Jammu & Kashmir High Court – Srinagar Bench
Muhammad Akbar Bhat And Another vs J&K Special Tribunal And Others on 18 February, 2025
Author: Rahul Bharti
Bench: Rahul Bharti
Sr. No. 04
Regular List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 2244/2015
Muhammad Akbar Bhat and Another ...Petitioner(s)/appellant(s)
Through: Mr. G.A. Lone, Advocate with
Mr. Mujeeb Andrabi, Advocate
Vs.
J&K Special Tribunal and others ...Respondent(s)
Through: Mr. Satinder Singh, AAG
Mr. Aftab Ahmad, Advocate for 4 to 22
CORAM:
HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
18.02.2025
1. The two petitioners, namely, Mohammad Akbar Bhat
and Mansoor Ahmad Bhat, along with late Ali Bhat, are real
brothers being sons of Mehda Bhat.
2. All three above named persons are said to have
succeeded in respective share to the estate of their father Mehda
Bhat so as to become owner in their own right of the estate
inherited and acquired individually by them.
3. With respect to the estate of their brother Ali Bhat, the
operation of Agrarian Reforms Act, 1976 is purported to have
taken effect in the form of attestation of mutation No. 352 dated
30.07.1982 under section 4 and mutation No. 407 dated 05.01.1989
under section 8 of the Agrarian Reforms Act, 1976 qua the land
Arif Hameed
measuring 2.9 kanal comprising Survey No. 403/26 of mauza
I attest to the accuracy and
authenticity of this document
10.03.2025
1 OWP No. 2244/2015
Nullay Poshwari district Shopian, thereby purportedly introducing
and inducting two persons namely Mohd Ramzan (Ramzan Dar)
and Ghulam Qadir (Qadir Dar), both sons of Mohd Dar, first as
prospective and then new owners.
4. Said two mutations came to be challenged by the two
petitioners in appeal under section 21 of the Agrarian Reforms Act,
1976 before the appellate authority of the Additional Deputy
Commissioner (Commissioner Agrarian Reforms), Shopain, by
instituting two appeals on File Nos. 279/ADC and 279/1/ADC of
2001.
5. In their said two appeals, the two petitioners, as being
the appellants, came to name three persons as respondents, namely
Mohd Ramzan, Ghulam Qadir and Ali Bhat, the petitioners’
brother.
6. During the pendency of said appeal, all said three
respondents, namely Mohd Ramzan, Ghulam Qadir and Ali Bhat,
came to expire necessitating the petitioners, as being the appellants,
to come forward with individual applications for bringing on
record the legal representatives of the three deceased respondents
to carry forward the adjudication of said two appeals to logical end.
7. The applications so filed by the petitioners with respect
to bringing on record the legal representatives of two deceased
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
2 OWP No. 2244/2015
respondents namely Mohd Ramzan and Ghulam Qadir came to be
allowed by the appellate authority of the Additional Deputy
Commissioner (Commissioner Agrarian Reforms) Shopain, but
insofar as the application for bringing on record the legal
representatives of the deceased respondent No. 3-Ali Bhat is
concerned, the same came to land in troubled waters as the said
application presented on 22.07.2008 was held to be time barred by
reference to the date of death of Ali Bhat who had demised on
27.12.2005.
8. The appellate authority of the Additional Deputy
Commissioner (Commissioner Agrarian Reforms) Shopain held
that the filing of application by the petitioners, as being the
appellants, for bringing on record the legal representatives of
respondent No. 3-Ali Bhat was after a gap of two years and eight
months as against the prescribed period of six months for bringing
on record the legal representatives of a deceased respondent in an
appeal and, as such, held the petitioners’ appeals in entirety having
abated and, therefore, dismissed the two appeals filed by the
petitioners/appellants and that is how institution of present writ
petition came to take place to question the non-suiting of the
petitioners in their said two appeals.
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
3 OWP No. 2244/2015
9. Under the Agrarian Reforms Act, 1976, the
adjudicatory jurisdiction is in terms of section 21 providing for
appeals and revisions.
