Smt. Amrit Kour Age 73 Years vs The Union Territory Of Jammu And on 6 March, 2025

Jammu & Kashmir High Court

Smt. Amrit Kour Age 73 Years vs The Union Territory Of Jammu And on 6 March, 2025

Author: Rajnesh Oswal

Bench: Rajnesh Oswal

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                 AT JAMMU
                                                   Reserved on:   27.02.2025
                                                   Pronounced on: 06.03.2025

WP(C) No. 1841/2020
CM No. 6622/2020
c/w
OWP No. 1799/2017
CM No. 2079/2020



1.Smt. Amrit Kour age 73 years
W/o Late S. Surinder Singh              .....Appellant(s)/Petitioner(s)
2. Satnam Singh age 56 years
3. Kamaljeet Singh age 51 years
4. Paramjeet Singh age 33 years
5. Rao Virander Singh age 53 years,
all sons of Late S. Surinder Singh, all
residents of Village Jagatpur, Tehsil
and District Kathua.


                      Through: Mr. S. M. Chowdhary, Advocate with
                               Mr. Mursaleen, Advocate
                 vs
1. The Union Territory of Jammu and                         ..... Respondent(s)
KashmirThrough Commissioner/Secretary,
Department of Revenue Civil Secretariat
Jammu.
2. The Divisional Commissioner (with the
powers of Deputy Custodian General and
Financial Commissioner (Rev.) J&K,
Jammu.
3. The Deputy Commissioner, Kathua.
4. The Tehsildar Kathua.
5. Jagjit Singh,
6. Jashpal Singh, both sons of late Puran
Singh.
7. Darshan Kour Wd/o late Surjit Singh,
8. Sarbjeet Singh,
9. Harpreet Singh, both sons of late Surjit
Singh, all residents of Village Jagatpur,
Tehsil and District Kathua.
                                     2                    WP(C) No. 1841/2020
                                                         c/w
                                                         OWP No. 1799/2017




10. Smt. Jasbinder Kour D/o Late Surjit
Singh R/o Sujanpur, Tehsil and District
Kathua.
                      Through: Mrs. Monika Kohli, Sr. AAG for R-1 to 4
                               Mr. Abhishek Wazir, Advocate for R-5 to 10

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

1. During the pendency of the writ petition bearing OWP No. 1799/2017,

wherein the order dated 13.10.2017 passed by the respondent No.2

directing the respondent No.4 to conduct de novo enquiry was impugned,

the respondent No. 4 conducted de novo enquiry and passed the order

dated 18.08.2020, which has been impugned by the petitioners in WP(C)

No. 1841/2020. Both these writ petitions are being disposed of by a

common judgment.

2. Brief facts necessary for disposal of these writ petitions are that the

respondent Nos. 6 to 10 had filed a revision petition against mutation No.

218 dated 22.09.1967, by virtue of which, land measuring 14 Kanal 18

Marlas comprising Survey No. 10/307 and land measuring 7 Kanal 1

Marlas comprising Survey No. 11/307 (total measuring 21 Kanal 19

marlas) situated at Village Jagatpur, Tehsil and District Kathua was

mutated in favour of predecessor-in-interest of the petitioners, namely

Surinder Singh S/o Bir Singh and Surjit Singh (now deceased), Jashpal

Singh & Jagjit Singh Sons of Puran Singh in equal proportion i.e. ½

share. During pendency of revision petition, Surinder Singh died and he

was substituted by the petitioners as his legal representatives. The revision
3 WP(C) No. 1841/2020
c/w
OWP No. 1799/2017

was allowed by the Divisional Commissioner vide order dated 13.10.2017.

