SARISHTA DEVI AND OTHERS vs U T OF J AND K TH COMMISSIONER SECRETARY REVENUE DEPTT AND OTHERS

HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU

Reserved on 09.10.2026
Pronounced on 29.10.2026
Uploaded on 29.10.2026

LPA No. 15/2024



…..Appellant(s)/Petitioner(s)
Sarishta Devi and others


Through: Mr. G. S. Thakur, Adv.
Q
vs


U. T. of J&K and others .…. Respondent(s)

Through: Ms. Sagira Jaffer, Adv. vice
Ms. Monika Kohli, Sr. AAG
Mr. S. M. Choudhary, Sr. Adv. with
Mr. Mursaleen, Adv.



Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE




JUDGMENT


Sanjay Dhar-J
1. The appellants have called in question judgment dated 15.12.2023 passed by
the learned Single Judge in OWP No. 930/1991 whereby the writ petition
filed by the predecessor in interest of the appellants challenging order dated
20.09.1991 passed by the J&K Special Tribunal, has been dismissed.
2. Briefly stated, the facts leading to filing of present intra court appeal are that
the land measuring 100 kanals falling under khasra Nos. 1, 2, 3 and 68/17
situated at Village Rajiani, District Kathua was given to Kubjaan, mother of
Amar Nath for the services, which Amar Nath had rendered in war. Since the
father of Late Amar Nath had already died, therefore, the aforesaid land was
allotted to his mother, Kubjaan, who had four children, namely, Late
Amarnath, Vasu Dev, Rattno Devi and Shanti Devi. The aforesaid land was
Rakesh Kumar
2026.10.18 17:40
I attest to the accuracy and
integrity of this document

mutated in the name of Kubjaan vide Mutation No. 9 dated 12.09.1947. After
the death of Kubjaan, Mutation of Inheritance bearing No. 13 was attested in
favour of Vasu Dev, Shanti Devi and Rattno Devi in equal shares. It is
pertinent to mention here that 05 kanals, out of the aforesaid 100 kanals of
land, was acquired by the Irrigation Department, leaving balance of 95
kanals of land, which was mutated in the name of Vasu Dev, Rattno Devi
and Shanti Devi in equal shares. After the death of Kubjaan, three surviving
children, namely, Vasu Dev (son), Rattno Devi and Shanti Devi (daughters)
became co-owners of the land in question.
3. Vasu Dev was succeeded by his widow, Kaushalya Devi, two sons, namely,
Ram Lal and Sada Nand and three daughters. The appellants happen to be
the successors in interest of Sada Nand. Rattno Devi also died and she was
succeeded by the private respondents.
4. Mst. Rattno Devi, the predecessor in interest of the private respondents, held
one-third share of the land out of 95 kanals of land, which comes to 31
kanals 13 marlas of land, whereas Shanti Devi, the second daughter of
Kubjaan became owner to the extent of 31 kanals 13 marlas of the aforesaid
land. Vasu Dev held one-third share of the land, which comes to 31 kanals
and 13 marlas.
5. Mutation No. 79 dated 18.10.1986 under section 4 of the J&K Agrarian
Reforms Act, was attested in respect of 63 kanals 6 marlas of land owned by
Rattno Devi and Shanti Devi in favour of the State on the basis of the entries
made in the revenue record in Kharief 1971 in favour of Sada Nand, who
was shown to be in cultivating possession of the said land. He was
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accordingly, declared as the prospective owner. Mutation No. 85 dated
15.11.1987 was attested under section 8 of the J&K Agrarian Reforms Act in
respect of 27 kanals 3 marlas of land belonging to Rattno Devi in favour of
Sada Nand, the predecessor in interest of the appellants, thereby conferring
ownership rights upon him. Respondent-Kailash Chander, who happens to be
the son of Rattno Devi resumed land measuring 4 kanals 10 marlas on the
basis of the application filed by him under section 7 of the J&K Agrarian
Reforms Act, thereby accepting the attestation of mutation under section 8 of
the Agrarian Reforms Act in favour of Sada Nand. On the basis of the
private agreement under section 12 of the J&K Agrarian Reforms Act, Shanti
Devi relinquished her share in favour of Sada Nand, the predecessor in
interest of the appellants and in this regard, Mutation No. 84 came to be
attested on 11.11.1987.
6. Mutation No. 79 dated 18.10.1986 in respect of the land measuring 63 kanals
6 marlas as also Mutation bearing No. 85 attested on 15.11.1987 under
section 8 of the J&K Agrarian Reforms Act in favour of Sada Nand was
challenged by the private respondents, except respondent No. 11, by filing an
appeal before the Commissioner, Joint Agrarian Reforms, Jammu. Vide
order dated 11.07.1990, the Commissioner allowed the appeal and set aside
Mutation Nos. 79 and 85.
7. The aforesaid order came to be challenged by Sada Nand, the predecessor in
interest of the appellants by way of a revision petition before the J&K
Special Tribunal. The learned Tribunal, vide its order dated 20.09.1991,
partly allowed the revision petition and it was directed that the private
LPA No. 15/2024 Page 3 of 9

