Ab. Rehman Mandoo and Others vs State and Others

Muzaffar Hussain Attar, Judge

An application was filed before Tehsildar, Srinagar, by one Aijaz Ahmad seeking demarcation of the land covered under survey no's 64, 65, 66,

67 and 68. In the said application, it was stated by Aijaz Ahmad that the said land is in his possession as also in possession of the other co-sharers.

The order passed on 16th February, 2009, on the said application by the Revenue Authority, reveal that Pathwari Halqa concerned was directed

to demarcate the land in presence of parties without disturbing the physical possession of the parties. The report was filed by the Pathwari

concerned. It is reported that the matter does not pertain to demarcation of the land, but the applicants want to take the possession of the land in

terms of mutation Order No. 1398. Naib Tehsildar, submitted report to the Tehsildar mentioning the same fact. The petitioners have filed civil suit

which is pending before the court of competent jurisdiction. Aijaz Ahmad Mandoo is defendant in the said suit. Record of this writ petition reveals

that on the application of Aijaz Ahmad another report was sent on 20th May, 2009, in which it is specifically stated that the issue involved is not

demarcation of land on spot but of handing over the possession. Aijaz Ahmad, filed another application before the Tehsildar on 18th November,

2009, wherein he has stated that Abdul Rehman Mandoo, Gh. Ahmad and their children are allegedly creating law and order problem and are

hell-bent to dispossess the said Aijaz Ahmaed. On this application, Tehsildar directed the SHO, Police Station, Ram Munshi Bagh, and Srinagar to

verify and do the needful for protection of the property of the applicant under law. It was further provided in the said order that since the

property/land is a joint ancestral property of applicant and non-applicants and he has every right to enter into his land /property. Thereafter, on

18th October, 2009, Tehsildar, sent another communication to SHO, Police Station, Ram Munshi Bagh, Srinagar in respect of the land measuring

18 kanals and 4 marlas covered under survey nos. 64,65,66,67 and 68 in which it was also stated that same is recorded in the name of Aijaz

Ahmad in terms of mutation no. 1398. The SHO, Police Station, Ram Munshi Bagh, Srinagar was also informed that the land is State land and the

non-applicants Ab. Rehman Mandoo and others have also same land in the same survey numbers. It was also stated that the land in question was

demarcated by the concerned field staff on 19th November, 2009 and the parties were informed about the boundaries of their shares. The SHO

was informed to provide necessary protection to the applicants for safeguarding their possession. It is this communication, which is called in

question in this writ petition, inter-alia on the grounds that the petitioners were having possession of the said land; the dispute was already

compromised between the predecessors in interests of the parties way back in the year 1976 in a civil suit which was pending on the files of this

Court and in sequel thereto, the order of mutation was passed by the competent authority which though initially was set-aside by the Financial

Commissioner, Revenue, but in a review petition was maintained, of course after making some clarification.

Heard learned counsel for the parties. Considered the matter.

Learned counsel for the petitioner argued in tune with his pleadings.

Learned counsel, Mr. Mohammed Amin, appearing for private respondents submitted that the private respondents as also petitioners have filed

applications seeking vesting of ownership rights under the Jammu and Kashmir State (Vesting of Ownership to the Occupants) Act, 2001.

Learned counsel submitted that it is the authority under the said Act who has to find out as to which party is in possession of the said land. Learned

counsel further submitted that the civil suit is also pending in respect of the same property.

In view of the reports of the subordinate revenue authority what emerges is that the issue involved is not of demarcation of land on spot but of

handing over the possession. In the face of those reports, the Tehsildar ought not to have sent the communication to the SHO, which is impugned

in this writ petition. The parties are litigating before the civil court before authority in respect of their claims for vesting of ownership rights under the

aforementioned Act of 2001. The issue as to who is in possession of the property is to be decided by the appropriate forum. The Tehsildar, while

dealing with the application for demarcation of land could not request the SHO to provide protection as under the garb of such request, the

petitioners apprehension of being dispossessed on spot and that too on the face of reports of the subordinate revenue authority, is not thus without

basis. The order of the revenue authority dated 16th February, 2009, is legal as while directing the Pathwari, Halqa concerned to demarcate the

land in presence of the parties it was directed that their physical possession shall not be disturbed. This is the correct position in law as when

demarcation of the land is sought by any party, then in such proceedings physical possession can not be disturbed on spot. The communication for

the above stated reasons is held to be without authority of law and without jurisdiction. It is submitted at bar that civil court has passed order of

status-quo in respect of the property. The parties to abide the orders of the civil court and which may be passed hereafter.

For the above stated reasons this petition is allowed. By issuance of writ of Certiorari, impugned Communication No. 2307/TSN/OQ dated

18th December, 2009 issued by Tehsildar, Srinagar-respondent no. 5 is quashed.

Disposed of.