It is stated that the forefathers of the petitioners were non camp refugees,

and they occupied the State land measuring 14 Kanal 18 Marlas

comprising Survey No. 10/307 and land measuring 7 Kanal 1 Marlas

comprising Survey No. 11/307 (total measuring 21 Kanal 19 marlas)

situated at Village Jagatpur, Tehsil and District Kathua. The

abovementioned land was allotted to the forefather of the parties under

Government order No. 578-C of 1954. It is also stated that though the land

of the custodian measuring 14 Kanals comprising survey No. 164 was

allotted to them, but its possession was never given to the forefathers of

the parties. The total land measuring 21 Kanals remained in possession of

forefathers of the parties. It is further stated that father of the respondent

Nos. 5&6 namely-Puran Singh died prior to attestation of mutation No.

218 on 22.09.1967. The husband of respondent No. 7 and father of

respondent Nos. 8 to 10 died in the year 2002, and respondent Nos. 7 to 10

inherited the estate of the deceased Surjit Singh and mutation of

inheritance was attested on 22.05.2002. The predecessor-in-interest of the

petitioners on 18.05.2013 filed an application for partition of above-

mentioned land before respondent No. 4 and respondent No. 4 vide its

order dated 15.01.2014, allowed the application of predecessor-in-interest

of the petitioners and directed the private respondents to handover the

possession of excess land occupied by them to the predecessor-in-interest

of the petitioners. After an order of partition was passed by the respondent

No. 4, the private respondents on 12.05.2014 filed a revision petition
4 WP(C) No. 1841/2020
c/w
OWP No. 1799/2017

against the mutation No. 218 after 46 years against the predecessor-in-

interest of the petitioners before respondent No. 2 and the respondent No.

2 vide order dated 13.10.2017, allowed the revision by setting aside the

mutation No. 218 and remanded the matter to respondent No. 4 for

conducting de novo enquiry.

3. The petitioners have assailed the order dated 13.10.2017 (for short „the

impugned order‟) on the following grounds:-

(a) That perusal of mutation No. 218 dated 22.09.1967 reveals that the

husband of respondent No. 7 and father of respondent Nos. 8 to

10, namely, Surjit Singh S/o Puran Singh, elder brother of

respondent Nos. 5 and 6 was present at the time of attestation of

mutation.

(b) That the respondent Nos. 5 to 10 had knowledge of the attestation

of mutation in the year 1967 and after the demise of Surjit Singh in

the year 2002, mutation of inheritance bearing No. 415 in respect

of his share came to be attested in favour of respondent Nos. 7 to

10 on the basis of mutation No. 218.

(c) That the respondent No. 2 has not gone through the impugned

mutation properly and he has overlooked the presence of Surjit

Singh at the time of attestation of mutation and has condoned the

delay of more than 46 years without assigning any reason.

(d) That the respondent No. 2 has not appreciated the questions of law

involved in the matter in right perspective and has wrongly

remanded the case to respondent No. 4 for de novo enquiry.
5 WP(C) No. 1841/2020

c/w
OWP No. 1799/2017

4. Respondent Nos. 5 to 10 have filed the response stating therein that the

impugned order is a remand order, whereby respondent No. 2 has allowed

the revision petition thereby setting aside the mutation No. 218 and

directing for passing fresh order after hearing all the interested parties. It is

stated that Bir Singh of Village and Tehsil Palandri now in POK was

survived by 5 sons, namely, Puran Singh, Surinder Singh (now deceased),

Bhagwan Singh, Dulla Singh and Jaspal Singh. Jaspal Singh died before

migration to India. All four sons of Bir Singh, namely, Bhagwan Singh,

Puran Singh, Dulla Singh and Surinder Singh migrated to India and all the

four brothers got Form „A‟ issued and the land was allotted to them

separately. In the Form „A‟ submitted by Puran Singh, the strength of the

family members was five i.e. self, Harbas Kour (wife), Jagjit Singh (son),

Surjit Singh (son) and Jaspal Singh (son). They were allotted 21 Kanal 19

Marlas comprising Survey No. 10/307 (14 Kanal 18 Marla) and Survey

No. 11/307 (7 Kanal 1 Marla) situated at Village Jagatpur, Tehsil and

District Kathua in terms of Government order No. 578-C of 1954. The

said land remained in cultivation possession of the family headed by Puran

Singh. Surinder Singh, the younger brother of Puran Singh i.e. the

predecessor-in-interest of the petitioners while filling his Form „A‟

fraudulently without the knowledge of Puran Singh and his family

members, mentioned names of Puran Singh and members of family of

Puran Singh i.e. Surinder Singh (self) and rest of the names were picked

up from Form „A‟ of the family of Puran Singh and got the land

comprising Survey No. 164 measuring 14 Kanals allotted to his family
6 WP(C) No. 1841/2020
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OWP No. 1799/2017

