Jammu & Kashmir High Court

Gulaba Chand And Another vs Ut Of J&K And Others on 20 February, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT JAMMU
Reserved on:   04.02.2025
Pronounced on: 20.02.2025

WP(C) No. 1755/2024
CM No. 4296/2024

Gulaba Chand and another                         .....Appellant(s)/Petitioner(s)
                       Through: Mr. Ankur Sharma, Advocate.
                Vs
UT of J&K and others                                        ..... Respondent(s)
                       Through: Ms. Monika Kohli, Sr. AAG with
                                Ms. Priyanka Bhat, Advocate for R-1 to 3
                                Mr. G. S. Thakur, Advocate for R-4

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
                                JUDGMENT

1. One Sh. Anantu was the owner of 26 Kanal 2 Marlas of land (13 Kanal 12

Marlas comprising Khasra No. 584 min and 12 Kanal 10 Marlas

comprising Khasra No. 619/585 min) situated at village Dandote, Tehsil

and District Udhampur. During his lifetime, he had executed one will on

20.02.1978, thereby transferring the land measuring 26 Kanal 2 Marlas in

favour of Pyar Chand. Anantu died in the year 1985 leaving behind his

wife, namely-Mst. Kesri and two daughters, namely-Shankari and Shanti,

as his legal heirs. Pyar Chand executed a lease dated 14.10.1992 in respect

of the above-mentioned land in favour of father of the petitioners, namely,

Paras Ram. One daughter of deceased Anantu, namely, Mst. Shanti i.e.

respondent No.4 filed a suit thereby challenging the will deed dated

20.02.1978 and also the lease deed dated 14.10.1992. Learned Munsiff,

Udhampur vide its ex-parte judgment dated 31.07.1995 decreed the suit

and declared the will deed as well as the consequent lease deed, as null

and void, but did not grant the consequential relief of eviction of Paras

Ram sought by the respondent No. 4. Thereafter, the respondent No. 4

filed a suit for restoration of possession before the Assistant Revenue

Commissioner (Assistant Settlement Officer), Udhampur under Section

27/19(3)(d) of Agrarian Reforms Act, for the land mentioned above and

vide order dated 12.07.2016, the suit was dismissed with a direction that

the land is liable to be escheated back to the State and the petitioners were

allowed to remain in possession of the land. Being aggrieved of the order

dated 12.07.2016, the respondent No. 4 filed an appeal before the

Additional Deputy Commissioner, Udhampur and vide order dated

28.03.2018, the appeal was accepted and the order passed by the Assistant

Revenue Commissioner (Assistant Settlement Officer) Udhampur was set

aside. It was held that the respondent No. 4 was entitled for restoration of

the land to the extent of her inherited share in the said property. Being

aggrieved of the order dated 28.03.2018 passed by the Additional Deputy

Commissioner, Udhampur, the petitioners filed a revision petition before

the J&K Special Tribunal, Jammu, however, the same was dismissed vide

order dated 01.05.2024.

2. The petitioners have now approached this Court through the medium of

instant petition and have sought quashing of order dated 01.05.2024

passed by the J&K Special Tribunal, Jammu and order dated 28.03.2018

passed by the Additional Deputy Commissioner, Udhampur on the

following grounds:

i. That the Revenue Commissioner (Assistant Settlement Officer),

Udhampur had rightly passed the order dated 12.07.2016 by

virtue of which the suit for restoration of the subject land was

dismissed with the direction that the land is liable to be

escheated to the State and the petitioners were allowed to

remain in possession thereof.

ii. That the order impugned is not based on true position of law

because Anantu being the Absolute Owner (under Section 8) of

the Agrarian Reforms Act, 1976 was not competent to sublet the

property by way of will and in this view of legal position, the

order impugned herein is incorrect.

iii. That as per Section 28(A) of Agrarian Reforms Act, read with

Section 15 and Rule 57 of the Agrarian Reforms Rules, 1977,

the subject land should have been escheated to the State and

thereafter the provisions of Section 15 of the Act were to be

applied and thereafter the petitioners should have been

considered for allotment as per the other provisions of Agrarian

Reforms Rules.

3. The contesting respondent i.e. respondent No. 4 has objected to the

petition by stating the factual aspects of the case. It is stated that a

mutation dated 16.10.1986 came to be attested in favour of Pyar Chand on

the basis of alleged will executed by late Anantu in his favour. The

mutation was subsequently set aside by the Additional Deputy

Commissioner and the matter was remanded to Tehsildar, Udhampur for

de-novo enquiry, who accordingly attested the mutation of inheritance in

favour of his legal heirs. Pyar Chand and Shankari Devi under the garb of

the said mutation disposed of 52 Kanals of land out of 60 Kanals of land

in favour of the petitioners on the basis of Pattanama and handed over the

possession to them in order to defeat the rights of the answering

respondent being the successor of late Anantu. It is further stated that the

respondent No. 4 challenged the will in respect of the land measuring 26

Kanal 7 Marlas and also sought eviction of the petitioners, but the relief of

eviction was refused to her. Thereafter, she filed a suit. It is further stated

that admittedly, the answering respondent is the daughter of Anantu and is

entitled to inherit 2/3rd share out of the total estate, because her mother late

Kesri had executed a will in her favour and accordingly mutation No. 560

dated 15.02.2002 was attested in favour of the answering respondent. It is

stated that the petitioners in fact are unauthorised occupants of the land

owned by the answering respondent, as the lease deed/Pattanama was

executed by the person who was not competent to do so.

