Jammu & Kashmir High Court
Naresh Kumar vs Respondent(S) on 8 April, 2026
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
2026:JKLHC-JMU:983-DB
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 25.02.2025
Pronounced on 08.04.2026
Uploaded on 08.04.2026
Whether the operative part or full
judgment is pronounced: Full
CJ Court:
LPA No. 06/2023 (O&M)
In (OWP No. 879/2003)
CM No. 297/2023
1. Naresh Kumar, aged 69 years S/o ...Petitioner(s)/Appellant(s)
Sh. Mulkh Raj, R/o Hiranagar
District Kathua.
2. Dharampal, age 74 years.
3. Satya Paul aged 70 years.
4. Sudershan Kumar Aged 67 years
-all sons of Gouri Shankar.
5. Vimla Devi @ Guddu Devi aged
55 years D/o Gouri Shankar.
6. Geeta Devi aged 50 years Wd/o
Sudesh Kumar
-All residents of House No. 4/8
Hiranagar District Kathua.
Through: Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate
v/s
.... Respondent(s)
1. J&K Special Tribunal, Jammu.
2. Pritam Chand
3. Ashok Kumar
4. Manohar Lal
-all sons of late Sh. Budha, all
residents of village
Raghunathpura Tehsil Hiranagar
District Kathua.
5. Dilawar Singh
6. Sagar Chand
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7. Dwarka Nath
8. Mangal Dass
-Sons of Bodh Raj, All residents
of village Raghunathpura Tehsil
Hiranagar District Kathua.
9. Anju Bala, D/o Sh. Bodh Raj,
W/o Sh. Sham Lal R/o Thangar
Moar Tehsil Hiranagar District
Kathua.
10. Geetanjali D/o Sh. Bodh Raj W/o
Sh. Ashok Kumar R/o Garwal
Vijaypur Tehsil and District
Samba.
Through: Mr. Rakesh Chargotra, Sr. Advocate with
Mr. Ashok Singh, Advocate for R-2 to 4.
Mr. Mandeep Singh, Advocate for R-4 to
10.
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE.
JUDGMENT
‘OSWAL-J’
1. This intra-court appeal is directed against the judgment dated
23.11.2022 rendered by the learned writ court in OWP No. 879/2003. In
terms of the impugned judgment, the learned writ court has quashed the
order dated 27.08.2003 passed by the learned Special Tribunal, Jammu
as well as the mutation No. 221 dated 04.12.1986, and further the matter
has been remitted to the Tehsildar, Hiranagar to conduct a de novo
enquiry into all aspects as highlighted in the judgment and pass fresh
mutation in terms of Agrarian Reforms Act of 1976 after affording
opportunity of hearing to all the stakeholders including the appellants
and the private respondents.
2. The judgment dated 23.11.2022 has been impugned by the appellants on
the ground that the private respondents had not challenged mutation Nos.
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104, 106 and 115, even though the respondent No.1 i.e. J&K Special
Tribunal, Jammu in its order dated 27.08.2003 had explicitly held that
that as mutation Nos. 104, 106 and 115 had become final, there was no
question of attesting mutation No. 221 under Section 4 of Agrarian
Reforms Act in favour of the writ petitioners/private respondents. It is
urged that as there was no challenge made to surrender of tenancy and
the mutations by the private respondents, the learned writ court had no
jurisdiction to entertain appeal directly or indirectly allowing a challenge
to mutation No. 104, 106 and 115 and surprise the appellants with the
judgment impugned. It is further urged that the learned writ court
proceeded on a wrong presumption, as if, surrender of tenancy and
attestation of mutation Nos. 104, 106 and 115 were part of
implementation of the Agrarian Reforms Act, 1976. In fact, the learned
writ court landed itself in grave error of law both pertaining to nature of
jurisdiction under Article 226 of the Constitution, as also with respect to
nature of controversy by taking same as a matter relating to
implementation of Agrarian Reforms Act of 1976, which it was not.
3. Heard learned senior counsel for the parties and perused the record.
4. The sole contention of the appellant is that in absence of challenge
thrown to surrender of tenancy by the predecessor-in-interest of the
private respondents, the learned writ court could not have commented
upon the validity of attestation of mutation Nos. 104, 106 and 115.
