JUDGMENT
S.K. Gupta, J.
1. Mutation No. 1908 in respect of land located in village Paloura was attested by the Tehsildar, Jammu on 15th May, 1986, whereby entry of cultivation was corrected by entering the name of the petitioner as tenant. Against this order of mutation and correction of the entry, an appeal came to be preferred before the Joint Financial commissioner by the respondents. An order for maintaining status-quo on the spot was passed by way of an ad-interim relief in the said appeal. During the currency of the proceedings in the said appeal, Tehsildar Jammu by virtue of mutation No. 3752, made another order dated 17th May, 1991 in terms of Section 12 of the Agrarian Reforms Act, vesting the proprietary rights on the petitioner in respect of the land aggregating 2 Kanals and 1 marla; out of 6 kanals and 4 marlas of land and allowed the resumption of the remaining land by Shri Buti Sing. Both the cases pertain to the same land, between the same parties and thus were clubbed by transferring from Joint Financial Commissioner to Financial Commissioner. The Financial Commissioner after hearing the parties and scanning the material including the Revenue Record held that the mutations are contrary to the spirit of Agrarian Reforms Act and set at naught the objective as espoused in the Act to benefit the tillers. Rather the mutation No. 3752 has been used as a subterfuge for introducing new tenancy and to circumvent the provisions of law and Financial Commissioner set aside the mutations in respect of the land contained in khasra No. 161 Min. measuring 6 kanals and 4 marlas in village Paloura, in allowing the appeals.
2. Against the order of the Financial Commissioner with powers of Commissioner, Agrarian Reforms, J&K, Jammu dated 12th March, 1997, the present petitioner, who happened to be respondent before the Appellate Authority, preferred a revision before the Jammu & Kashmir Special Tribunal to impugn its correctness.
3. The contention raised by the petitioner before the Revisional Court, however, did not merit acceptance and the revision was dismissed in observing as under:
“The base of the contention of Ld. Counsel for the petitioner is built on the assumption that co-sharer Buti Singh was in possession of his share of land which tantamounts of partition and so other co-sharers and recorded tenants has lost interest in the land.
However, such assumption has been repelled by the Ld. Court below by observing that all the co-sharers has not been associated with the proceedings by the Tehsildar, the persons recorded in cultivating possession has not been heard, no evidence was adduced to establish that the land had been partitioned and stood included in the exclusive share of Buti Singh alone. And therefore no proper enquiry stood conducted. This position is being sought to be controverted only on oral submission not supported by any record. Admission of Buti Singh alone that the petitioner was cultivating the land as tenant cannot bind other co-sharers. The denial of opportunity of being heard to other co-sharers vitiates the mutation order. As the petitioner was not found to have been validly recorded in cultivation through the impugned mutation order the agreement and thereon mutation Under Section 12 could also not be attested. Ld. Court below for very cogent and sound reasons set aside the orders impugned before the Court below.”
4. The main plank of the learned counsel appearing for the petitioners is that the land covered under Khasra No. 161 Min was jointly owned by Buti Singh, now deceased survived by respondents No. 8 to 12, Rashpal Singh and the other brother, namely, Kamal Singh who died in the year 1985 and is survived by respondents No. 3 to 6 but still Buti Singh and other co-sharers were in possession of their respective shares. According to the petitioner, the land was in his cultivating possession in Kharif 1971 as tenant but was contrary to the recorded position in Girdawari. It was further stated that the ex-landlords also happened to be consenting party to the agreement and admitted the petitioner in cultivating possession as tenant. That the correction in the Girdawari entry with regards to the cultivating possession of the petitioner was rightly ordered by the Tehsildar vide Mutation No. 1908. The petitioner further pleaded that there was no illegality in attesting the mutation after the owner and the tenant had entered into an agreement in respect of resumption of land under Section 12 of the Agrarian Reforms Act.