respondents excepting respondent No. 11 will get 27 kanals and 3 marlas of
land and while the remaining land would go to Sada Nand, the predecessor in
interest of the appellants after deducting 4 kanals 10 marlas, which
respondent No. 11 herein has already received on resumption. Accordingly,
fresh Mutation was directed to be attested in light of the observations made
in the said order.
8. Sada Nand, the predecessor in interest of the appellants challenged the
aforesaid order passed by the learned Tribunal by way of a writ petition
before this Court, which came to be registered as OWP No. 930/1991. The
said writ petition was dismissed by this Court in terms of order dated
26.04.1999. The order of the writ court was challenged by Sada Nand by
way of an LPA bearing No. 288/1999 and the said LPA was dismissed by the
Division Bench of this Court on 26.10.2004. Thereafter, Sada Nand
approached the Supreme Court by filing an SLP and the Supreme Court
remanded the matter to the writ court. While doing so, the Supreme Court
observed that the High Court has not discussed the application of any
provisions of the Agrarian Reforms Act.
9. In the aforesaid circumstances, the matter came to be considered by the
learned writ court again and vide impugned judgment dated 15.12.2023, the
learned writ court has again dismissed the writ petition, primarily on the
ground that a co-sharer cannot claim to be a tenant of another co-sharer and
seek attestation of mutation under sections 4 and 8 of the J&K Agrarian
Reforms Act on the ground of tenancy.
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10. The appellants, who happen to be the successors-in-interest of Late Sada
Nand, have challenged the impugned judgment passed by the learned writ
court on the grounds that in the instant case, a partition had taken place
between Vasu Dev, Rattno Devi and Shanti Devi, as such, they had become
absolute owners of their respective shares of the joint holding. It has been
contended that after the partition, the share holding of each of the co-sharers
became their self-acquired property and therefore, it cannot be stated that
possession of Sada Nand over the portion of land that had come to the share
of Shanti Devi and Rattno Devi is the possession of a co-sharer. It has been
submitted that Sada Nand was inducted as a tenant by Shanti Devi and
Rattno Devi in respect of the land which had come to their respective shares
and that he was sharing the crops with the aforesaid two persons in the ratio
of 50:50.
11. It has also been contended that Sada Nand was a protected tenant, which is
evident from the revenue entries and the said entries have never been
challenged. Thus, the finding of the Commissioner, Agrarian Reforms, the
J&K Special Tribunal and the learned Single Judge that Sada Nand was a co-
sharer of the land in question is not legally sustainable. It has further been
contended that a co-sharer does not come within the definition of ‘family’ as
contained in J&K Agrarian Reforms Act, as such, it cannot be stated that
Shanti Devi and Rattno Devi were in personal cultivation of the land in
question in terms of the definition of ‘personal cultivation’ as contained in
the said Act. It has also been contended that Mutation Nos. 79 and 85 had
attained finality as the same were not challenged by the private respondents
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within the prescribed period of limitation, but the learned Joint Agrarian
Reforms Commissioner decided the appeal filed by the private respondents
on its merits without adverting to the question of limitation.
12. We have heard the learned counsel for the parties and we have also gone
through the material on record, including the grounds of appeal and the
impugned judgment passed by the learned Singe Judge.
13. A perusal of the record including the revenue record in respect of the land in
question would reveal that 95 kanals of land situated at Village Rajiani
District Kathua came to be mutated in three equal shares in favour of Vasu
Dev, Rattno Devi and Shanti Devi after the death of their mother-Kubjaan,
who had acquired the said land from her son (Amar Nath)upon his death in
war. Sada Nand, who happens to be the son of Vasu Dev, claimed that he
was the tenant of Shanti Devi and Rattno Devi and in this regard, reliance is
being placed upon the copy of Jamabandi (chaar sala) for the years 1968-69
and copy of khasra girdhawari for the Kharief 1971. In both these documents
in the ownership column, names of Shanti Devi and Rattno Devi and
successors of their brother, Vasu Dev, including Sada Nand are shown to be
owners in equal shares. In the cultivation column of khasra girdhawari for
the year 1971, the name of Sada Nand has been shown as a protected tenant
paying rent to the owners. However, there is no material on record, nor is
there any entry in the revenue record to show that there has been any
partition of the land inherited by Shanti Devi, Rattno Devi and Vasu Dev
from their mother. The plea of partition has been projected by the appellants
for the first time in the present appeal. In the writ petition, they have not
LPA No. 15/2024 Page 6 of 9