headed by himself. Surinder Singh obtained the possession of the land

measuring 14 Kanals in Survey No. 164. Puran Singh died prior to

22.09.1967 and Surinder Singh managed the attestation of mutation No.

218 which conferred ownership rights to the extent of one-half share in

favour of Surinder Singh and the other half in the name of family

members of Puran Singh at the back of the answering respondents without

summons/notices, having been served upon the respondents. Respondent

Nos. 5 to 10 have admitted that after the demise of Surjit Singh, mutation

of inheritance came to be attested in favour of respondent Nos. 7 to 10. It

is further stated that Surinder Singh i.e. predecessor-in-interest of the

petitioners, filed an application for partition of the land comprising Survey

No. 10/307 and 11/307 which was resisted by the answering respondents.

One of the answering respondents submitted that an application under

Right to Information Act for issuance of certified copy of the order alleged

to have been passed by the Tehsildar on the application filed by Surinder

Singh for partition of land and as per information available with the

official respondents and mentioned in the reply dated 12.08.2015, the

application for partition has not been allowed. The answering respondents

when came to know about the attestation of mutation No. 218, filed the

revision petition before respondent No. 2 and prior to that, they were not

aware about the attestation of mutation as they were never summoned by

mutating officer at the time of attestation of mutation. It is also stated that

the Govt. of India had disbursed the cash amount to displaced families.

Surinder Singh S/o Bir Singh showing himself as separate family having a
7 WP(C) No. 1841/2020
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OWP No. 1799/2017

separate Form „A‟, received Rs. 25,000/- in the year 2002. Precisely, the

stand of the respondents is that the land measuring 21 Kanal and 19

Marlas was never allotted to Surinder Singh and was rather allotted to

Puran Singh but as Puran Singh came to be demised before attestation of

mutation, the predecessor in interest of the petitioners i.e. Surinder Singh,

fraudulently got the mutation No. 218 attested, thereby getting his name

incorporated in the said mutation and the said mutation was attested

without hearing the respondents.

5. Mr. S. M. Choudhary, learned counsel for the petitioners has vehemently

argued that when mutation No. 218 was attested, Surjit Singh was present

at the time of attestation of mutation, therefore, the private respondents

cannot be heard to say that the mutation was attested without affording

any opportunity of hearing to them. He has further submitted the land was

allotted to Surinder Singh and his brother Puran Singh and others jointly

on the basis of Form „A‟ issued in favour of Surinder Singh and there is no

justification for entertaining the revision after huge delay.

6. Per contra, Mr. Abhishek Wazir, learned counsel for the private

respondents has argued that a separate Form „A‟ was issued in favour of

Puran Singh and in the said form, particulars of his family members were

also mentioned and by fraud, the predecessor-in-interest of the petitioners

got the land mutated in equal share by getting his name incorporated in the

said mutation. He has further stated that while attesting mutation, due

opportunity of hearing was required to be afforded to all the interested

parties and assuming Surjit Singh was present at the time of attestation of
8 WP(C) No. 1841/2020
c/w
OWP No. 1799/2017

mutation, the other sons of Puran Singh, namely, Jaspal Singh and Jagjit

Singh were not put to notice and as such they were not present when the

mutation was attested in their favour. He has vehemently argued that the

factum of Surinder Singh having obtained the cash relief showing himself

as having separate family in the year 2002, clearly reveals that he was not

part of family of Surinder Singh.