5. In order to appreciate the abovementioned contention, it would be
appropriate to have the brief resume of the facts of the case. One Budha
Ram was the protected tenant of land measuring 17 kanals 12 marlas,
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comprising survey No. 228 (5 kanals) and survey No. 230 (12 kanals 12
marlas) situated at village Gopala Chak Hiranagar, District Kathua. In
the month of May 1971, he surrendered the tenancy in favour of the
owners pursuant to which mutation No. 104 was attested on 27.09.1971.
As the possession of owners was not reflected in Girdawri, pursuant to
the application moved by Mulkh Raj, mutation No. 106 was attested on
22.01.1972, and the land in question was recorded as “Khud Kasht
Malkan.” Subsequently, mutation No. 115 was attested on 25.10.1972,
and Budha Ram was recorded as “un-authorized occupant” of the land.
6. Thereafter, in terms of mutation No. 221, Buddha Ram was declared as
prospective owner of the subject land in terms of Section 4 of Agrarian
Reforms Act on 21.12.1986. This order was assailed before Director
Land Records (with power of Commissioner, Agrarian Reforms), J&K,
who vide order dated 28.9.1996 set aside the mutation No. 221 attested
by Tehsildar Hiranagar. Private respondents assailed the order dated
28.9.1996 before respondent No. 1, but remained unsuccessful as the
learned Tribunal dismissed the revision petition vide order dated
27.8.2003.
7. The order dated 27.8.2003 was assailed by the private respondents
through the medium of OWP No. 879 of 2003 on the ground that the
learned Tribunal in parallel proceedings for seeking possession initiated
by the predecessor-in-interest of the appellant has remitted the matter to
Additional Deputy Commissioner, for detailed enquiry and for returning
a finding with regard to the possession and status of Budha Ram and the
proceedings were stated to have been pending. It was also urged by the
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private respondents that the entry in 1971 was managed by the
predecessor-in interest of appellants, despite the fact that the possession
continued to remain with Budha Ram. It was also asserted that mutation
dated 21.12.1986 was attested on the basis of revenue record and as per
the position on spot.
8. The writ petition was strongly opposed by the appellants and the learned
writ court remitted the matter to Tehsildar Hiranagar to look into all its
aspects and attest the mutation afresh. Interestingly, the learned writ
court also set aside the mutation No. 221, which was already set aside by
Director Land Records vide order dated 28.9.1996.
9. The learned writ court while remitting the matter to Tehsildar, Hiranagar
has made certain observations in para of 13 of the judgment impugned
and the same are extracted as under:
“The sequence in which the developments took place in the year
1971-72 and the manner in which the Revenue Authorities acted from
time to time leaves no manner of doubt that the proceedings
conducted by the Revenue Authorities were not aimed to get the true
position reflected in the revenue records. The mutations, one after
another, were obviously entered for consideration unrelated to the
implementation of the provisions of the Act of 1976. The Tehsildar
Hiranagar, who attested the mutations, has not bothered to enquire
into the circumstances that led to the execution of an affidavit of
relinquishment of tenancy by late Budha. Obviously and without any
manner of doubt, the alleged relinquishment of tenancy was without
any consideration nor the same was evidenced by any document
executed before any competent authority. The Tehsildar was under an
obligation to ascertain, after conducting proper enquiry, the
circumstances that may have led late Budha to relinquish his tenancy
rights. The date, month and year when the alleged relinquishment of
tenancy rights took place, also assumes importance. It is during those
days, when the Government was contemplating to come up the J&K
Agrarian Reforms Act, 1972 (later repealed and replaced by Act of
1976) providing for conferment of ownership rights in favour of the
tiller in cultivating possession of land during kharif 1971. The
possibility of manipulation of the documents in the circumstances
was not ruled out. Neither the Commissioner, Agrarian Reforms, nor
the Tribunal went to these aspects of the matter. Both the Forums
below have not considered another vital aspect of the matter, i.e.
attestation of mutation No. 104 and 106, one in September 1971 and
another in January 1972. In the mutation No. 04, there is only a
mention of relinquishment of tenancy rights by late Budha in favour
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Girdawari of kharif 1971. Obviously, this would not have served the
purpose and, therefore another mutation No. 106 was attested to
record the owners in self-cultivation in Kharif 1971. The
circumstances which led to attestation of these mutations have also not
been gone into by both the forums below.