4. Mr. Ankur Sharma, learned counsel for the petitioners has placed reliance

upon the judgment passed by the Coordinate Bench of this Court in case

titled as Mst. Thru vs. Rasal Singh and others decided on 17.10.1996 in

order to submit that the will could have been executed by late Anantu in

favour of Pyar Chand and as such, the petitioners cannot be terms as

trespassers, because they were inducted into the possession of the land by

the beneficiary of the will. Alternatively, he has argued that even if the

will is held to be bad in law, the petitioners cannot be ordered to be

evicted till the land is escheated to the State and is distributed in terms of

Section 15 of the Agrarian Reforms Act.

5. Mr. G. S. Thakur, learned counsel for the respondent No. 4 in turn has

argued that the petitioners have no locus to challenge the order passed by

the Additional Deputy Commissioner, Udhampur, once the will executed

in favour of Pyar Chand and the lease deed executed by Pyar Chand in

favour of father of the petitioners were declared as null and void. He has

further submitted that the judgment and decree of the civil court has

attained finality as the petitioners never challenged the judgment and

decree passed by the learned Munsiff, Udhampur.

6. Heard learned counsel for the parties and perused the record.

7. There is no denial of the fact that both will and the lease deed have been

declared as null and void by the civil court. The petitioners claim to be in

possession of the land measuring 26 Kanal 2 Marlas pursuant to the lease

deed, which has already been declared as null and void. Once the same has

been declared as null and void, the possession of the petitioners over the

land becomes unauthorised.

8. This is also the finding of the appellate forum, which has been upheld by

the J&K Special Tribunal, Jammu. Further, the learned Tribunal has taken

note of the fact that the respondent-Shanti would inherit 1/3rd estate of her

father after his demise and she has also inherited 1/3 rd share of her mother,

as she had executed a will in favour of Mst. Shanti, in respect of which

mutation No. 560 dated 15.02.2002 has already been attested. By taking

these facts into consideration, the learned Tribunal has held that the

respondent 4 herein would inherit 2/3rd share in the estate left behind by

late Anantu and rest 1/3rd share would be inherited by Shankri. The views

taken by the appellate forum as well as by the learned Special Tribunal are

unexceptionable and are in accordance with the law.

9. Though it has been contended by Mr. Ankur Sharma, learned counsel for

the petitioners by placing reliance upon the judgment passed by this Court

in case titled as Mst. Thru vs. Rasal Singh and others that Anantu could

have executed the will, however, the argument which has been raised

before this Court is contrary to the pleadings made before the Appellate

Authority and before the J&K Special Tribunal Jammu. This argument is

even contrary to the pleadings made in grounds (b) and (c) of the writ

petition, which are extracted as under:

"b) That the order impugned herein is not based on true position of law because Anantu being the absolute owner under Section 8 of Agrarian Reforms Act, 1976 was not competent to sublet the property by way of will and in this view of legal position of order impugned herein is incorrect.

c) That violation of the provisions of Agrarian Reforms Act is apparent on the face of record because Anantu was not competent to execute a will and the law of inheritance has no application in the instant case."

10. This Court cannot lose sight of the fact that will deed executed by Anantu

and the lease deed executed by Pyar Chand in favour of father of the

petitioners have been declared as null and void. A litigant cannot change

his stand at different stages of the litigation as per his convenience and for

his benefit. This argument put forth by the petitioners is in fact a last ditch

effort on their part to protect their illegal and unauthorised possession, as

such, this argument cannot come to the rescue of the petitioners.

11. This Court in case titled "Anoop Singh and anr. vs. State of J&K and

others" bearing OWP No.1146/2015 decided on 04.04.2024, has observed

as under: -

21. The Hon‟ble Supreme Court of India in „Suzuki ParasrampuriaSuitings (P) Ltd. v. Official Liquidator‟, (2018) 10 SCC 707, while reiterating its earlier views in Amar Singh vs. Union of India [(2011) 7 SCC 69], has held as under:

"12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands............."

13. A similar view was taken in Joint Action Committee of Air Line Pilots' Assn. of India v. DGCA [(2011) 5 SCC 435], observing:

"12. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity...... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."

22) The extraordinary remedy of writ of certiorari granted under Article 226 of the constitution of India is a discretionary remedy and cannot be issued on the mere asking of the petitioner. When the petitioner approaches the court with distorted facts and unclean hands, the court can refuse to exercise its jurisdiction under Article 226 of the constitution of India. The conduct of the litigant should be fair and not aimed at taking undue advantage by changing his stands at his own sweet will and to his own convenience. The court can refuse to exercise its discretion to issue writ of certiorari in favour of the petitioner, when he vacillates his stands or oscillates between two contradictory stands, just to ensure success in his endeavor to get the relief from the court.

(emphasis added)

12. The other contention raised by the petitioners is that the petitioners were

required to remain in possession of the land till the land was distributed in

terms of Section 15 of the Agrarian Reforms Act. Though, this ground

appears to be attractive, but has been taken note of only for the purpose of

rejection only because once the civil court has declared the will deed and

the consequent lease deed as null and void, possession of the petitioners

has become unauthorised and it is not that the respondent No. 4 was

declared as owner of land under Section 8 of the Agrarian Reforms Act,

who had transferred the land in favour of some other person. The

respondent No.4 has only inherited the rights of ownership after the

demise of her father and pursuant to will executed by her mother in