7. Heard learned counsels for the parties and perused the record.

8. A perusal of the order impugned passed by respondent No. 2 reveals that

respondent No. 2 has observed that Puran Singh and Surinder Singh were

real brothers and displaced persons of 1947 from POK. Both of them filled

their Form „A‟ separately. As per Form „A‟ of Puran Singh, family of

Puran Singh was comprised of five members and Surinder Singh was

nowhere mentioned in Form „A‟ filled by Puran Singh. In the Form „A‟ of

Surinder Singh, the names of family members of Puran Singh have been

mentioned. Taking into consideration this discrepancy, the Divisional

Commissioner was of the opinion that the matter requires to be enquired

into, more particularly when Surinder Singh was allotted 14 Kanals of

land comprising Survey No. 164 in the same village. Respondent No. 2

while making the above mentioned observation has also come to the

conclusion that limitation in such cases where interested parties are

condemned unheard shall start from the date of knowledge and as the

impugned mutation has been attested behind the back of the respondents,

therefore, the revision petition is deemed to have been filed within the

time from the date of knowledge.

9 WP(C) No. 1841/2020

c/w
OWP No. 1799/2017

9. Mutation No. 218 though bears the signature of Surjit Singh i.e. the

predecessor-in-interest of the respondent Nos. 7 to 10 but other two sons

of Puran Singh, namely, Jagjit Singh and Jashpal Singh i.e. the respondent

Nos. 5&6 have not been shown to be present at the time of attestation of

mutation. Respondent No. 2 once has returned a finding of fact on the

basis of record that mutation was attested at the back of predecessor-in-

interest of Puran Singh notwithstanding that one of the sons of Puran

Singh was present at the time of attestation of mutation bearing No. 218, it

cannot be said there is illegality or perversity in the finding returned by

respondent No. 2 that the predecessor in interest of Puran Singh have been

condemned unheard as out of three sons of Puran Singh, two sons were

never present when the mutation was attested. Otherwise also, the matter

requires/required a fresh look as Surinder Singh had shown the family

members of Puran Singh and his family members as part of his family

members whereas Puran Singh in his Form „A‟ had mentioned his family

members. Same family members could not have been mentioned in two

different Forms „A‟. If such thing has happened, it amounts to fraud and

fraud vitiates all proceedings. It needs to be mentioned that vide order

dated 18.08.2020, the respondent No.4 has returned a finding against the

petitioners, after conducting de novo enquiry.

10. In this context, it would be apt to take note of judgment of the Coordinate

Bench of this Court in Raja Begum (Mst.) & Ors. vs J&K Special

Tribunal & Ors. JKJ ONLINE 86751, wherein it has been held as

under:

10 WP(C) No. 1841/2020

c/w
OWP No. 1799/2017

“12. From the aforesaid legal position, it is abundantly clear
that fraud vitiates all solemn acts and any instrument, deed,
judgment, decree and order obtained through fraud is a
nullity in the eye of law and such an order can be questioned
at any time, so much so it can be ignored altogether before
any court of law before it is questioned or produced in any
proceeding. Once it is proved before the court of law that the
order, instrument, decree or judgment brought before it, in any
proceeding, is an outcome of fraud, the court of law shall
forebear to endorse and perpetuate such fraud. Any transaction
which is the result of misrepresentation, fraud or deceitful
means is not protected on the ground of limitation. The
court of law is under an obligation to refuse to give effect to
such order, decree or judgment passed by any authority,
much less to endorse or acknowledge it. The Commissioner
Agrarian Reforms and the Tribunal have appreciated this aspect
in its correct perspective and have rightly set aside the mutation
under section 8 attested in favour of the petitioners without there
being any mutation qua the subject land attested under section 4
of the Act.”

(emphasis added)

11. In Commr. of Customs (Preventive) v. Aafloat Textiles (I) (P) Ltd.,

(2009) 11 SCC 18, the Hon‟ble Apex Court has held as under:

“19. As noted above, SILs were not genuine documents and
were forged. Since fraud was involved, in the eye of the law
such documents had no existence. Since the documents have
been established to be forged or fake, obviously fraud was
involved and that was sufficient to extend the period of
limitation. In view of this finding the other issues raised by
the respondent are of academic interest.”