5. A detailed counter to the writ petition has been filed by the respondents in controverting the contention of the petitioner and pleaded that the petitioner was never in possession of the land prior to 1971 and thereafter upto 1985. That the petitioner in collusion with the Revenue Authorities got the mutation for correction of revenue entry attested in violation of procedure laid down under the J&K Agrarian Reforms Act and the rules framed thereunder. That the land is held by the respondents as co-sharers and all the co-sharers were required to be heard before passing any order adverse to their interest. Correction of revenue entry and attestation of mutation was made by the Revenue Authorities without associating the co-sharers and the persons who were in cultivating possession of the land in dispute and thus rendered the mutations illegal and set aside by the Commissioner; Agrarian Reforms, which also stood dismissed by the Revisional Authority in revision preferred by the petitioner. It was also stated that since the petitioner was not validly recorded in cultivating possession of the land through the impugned mutation order, the agreement regarding resumption and thereon mutation under Section 12 could not be attested.
6. The facts as stated in the orders passed by the Appellate Authority from the revenue record and further reiterated in the orders passed by the Revisional Authority, it is indisputably gatherable that the land comprising Khasra No. 161 was in joint ownership of large number of persons and Buti Singh was one of them. There was nothing in the record to show as to how and on what basic petitioner came to be recorded as tenant under Buti Singh by making correction in the entries of the revenue record. It were Jagdish Singh and Harbans Singh shown in cultivating possession of the land in dispute. Relying on verbal statement of Buti Singh, one of the co-sharers, Tehsildar made correction in the revenue entries and recorded the petitioner Raghubir Singh in cultivating possession as tenant. There record further revealed that other co-sharers were neither associated with the proceedings nor the persons shown in cultivating possession were heard. That even there was no evidence adduced that the land had been partitioned and stood included in the share of Buti Singh. In the absence of such primary and perspective evidence, it is not understandable how the Naib-Tehsildar, without application of mind and conducting any enquiry into the matter, arrived at a conclusion about the continued cultivating possession of Raghubir Singh petitioner.
7. It is settled proposition of law that the revenue record being an official record cannot be controverted merely on oral statement/submissions. Assuming that there was admission of Buti Singh, one of the co-sharers, that petitioner was in cultivating possession of land as tenant, such admission does not bind the other co-sharers. In the absence of any positive, cogent and satisfactory proof of evidence of partition, a mutation order without associating the other co-sharers and providing an opportunity of being heard, cannot be said to be a valid order. When the petitioner does not figure in any of the revenue records as a tenant and the land in dispute is recorded in cultivating possession of Jagdish Singh and Harbans Singh, correction in the entry by mutation No. 1908 dated 15th May, 1986 and mutation on the basis of an agreement in respect of resumption under Section 12 of the Agrarian Reforms Act, could not be attested. It is not disputed that the other co-sharers were not present at the time of correction of entries or attestation of the mutation under Section 4. Even the persons in cultivating possession were not called on spot at the relevant time, nor enquiry with regard to partition of the land was conducted. Therefore, mutation No. 1908 under Section 4 and subsequently mutation No. 3752 on agreement for resumption under Section 12 of the Act being in contravention of the provisions of the Agrarian Reforms Act and the Rules, and also violative of the procedure relating to attestation of mutation, under the garb of which a new tenancy was created in favour of the petitioner, are vitiated. I do not find any infirmity, legal or factual, in the orders drawn by the Appellate Authority as well as Revisional Authority impugned in this petition inviting interference of this Court. The orders impugned have been passed by respondents No. 1 and 2 are the speaking orders strictly in accordance with the provisions contained in Agrarian Reforms Act and Rules framed thereunder.
8. In view of the above, the inevitable conclusion reached is that correction in the Khasra girdawari with regard to cultivating possession in favour of the petitioner, without any evidence, basis or proof, was to manipulate the agreement for resumption and thereon mutation under Section 12 of the Agrarian Reforms Act. I, therefore, do not find any merit in this writ petition and is accordingly dismissed.