10. Section 22 provides limitation period for appeals. In
terms of sub section (2) of section 22, the provisions of Jammu and
Kashmir Limitation Act, Svt. 1995 (1928 A.D) are made applicable
to appeals under the Agrarian Reforms Act, 1976.
11. Thus, by operation of section 22 (2) of the Agrarian
Reforms Act, 1976, First Schedule entries of the Limitation Act,
Svt. 1995, insofar as relevant to appeals, are also applicable with
respect to the appeals under the Agrarian Reforms Act, 1976.
12. Entry 177 of 3rd Division of First Schedule of the
Limitation Act, Svt. 1995 provides for the legal representatives of a
deceased respondent or a deceased defendant to be made as a party
within a period of six months from the date of death of respondent
or defendant.
13. The concept of legal representatives under the J&K
Code of Civil Procedure Svt., 1977 (now the Code of Civil
Procedure, 1908,) is provided in its under Order XXII (22) which
deals with death, marriage and insolvency of parties in relation to a
civil suit.
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
4 OWP No. 2244/2015
14. Order XXII rule 11 CPC provides for the application of
the entire said Order from rule 1 to 10 to the appeals as well,
meaning thereby that death, marriage and insolvency of parties in
an appeal under CPC is also to be governed by the mandate of
Order XXII.
15. Section 20 of the Agrarian Reforms Act, 1976 provides
for special powers of the revenue officers/appellant/revisional
authorities vested with jurisdiction under the Agrarian Reforms
Act, 1976 to have all the powers of a civil court while trying a civil
suit under the Code of Civil Procedure Svt. 1977 in respect of the
enlisted matters. Section 20(d) provides for any other matter which
may be prescribed.
16. In terms of the J&K Agrarian Reforms Rules, 1977,
rule 48 provides that the provisions of the Code of Civil Procedure
Svt. 1977 relating to appeals from original decrees shall apply
mutatis mutandis to all appeals under the Agrarian Reforms Act,
1976 meaning thereby that Order XXII Rule 11 of the J&K Code
of Civil Procedure Svt., 1977 is also applicable with respect to an
appeal under the Agrarian Reforms Act, 1976 to cater to the
situation of death, marriage and insolvency of parties to an appeal
be it appellant/s or the respondent/s.
17. Order XXII Rule 10 (A) CPC came to be incorporated
by virtue of an amendment w.e.f 1.02.1977 placing a duty upon
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
5 OWP No. 2244/2015
onus an advocate of a party to lis apprise the court seized of the lis
about the death of the party being represented by the reporting
counsel.
18. There is no denial to the required position of law that in
the present case, the petitioners, as being the appellants, were
supposed to have filed an application for bringing on record the
legal representatives of the deceased respondent No. 3-Ali Bhat
within a period of six months from the date of death of Ali Bhat.
There is also no doubt with respect to the fact that Order XXII CPC
in its entirety in the context of appeals under CPC is also applicable
with respect to an appeal under the Agrarian Reforms Act, 1976.
19. However, Order XXII CPC has different shades of
contingencies relatable to a death, be it plaintiff/s or appellant/s,
defendant/s or respondent/s.
20. Order XXII Rule 2 CPC is in the context of number of
plaintiffs or defendants in a civil suit, correspondingly meaning
number of appellants and respondents in an appeal, providing for
contingency that in case right to sue survives against the surviving
defendant/s, then in the event of one of the defendants the court is
to cause an entry to that effect to be made on the record for
enabling the continuation of the suit against the surviving
defendant/s.
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
6 OWP No. 2244/2015
21. It is only in the event of a right to sue not surviving
against the surviving defendant/s or respondent/s, then only
bringing on record legal representative/s of a given deceased
defendant/respondent becomes indispensable for the
plaintiff/appellant for continuation of the suit/appeal otherwise the
suit/appeal is meant to abate but that too not in its entirety but qua
the deceased defendant/respondent as the facts and circumstances
of a particular case may warrant.
22. Order XXII Rule 1 CPC in clear terms provides that a
death of a plaintiff or defendant not to cause abatement of a suit if
the right to suit survives.
23. Even in those scenarios where on account of death of
defendant/respondent an abatement takes place or is meant to take
place, Order XXII CPC still provides a scope for a
plaintiff/appellant to salvage the situation by seeking setting aside
of the abatement as provided in terms of Order XXII Rule 4 CPC.
