Shri Tej Bahadur vs State Of J&K And Others
2023 Latest Caselaw 1376 j&K/2

                                                        Sr. No.11
                                                        Regular List
     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                          OWP No.23/2012


SHRI TEJ BAHADUR                                   ...PETITIONER(S)

          Through: Mr. M. Ashraf Bhat, Advocate.

Vs.

STATE OF J&K AND OTHERS                         ....RESPONDENT(S)

Through: Mr. Rouf Parray, Advocate.

CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

ORDER(ORAL 31.10.2023

1. The petitioner has challenged order dated 29.12.2011

passed by the Financial Commissioner (R) in an appeal

under J&K Migrant Immovable Property (Preservation,

Protection and Restraint on Distress Sales) Act, 1997

(hereinafter referred to as "the Act of 1997"). A further

direction has been sought upon respondents No.15 to 18 to

handover possession of the land measuring 3 kanals

covered by Khasra Nos.964/884 and 745 Khewat Nos.485

and 496 situated at Damodar Karewa Tehsil and District

Budgam.

2. Briefly stated, case of the petitioner is that he had

purchased land measuring 03 kanals under Khasra

No.2682/2563/885 Khewat No.485 by virtue of two sale

deeds executed on 02.09.1988 and registered on

22.11.1988. Vide one sale deed, the petitioner had

purchased 01 kanal 10 marlas from Malla Mohammad and

vide another sale deed, he had purchased 10 marlas from

Malla Ismail and 01 kanal from Malla Mohammad. It is case

of the petitioner that Malla Mohammad, Malla Ismail and

Malla Samad are sons of one Ahmad Malla who owned huge

landed property in common Khewat Nos.485, 495, 550,

493, 490, 494, 502, 506 and 513. According to the

petitioner the land under Khewat No.485 was in joint

possession and ownership of Samad, Ismail and

Mohammad Malla.

3. In short, case of the petitioner is that the whole land

in Khewat No.485 under different Khasra Nos. was under

the joint possession and ownership of the persons from

whom he has purchased the land in question, which is

measuring 03 kanals. It is submitted by the petitioner that

on account of his migration and due to abnormal situation

in the Valley, the mutation in respect of the land that was

subject matter of the sale deeds could not be attested in his

favour in the revenue record. It is being submitted that after

the migration of the petitioner, during enquiry it was found

that the land under Khasra No.2682/2563/885 had been

re-sold by the erstwhile owners. It is submitted that land

measuring 01 kanal 10 marlas under Khasra

No.2682/2563/885 was sold by the erstwhile owners to

Mohammad Amin and another portion of land measuring

10 marlas was sold by Ismail S/o Mohammad Malla out of

the same Khasra Number. Another legal heir of Mohammad

Malla namely Abdul Rashid sold 01 kanal 15 marlas of land

in the same Khasra number whereas one Mst. Jani sold 01

kanal 15 marlas in the same Khasra number.

4. On a complaint made by the petitioner before the

District Magistrate, Budgam, an enquiry was initiated

under the Act of 1997 and on the basis of the report of the

Patwari and Tehsildar concerned, it was found that the land

purchased by the petitioner to the extent of 03 kanals under

Khasra No.2682/2563/885 was re-sold to different persons

by the erstwhile owners. The District Magistrate, Budgam

thereafter proceeded to pass order No.21/SQ dated

05.05.2007, whereby, while exercising powers under

Section 4 of the Act of 1997, the Tehsildar, Budgam, was

directed to attach 03 kanals of land out of Khasra No.694,

884 and 745 belonging to the re-sellers Abdul Rashid Malla

and Mst. Jani in village Karewa Damodhar and take

possession of the same.

5. The aforesaid order of the District Magistrate,

Budgam, came to be challenged by private respondents

No.3 to 11 by way of an appeal before the Financial

Commissioner, Kashmir, Srinagar. The Appellate Authority

allowed the appeal and passed the impugned order whereby

order of the District Magistrate, Budgam, was set aside and

he was directed to hold a de novo enquiry into the matter

and pass appropriate orders under the provisions of the Act

of 1997.