It is true that when mutation No. 221 was attested in favour of the
petitioners by correction of Khasra Girdawri and the petitioners were
recorded as prospective owners under section 4 of the Agrarian
Reforms Act, the private respondents were not heard in the matter. As
a matter of fact, respondent No. 3 was never aggrieved of mutation
under section 4 of the Act of 1986 attested in favour of the petitioner.
This is evident from the fact that he never preferred any appeal against
mutation No. 221 before the Commissioner, Agrarian Reforms. The
Commissioner, Agrarian Reforms did not take into consideration this
aspect and set aside the entire mutation though respondent No. 2 was
only entitled to half of the land.”
10. It is an admitted case that the private respondents never challenged the
mutation Nos. 104, 106 and 115, and interestingly in mutation No. 115
Budha Ram was recorded as un-authorized occupant. The learned
Tribunal in its order dated 27.8.2003, has also observed that mutation
Nos. 104, 106 and 115 have not been challenged so far and having
attained the finality, mutation No. 221 could have been attested by the
same officer. We too are of the view that in absence of the challenge to
the mutation Nos. 104, 106 and 115, mutation No.221 under Section 4 of
the Act of 1986 could not have been attested in favour of the
predecessor-in-interest of the private respondents. Though the Senior
Counsel for private respondents tried to persuade the court that
procedure under section 41 of the Tenancy Act was not followed, as
such, the mutation under section 104 is nullity, but the fact remains that
the mutations were not challenged by the predecessor-in-interest of the
respondents during his life time and even by the private respondents, as
such, we are not inclined to accept this contention of the learned Senior
Counsel and accordingly, this contention is rejected.
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11. In absence of challenge to mutation Nos. 104, 106 and 115 and once the
validity of these mutations, were not the issues before the learned writ
court, the learned writ court ought not to have dealt and commented
upon the mode and manner in which these mutations were attested. The
learned writ court was to only examine the validity of the order dated
27.8.2003 and 28.9.1996 passed by the learned Tribunal and Director,
Land Records, (Commissioner Agrarian Reforms), Jammu respectively.
A perusal of the judgment impugned would reveal that the learned Single
judge has nowhere observed/held that the orders passed by the learned
Tribunal as well as Director, Land Records, (Commissioner Agrarian
Reforms), Jammu are bad in law. In fact, the learned writ court was not
sure about the invalidity of mutation, which is evident from the
observation made by the learned writ court that “The possibility of
manipulation of the documents in the circumstances was not ruled out”.
12. It would be apt to take note of the fact that proceedings initiated by the
appellants regarding recovery of possession of the land in question are
still pending before Additional Deputy Commissioner and the land is
admittedly in possession of the private respondents.
13. After having examined the judgment impugned minutely, we are of the
considered view that the learned writ court has not rightly determined the
controversy and has erred in commenting on the mode and manner in
which the mutation Nos. 104, 106 and 115 were attested, particularly
when the same were not the subject matter of writ petition and the writ
court was only enjoined upon to determine the correctness of the order
dated 27.08.2003 passed by the learned Tribunal.
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14. Accordingly, we set aside the judgment dated 23.11.2022 rendered by
the learned writ court in OWP No. 879/2003 and the writ petition is
dismissed. It is made clear that the Additional Deputy Commissioner
concerned, before whom the proceedings for recovery of the possession
of the subject land are pending, shall proceed with the proceedings
without being influenced by any observation made either by us or by the
learned Tribunal, and conclude the same in accordance with law.
Further, the dismissal of the writ petition would not preclude the private
respondents to explore and avail appropriate remedy in accordance with
law qua the mutation Nos. 104, 106 and 115.
(RAJNESH OSWAL) (ARUN PALLI)
JUDGE CHIEF JUSTICE
JAMMU
08.04.2026
Karam Chand
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
