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
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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
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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
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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
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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
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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
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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
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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
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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
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