6. The petitioner has challenged the impugned order

passed by the Appellate Authority on the grounds that the

land that was re-sold by the erstwhile owners was joint and

unpartitioned property, as such, the District Magistrate

was well within his jurisdiction to attach the land which,

though not falling in the same Khasra numbers, was part

of the joint khewat. It has been further contended that in

terms of the provisions of the Act of 1997, the District

Magistrate was well within his powers to protect the rights

and interests of the petitioner who is a migrant and to pass

any order that was necessary for carrying out the purpose

of the Act of 1997.

7. I have heard learned counsel for the parties and

perused the material on file.

8. The case of the petitioner, as is clear from the

pleadings, is that he had purchased 03 kanals of land

under Khasra No.2682/2563/885 Khewat No.485 at

Village Karewa Damodhar. The mutation in his favour could

not be attested as he had to migrate from the Kashmir

Valley and in the meanwhile, the erstwhile owners of the

land re-sold the same. The petitioner through his attorney

approached the District Magistrate, Budgam, the

competent authority under the Act of 1997 for preservation

and protection of the immovable migrant property. The

District Magistrate instead of attaching and taking into

custody the land under Khasra No.2682/2563/885 that

had been purchased by the petitioner, proceeded to attach

the land belonging to the private respondents in different

Khasra numbers, though in the same Khewat. The

contention of the petitioner is that the land comprised in

Khewat No.485 is joint and unpartitioned property of its

erstwhile owners, therefore, the District Magistrate was

right in attaching the property belonging to the erstwhile

owners out of the joint khewat.

9. If we have a look at the sale deeds vide which the

petitioner has purchased the land in Khasra No.2682/

2563/885 in Khewat No.485, the dimensions of the land in

question have been clearly mentioned therein. There are

specific covenants in both the sale deeds which delineate

and identify the land which is subject matter of these sale

deeds. The District Magistrate instead of identifying the

land that was subject matter of the sale deeds in question,

has proceeded to attach the land belonging to the erstwhile

owners in different Khasra numbers.

10. Learned counsel for the petitioner while placing

reliance upon the judgment of this Court in Mohd. Rafiq

and Ors. Vs. Ram Lal and Ors, SLJ 1988 J&K 1, according

to which a co-owner has no right to possess a particular

Khasra number or a particular portion of joint land unless

the land is partitioned and that portion falls to his share,

contended that the description of the land given in the sale

deeds is immaterial as the land in Khewat No.485 was joint

and unpartitioned.

11. The ratio laid down by this Court in the aforesaid

judgment is not applicable to the facts of the instant case

for the reason that it has been nowhere stated by the

District Magistrate, Budgam, in his order dated 05.05.2007

that the land in Khewat No.485 was joint and

unpartitioned. This contention has been raised by the

petitioner for the first time in this writ petition. There is no

finding of the District Magistrate, Budgam, in his order

dated 05.05.2007 that the land in Khewat No.485 is joint

and unpartitioned. In the presence of definite dimensions

and specifications of the land purchased by the petitioner

as given in the sale deeds and in the presence of covenants

in the sale deeds that the erstwhile owners were in

possession of the said land as absolute owners, there was

no material before the District Magistrate to presume that

the land in question was joint and unpartitioned. In any

case, no enquiry in this regard has been made by the

District Magistrate.

12. The land that has been attached by the District

Magistrate vide his order dated 05.05.2007 is, admittedly,

not the land that was purchased by the petitioner who is a

migrant. The power to protect and preserve the property

vested with the District Magistrate in terms of Section 4 of

the Act of 1997 is with respect to the immovable property

belonging to the migrants. Admittedly, the land which has

been attached by the District Magistrate does not belong to

the petitioner who is a migrant. Further the possession of

the land owners of the said land cannot be termed as

'unauthorised". Therefore, the action of the District

Magistrate in attaching the property, which does not belong

to a migrant, is beyond his jurisdiction and, as such, not

sustainable in law.

13. The learned Financial Commissioner taking note of

the aforesaid legal position has rightly set aside the order

of the District Magistrate and remanded the case for de novo

enquiry into the matter and to pass appropriate orders

under the Act of 1997. The said order is perfectly in

accordance with law and does not call for any interference

by this Court.

14. For the foregoing reasons, the instant petition lacks

merit and is dismissed accordingly. Interim direction, if

any, shall cease to be in operation.

(Sanjay Dhar) Judge Srinagar, 31.10.2023 "Bhat Altaf, PS"

                   Whether the order is speaking:      Yes/No
                   Whether the order is reportable:    Yes/No