pleaded that there was any partition of the property between the
shareholders, namely, Rattno Devi, Shanti Devi and Vasu Dev. Therefore, it
can safely be stated that the land that had devolved upon the aforementioned
three shareholders from their mother had remained un-partitioned and it was
in cultivating possession of Sada Nand, the predecessor in interest of the
appellants.
14. It is a settled law that the possession of one co-owner is possession of other
co-owner in respect of unpartitioned joint holding. Attestation of mutation
under sections 4 and 8 of the J&K Agrarian Reforms Act in respect of the
portion of land which fell to the share of Rattno Devi and Shanti Devi was
not legally permissible, because a co-owner cannot be a tenant of another co-
sharer. However, so far as Shanti Devi is concerned, she had entered into a
private agreement with Sada Nand in terms of section 12 of the J&K
Agrarian Reforms Act, whereafter she received the levy in respect of her
share of land measuring 31 kanals 13 marlas from Sada Nand, thereby
conferring ownership rights in his favour. The successor in interest of Shanti
Devi has not challenged the said compromise; as such, the conferment of
ownership rights upon Sada Nand in respect of her share of joint holding has
attained finality.
15. So far as 31 kanals 13 marlas of land which had fallen to the share of Rattno
Devi is concerned, out of the said land, one of her successors, namely,
respondent Kailash Chander, resumed a portion of the land under section 7
of the J&K Agrarian Reforms Act leaving behind of 27 kanals and 3 marlas
of land which fell to the share of other successors of Rattno Devi. Sada Nand
LPA No. 15/2024 Page 7 of 9

or his successors in interest being co-sharers of the land in question cannot
claim to be tenants of their co-sharers and therefore, learned Tribunal has
rightly set aside Mutation Nos. 79 and 85 to the extent of 27 kanals and 3
marlas which fell to the share of private respondent Nos. 5 to 10, the
successors in interest of Rattno Devi.
16. It has been contended by the learned counsel for the appellants that a
co-owner does not fall within the definition of ‘family’ as contained in the
J&K Agrarian Reforms Act, as such, a land holder cultivating land though a
co-owner, cannot be stated to be in personal cultivation of the said land.
Thus, it cannot be stated that Rattno Devi and Shanti Devi were in personal
cultivation of their respective shares of joint holding just because co-owner
Sada Nand was cultivating the said land. On this ground, it is being urged
that Sada Nand was the tenant of Rattno Devi and Shanti Devi.
17. In the above context, it is to be noted that each co-owner is deemed to be in
possession and ownership of every inch of unpartitioned joint holding. Thus,
when one co-owner is in cultivating possession of joint holding, it is to be
deemed that all co-owners are in cultivating possession of the said land. The
co-owners are deemed to be in personal cultivation of the joint holding even
if, only one or few of them are actually cultivating the land. The argument of
learned counsel for the appellants is, therefore, misconceived.
18. So far as the contention of the appellants that the appeal filed by the private
respondent Nos. 5 to 10 before the Joint Agrarian Commissioner was time
barred is concerned, in this regard a perusal of the record of the Joint
Agrarian Commissioner would reveal that the appellants therein had along
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with the appeal filed an application seeking condonation of delay in filing the
appeal. In the said application, it was specifically pleaded that they came to
know about the impugned Mutation Orders only on 25.01.1989 because the
impugned mutation orders were passed at their back. The learned Joint
Agrarian Commissioner has specifically passed an order condoning the delay
in filing an appeal, whereafter he has proceeded to deal with the merits of the
appeal.
19. A bare perusal of Mutation Orders bearing Nos. 79 and 85 would reveal that
the same have been passed at the back of the private respondents or their
predecessor in interest. Copies of these mutation orders which are on record
would reveal that the same do not bear thumb impression or signatures of
private respondents or their predecessor in interest and in fact, their presence
is not even recorded in the mutation orders. Thus, the assertion of the private
respondents that the mutation orders were passed at their back and they had
no knowledge about the said orders appears to be well founded.
20. For all what has been said, analysed and discussed hereinbefore, we do not
find any ground to interfere with the impugned order passed by the learned
writ court. The instant intra court appeal lacks merit and is dismissed
accordingly.

(SANJAY DHAR) RAJNESH OSWAL)
JUDGE JUDGE

Jammu
29.10.2026
Rakesh PS
Whether the order is speaking: Yes/No

Whether the order is reportable: Yes/No
LPA No. 15/2024 Page 9 of 9