(emphasis added)

12. This Court is conscious of the fact that though it is premature to return any

finding on the merits of the case but equally true is that this is a case,

where there are allegations of fraud and the allegations are/were required

to be enquired into detail, as two forms „A‟ filed by two brothers cannot

have the same members of family. It is the duty of the constitutional

courts to ensure that no one gets the benefit of fraudulent acts and the writ

of certiorari being a discretionary remedy can be refused, when the court
11 WP(C) No. 1841/2020
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OWP No. 1799/2017

is of the opinion that the allegations of fraud are required to be enquired in

to, to do the substantial justice between the parties.

13. The Hon‟ble Supreme Court of India in “Central Council for Research

in Ayurvedic Sciences v. Bikartan Das“, 2023 SCC OnLine SC 996 has

examined the scope of Writ of Certiorari and has observed as under:

“51. The first cardinal principle of law that governs the
exercise of extraordinary jurisdiction under Article 226 of
the Constitution, more particularly when it comes to the issue
of a writ of certiorari is that in granting such a writ, the High
Court does not exercise the powers of Appellate Tribunal. It
does not review or reweigh the evidence upon which the
determination of the inferior tribunal purports to be based. It
demolishes the order which it considers to be without
jurisdiction or palpably erroneous but does not substitute its
own views for those of the inferior tribunal. The writ of
certiorari can be issued if an error of law is apparent on the
face of the record. A writ of certiorari, being a high prerogative
writ, should not be issued on mere asking.

52. The second cardinal principle of exercise of
extraordinary jurisdiction under Article 226 of
the Constitution is that in a given case, even if some action
or order challenged in the writ petition is found to be illegal
and invalid, the High Court while exercising its
extraordinary jurisdiction thereunder can refuse to upset it
with a view to doing substantial justice between the parties.
Article 226 of the Constitution grants an extraordinary remedy,
which is essentially discretionary, although founded on legal
injury. It is perfectly open for the writ court, exercising this
flexible power to pass such orders as public interest dictates
& equity projects. The legal formulations cannot be
enforced divorced from the realities of the fact situation of
the case. While administering law, it is to be tempered with
equity and if the equitable situation demands after setting right
the legal formulations, not to take it to the logical end, the High
Court would be failing in its duty if it does not notice equitable
consideration and mould the final order in exercise of its
extraordinary jurisdiction. Any other approach would render
the High Court a normal court of appeal which it is not.”

(emphasis added)

14. In view of the above, this Court does not find any illegality on the part of

respondent No. 2 while passing the order impugned. In view of this, the
12 WP(C) No. 1841/2020
c/w
OWP No. 1799/2017

petition bearing No. OWP No. 1799/2017 is found to be misconceived, as

such, the same is dismissed.

15. In WP(C) No. 1841/2020, the petitioners have impugned the order dated

18.08.2020, passed by the respondent No.4 pursuant to the order dated

13.10.2017 passed by the respondent No.2, upheld by this Court while

deciding the connected writ petition. The order dated 18.08.2020 is

appealable, as such, the petition bearing WP(C) No. 1841/2020 is disposed

of by permitting the petitioners to avail the statutory remedy of appeal

within the period of 30 days from today. Needless to say, that if the

petitioners avail the remedy of appeal within the period mentioned above,

the period of limitation shall not come in the way of the petitioners and the

appeal shall be decided on merits. It is made clear that this Court has not

expressed any opinion on the merits of the claim of the parties and in the

event the appeal is preferred against the order dated 18.08.2020, the same

be decided on its own merits.

16. Disposed of.

(RAJNESH OSWAL)
JUDGE

Jammu
06.03.2025
Neha-II
Whether the order is speaking: Yes
Whether the order is reportable: Yes

NEHA KUMARI
2025.03.06 16:27
I attest to the accuracy and
integrity of this document