Decided on December 07,1999



- (1.) THE petitioners challenge the order -dated 7.1.97 passed by the Financial Commissioner. Jammu whereby revision against the order of the Divisional Commissioner dated 9.8.95 was allotted and order dated 3.4.91 passed on Mutation No. 125 of village Pokharni Tehsil Nowshera passed by the Assistant Commissioner(s) was set aside. The petitioners it appears claimed ownership on the basis of document of sale dated 19 har 1983 BK executed by the owners in favour of the petitioners. But the Assistant Commissioner (R) Rajouri vide order dated 20.11.77 on Mutation No. 113 held them occupancy tenants of land measuring 229 kanals 18 marlas comprising kh. no. 125, 47, 48, 48 -min, 49, 50, 53, 55, 56, 57, 58 and 58 -min situated in village Pukharni Tehsil Nowshera. This order was challenged by them in revision before the Divisional Commissioner on the plea that they were owners and not occupancy tenants as found by the Assistant Commissioner. They also pleaded that although mutation of ownership was also recorded in their favour but because of partition, record of the village is not available because this village fell in Tehsil Kotli which is now in occupation of Pakistan. The Divisional Commissioner, Jammu vide order Dated 30.11.90 while allowing the revision directed the Assistant Commissioner to hold fresh enquiry into the following issues Some vital issues arise out of it as follows: i) How the AC(R) came to the conclusion that occupancy rights had been purchased by the petitioners, when the petitioners claim that the vendors, as stated in the mutation sheet, possess ownership rights. ii) Whether there is any documentary evidence i.e. sale deed available which testify as to what title/ rights have been transferred for the chunk of land measuring 229 kanals 18 marlas. iii) In the absence of any such document, how the Assistant Commissioner (R) reached such conclusion and whether this mode of enquiry of warranted/ recognised under law. iv) ln case the petitioners have purchased the ownership rights, such position should have devolved on them. All these issues have not been dealt within the impugned order which are required to be looked into afresh.
(2.) THE Assistant Commissioner after holding enquiry passed fresh order on 3.4.91 holding that the erstwhile owners had infact transferred ownership in favour of the petitioners. He therefore, attested mutation no. 125 in favour of the petitioners. The Custodian Jammu Evacuee Property challenged this order in revision before the Divisional Commissioner which was dismissed on 9.8.95 holding it to be barred by time. This order was challenged by the Custodian in revision before the Financial Commissioner who allowed the same and set aside mutation no. 125 attested on 3.4.91 without expressing any opinion with regard to the status of the petitioners. The contention of Mr. Kotwal is that Custodian had no locus stand) to file revision against mutation order dated 3.4.91 passed on mutation no. 125 because the land has not been declared evacuee property under S. 6 of the Evacuee (Administration of Property) Act Smvt. 2006. Since the erstwhile owners of the land have not been declared evacuees therefore, argued Mr. Kotwal the property has not vested in the Custodian in the absence of which he has no right to challenge the order impugned. He further contended that the Financial Commissioner having failed to notice any illegality in the order impugned, the same could not be set aside when petitioners are admittedly in possession of the land. Since the petitioners are in possession on the basis of a document their possession has to be recognised. Since they cannot be recorded as tenant in the absence of an agreement to pay rent, their possession is either permissive or is trespassers. In either case mutation has to be attested as it is only nature of their possession and not the factum of possession which is disputed. Mutation neither creates nor extinguishes the title in the property. In Sawarni (Smt.) vs. (Smt.) Inder Kaur and Ors. (1996) 6 SCC 223) it has been held by their lordships that: "Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question..." This was reiterated in Balwant Singh and Anr. vs. Daulat Singh (dead) by Lrs. and Others (1997) 7 SCC 137, holding that : ".... We have already noticed that mutation entries do not convey or extinguish any title and those entires are relevant only for the purpose of collection of land revenue". So the mutation had been rightly attested and it could not be interfered in revision as the order was neither illegal nor contrary to any law. It appears the petitioners herein had tried to justify the order before the Financial Commissioner on the ground of ownership by adverse possession. This argument was noticed, but ignored by observing that "The question of adverse possession can be agitated in the proper forum. It is fine, but the question is who should do so, the person in possession or the one out of possession. A person in possession need not to file such a suit, but when some one claims/ restoration of possession, he can plead adverse possession as defence. But this is no concern of the revenue officer who has to attest the mutation on the basis of possession and prima -facie title. This is what the Tehsildar has done in this case. So there was no illegality in the order to justify exercise of revisional jurisdiction. It is only the recorded owners of the land who could challenge this mutation as they have not been declared evacuees.
(3.) MOREOVER , the Financial Commissioner has assumed that the owners of the land are evacuees even though there is no declaration under Section 6 of the Evacuee Act. Section 6 of the Act reads as under: 1) Notification of evacuees property (1) The Custodian may, from time to time, notify, either by publication in the J&K Govt. Gazette or in such other manner as may be prescribed. evacuee properties which have vested in him under this Act. 2) Where after the vesting of any evacuee property in the Custodian any person is in possession of any such property he shall be deemed to be holding it on behalf of the Custodian and shall, on demand, surrender possession of it to the Custodian or any person duly authorised by him in this behalf". So, the vesting of the evacuee property in the Custodian under subsection) takes place only when it is notified by publication in terms of sub -section (1) of Section 6. Not otherwise. How such a declaration u/s 6 is made was considered by this court in Mst. Zarifa vs. Custodian General (1973 KLJ. 232), Chief Justice AN held that: "The question of declaration of a person as evacuee is a matter of moment because it concerns his person and property. The provisions of the Act require clear proof of the fact that a person had gone to Pakistan under certain circumstances in which case alone the property can be declared as evacuee property. No question of presumption therefore, arises it is for the department to prove that a person who has been declared to be an evacuee had gone to Pakistan under the circumstances mentioned in the Act. If no proof is forthcoming, it is not at all open to the department to draw any presumption merely from the fact that a person is missing since 1947 or was not heard of. This is indeed a very dangerous principle to apply and the observations made by the Custodian General (supra) appear to me be totally uncalled for and against the very spirit and tenor of the Act. ;

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