24. The essence of Order XXII CPC is to ensure that a lis
does not suffer frustration in the event of abatement taking place
without any act of omission or commission on the part of a plaintiff
or appellant, as the case may be.
25. In the present case, the appellate authority of
Additional Deputy Commissioner (Commissioner Agrarian
Arif Hameed
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authenticity of this document
10.03.2025
7 OWP No. 2244/2015
Reforms), Shopian by a mechanical stroke of pen came to hold the
appeal filed by the petitioners abating in its entirety for delayed
filing of the application for bringing on record the legal
representatives of the deceased respondent No. 3-Ali Bhat and,
thus, by virtue of an order dated 13.04.2011 dismissed the appeal
leaving the petitioners none suited in their cause even against the
two surviving respondents.
26. Against the said order dated 13.04.2011, the petitioners
preferred a revision petition before the Jammu and Kashmir
Special Tribunal in terms of the Section 21 of the Agrarian
Reforms Act, 1976 so as to salvage their appeal but the Jammu
and Kashmir Special Tribunal also followed the footsteps of the
appellate authority of the Additional Deputy Commissioner
(Commissioner Agrarian Reforms), Shopian and dismissed the
revision petition of the petitioners holding that the appeal had
abated for not bringing on record the legal representatives of the
deceased respondent No. 3-Ali Bhat within the prescribed period.
27. A bare perusal of the order dated 13.04.2011 of the
appellate authority of the Additional Deputy Commissioner
(Commissioner Agrarian Reforms), Shopian would show that the
appellate authority skipped due application of mind in the context
of Order XXII CPC, firstly on the count whether the right to
sue/appeal by reference to death of respondent No. 3 Ali Bhat was
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
8 OWP No. 2244/2015
surviving qua two surviving respondents or not and secondly, the
appellate authority also missed out in stating as to how time was set
running out against the appellants, the petitioners herein, in the
matter of making an application for bringing on record the legal
representatives within six months from the date of death of
respondent No. 3-Ali Bhat when in the order dated 13.04.2011 it is
nowhere found mentioned that the fact of demise of the respondent
No. 3- Ali Bhat was brought on record from the two surviving
respondents’ end or for that matter from the counsel representing
the deceased respondent No. 3-Ali Bhat which is an onus in terms
28. In the light of these facts and circumstances, this Court
reckons that the two authorities i.e., the Appellate Authority of the
Additional Deputy Commissioner (Commissioner Agrarian
Reforms), Shopian and the Revisional Authority of Jammu and
Kashmir Special Tribunal fell in manifest error of judgment in non-
suiting the petitioners in their appeals.
29. This Court came to summon the record of the appellate
authority of the Additional Deputy Commissioner (Commissioner
Agrarian Reforms), Shopian only to be reported back that the said
record of appeal has been gutted in fire.
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
9 OWP No. 2244/2015
30. A copy of the memo of appeal has, however, been
brought on record by the contesting respondents and that would
suffice the purpose of reconstructing the appeal so filed.
31. Insofar as the challenged mutations are concerned, the
same can be procured afresh from the attesting officer concerned.
32. The present writ petition is, thus, allowed. The order
dated 13.04.2011 of the Additional Deputy Commissioner
(Commissioner Agrarian Reforms), Shopian, read with order dated
20.10.2025 of J&K Special Tribunal are set aside.
33. The application filed by the petitioners in their appeal
before the court of Additional Deputy Commissioner
(Commissioner Agrarian Reforms) Shopian, for seeking
impleadment of legal representatives of the deceased respondent
No. 3-Ali Bhat is allowed. Legal representatives named in the said
application to be brought on record notified for appearance in the
appeal before the Additional Deputy Commissioner (Commissioner
Agrarian Reforms) Shopian.
34. Parties to appear before the Appellate Authority on
21.04.2025.
(RAHUL BHARTI)
JUDGE
SRINAGAR
18.02.2025
ARIF
Arif Hameed
I attest to the accuracy and
authenticity of this document
10.03.2025
10 OWP No. 2244/2015
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