 2. Facts in brief emerging from the record available on the file would reveal that the petitioner herein preferred the appeal supra before respondent 2 herein against Mutation No.2311 dated 13.05.1992 in favour of respondent 4 herein attested by the Tehsildar Pulwama in respect of land measuring 4 kanals 14 marlas covered under Survey No.1069, along with order dated 27.10.1988 passed by the Assistant Commissioner Pulwama, on the premise that the land in question was possessed by the appellant/petitioner herein pursuant to a sale deed through her father and since the said land was situated in the maternal home village of the petitioner, as such, upon its purchase the same was entrusted by the petitioner herein initially to her brother for looking after the same who however, fraudulently got mutation attested qua the said land in his favour being Mutation No.1751 which mutation came to be challenged by the petitioner herein in an appeal which was allowed and said mutation was set-aside in terms of order 2 dated 22.08.1983 whereupon the land in question was entrusted by the petitioner herein for looking after the same to her sister namely Mst. Saja being the Khana Nasheen daughter as the petitioner herein was married as Khana Beewah daughter, as also in view of the fact that the brother of the petitioner herein had earlier fraudulently got the land mutated in his favour. It is stated that yet again the petitioner herein came to know that a fraudulent mutation had been got attested in respect of land in question by the husband of her sister/respondent 4 herein somewhere in the year 1992 whereupon the petitioner herein preferred the appeal supra which during an enquiry was found to have been got attested by respondent 4 on the basis of an order passed by the Assistant Commissioner Revenue on 27.10.1988 which order, however, despite being searched by the petitioner herein was never found and a copy thereof as well was never furnished to the petitioner herein by the concerned office of the Assistant Commissioner Revenue which had purportedly passed the said order. The petitioner herein while maintaining the appeal supra contended that both order dated 27.10.1988 passed by the Assistant Commissioner Revenue as also impugned mutation attested thereof have had been passed at her back illegally and against law. 3. The appellate authority being respondent 2 herein upon considering the appeal after summoning the respondent therein the appeal being respondent 4 herein passed the impugned order wherein upon an admission made by the respondent 4 herein that mutation is illegal and bad set-aside the said mutation, yet, opined and observed that the revenue entry made in the name of respondent 4 herein qua the land in question cannot be disturbed for having been held clarified in the acquisition process to which the land in question had been subjected to and part of the land consequently acquired and compensation paid thereof to respondent 4 herein. 4. The petitioner herein is aggrieved of the aforesaid opinion and observation made by the respondent 2 in the impugned order and has challenged the same in the instant petition on multiple grounds urged in the petition. 3 5. Objections to the petition have been filed by both official as well as private respondent 4. 6. In the objections filed by official respondents, it is being stated that the mutation under challenge in the appeal supra had been attested under Section 4 of the Agrarian Reforms Act, 1976 (for short ‘the Act of 1976) in favour of respondent 4 and that respondent 4 had conceded that the said mutation could not have been attested under the Act of 1976 though the respondent 4 herein had stated that he has been in exclusive possession of the land in question and that the mutation under challenge came to be attested pursuant to court decree which evidenced through the production of revenue record and land acquisition proceedings undertaken in relation thereto and consequently compensation thereof the land acquired came to be paid to the respondent 4 herein in the capacity as being the recorded owner of the land in question and that said fact had been got established by way of record before the respondent 3 by respondent 4 herein as against none of the records produced by the petitioner herein before respondent 3 herein. 7. 7. In the reply filed by respondent 4 to the petition it is being stated that ownership of land in question got vested unto respondent 4 herein pursuant to a court decree which came to be implemented upon attestation of mutation No.2311 in his favour and that the acquisition proceedings for land in question were undertaken by the Collector and after verifying the ownership of the respondent 4 herein qua the land in question, amount of compensation came to be paid to him and that the petitioner herein is not owner of the land as she ceased to be the owner thereof in view of decree and in fact the petitioner herein in connivance with the revenue authorities manipulated the impugned mutation and consequently challenged before respondent 2 herein. However, it is being admitted that he the answering respondent 4 conceded to the setting aside of the mutation No.2311 challenged by the petitioner herein before the respondent 2 herein and that respondent 2 while deciding the appeal has considered all these facts and though set-aside the mutation under challenge, yet upheld the ownership of the answering respondent qua the land in question. 4 Heard counsel for the parties and perused the record. 8. Having regard to the respective pleadings of the parties available on the file inasmuch as the impugned order as also record of respondent 3 herein admittedly the petitioner herein claimed to be the owner of land in question having purchased pursuant to a sale deed which sale deed however, is not available on the record of the instant petition or even on the record of the respondent 3. It is also not in dispute that the respondent 4 herein claimed to have acquired the land in question pursuant to a decree which decree as well is not available either on the record file of the instant case or else the record of the respondent 3. Since the Mutation No.2311 challenged by the petitioner herein before respondent 3 attested in favour of the respondent 4 qua the land in question indisputably suggests to have been attested on the basis of said decree, the findings recorded thereof by the respondent 3 that the respondent 4 is the owner cannot be accepted more so, on the basis of some enquiry conducted in respect of land during the acquisition proceedings undertaken, in that, the respondent 3 herein could not have relied upon said enquiry in order to arrive at a conclusion that the respondent 4 herein in fact is the owner of the land on the basis of entry made in the revenue records. The respondent 3 herein ought to have provided a chance to both the parties to establish their respective claims over the land in question instead of deciding the appeal summarily. 9. Having regard to the aforesaid position obtaining in the matter, seemingly the matter has not received an appropriate consideration by respondent 3 thus, necessitating remanding of the matter back to the respondent 3 for its re-considering. Accordingly the instant petition is taken up for final disposal with the consent of appearing counsel for the parties and is disposed of as follows: - a. The impugned order dated 21.02.2022 shall stand set-aside. b. The appeal titled as “Mst. Fatima vs. Gh. Hassan Magray” in File No.31/ADC/APP shall stand restored on the files of respondent 2. 5 c. Respondent 2 consequently shall consider and decide the appeal afresh in accordance with law and provide adequate opportunity to both the parties to establish their respective claims by adducing the evidence be it oral or documentary. d. Till such time the appeal is decided as directed above by respondent 2, the parties shall maintain status-quo on spot with respect to the subject matter land. e. It is made clear that respondent 2 shall adjudicate upon the appeal uninfluenced by any observation made by this Court qua the merits of the case respective parties, making it further clear that any observation made hereinabove shall be deemed to have been made only for disposal of the instant petition. 10. Disposed of. (JAVED IQBAL WANI) JUDGE SRINAGAR 27.02.2025 Ishaq Whether the order is speaking? Yes Whether approved for reporting ? No