(This Judgment Delivered at Srinagar Bench)
Oral Order:
1. The petitioners pray for issuance of Writ of Mandamus, directing the respondents to restore the possession to the petitioners 1 to 6, to the extent of land measuring 367 Kanals comprising of Khewat no. 314 Min, situated at Saloora, Tehsil and District Ganderbal, Kashmir.
2. In the alternative it is prayed that respondents be directed to pay compensation to the petitioners in respect of the above land in accordance with the provisions of JandK Land Acquisition Act.
The basis of praying for issuance of aforesaid directions inter-alia is that one Lala Mangat Ram who passed away on 30th May, 1958, was owner in possession of land
measuring 1353 Kanals 19 Marlas comprising of Khewat No. 314 situated at Saloora, Tehsil and District Ganderbal, Kashmir; the land was purchased from one Prethivi Maya Singh adopted son of Thal Dhan Singh by way of duly registered Sale Deed no. 1481 in the year 2003 (Bikrimi) i.e., 1946 A. D, for a consideration amount of Rs. 70,000; Late Mangat Ram, had two wives namely Smt. Laxmi Devi and Smt. Satyawati and both of them are dead; Shrimati Laxmi Devi, had begotten one son namely Mansa Ram and her second wife namely Satyawati had begotten two sons namely Radha Krishen, Kewal Krishan and three daughters namely Swarn Lata, Shakuntala and Indubala to Lala Mangat Ram; the son Mansa Ram passed away on 13th January 1983, leaving behind his widow namely Smt. Krishna Devi, two sons namely Satesh Chander and Suresh Chander and two daughters namely, Shashi and Sushma; Smt. Krishna Devi, is also stated to have passed away on 7th August, 1983, and her one son namely Suresh Chander has also passed away on 12th April, 2001.
3. The further case of the petitioners is that petitioners 2 to 6 have executed power of attorney in favour of petitioner no. (1) Who has been duly appointed attorney to deal with all the aspects of the matter to the extent of their entitlement and share from the land measuring 1353 Kanal 19 Marlas comprising of Khewat No. 314 Min.
4. It is also pleaded that petitioner no. (1) had joined army and retired as Brigadier from the Indian Army, in the year 1997 after rendering a long service of almost 35 years and has taken part in all the three military combats in the year 1962, 1965 and 1971.
5. At paragraph (14) of the writ petition, it is pleaded that, land measuring 252 Kanals has been under the tenancy of different tenants and they have become owners of the said land in terms of JandK Agrarian Reforms Act 1976, whereas land measuring 1076 Kanals has been occupied by the Forest Department. Reference has also been made to orders on mutation passed by Revenue Officers.
6. It is also referred to in the writ petition that respondents have staked their claim of being owners in possession of property on the basis of a so called Sale Deed.
7. Respondents 1, 4 and 6, have filed reply affidavit and it is specifically pleaded that respondent-Forest department has purchased the land measuring 1077 Kanals and 16 Marlas, which is subject matter of the writ petition, from Radha Krishan Kuthiala, Kewal Krishna Kuthiala, Swarn Lata, Shakuntala and Indubala, sons and daughters of Late Lala Mangat Ram, in the year 1961, for a consideration amount of Rs. 64,665/- regarding which Sale Deed has been executed and is registered by Sub-registrar, Srinagar, on 11th April 1961.
8. It is also pleaded that, though order of Mutation No.1249 has been recorded in the name of Forest Department, on the basis of aforesaid Sale Deed but for the reasons known to the Revenue Officers, it has not been attested.
9. In pursuance of the Court order, respondent no. 3, Principal Chief Conservator of Forests has filed status report, in which besides reiterating what has been stated in the reply affidavit, it has been submitted that the land is a fully grown forest of willow trees, and is fenced on all sides. It is also stated that the forest is being managed under clear felling Silvicuture system, strictly as per working plan framed which has been framed and revised from time to time.
10. It is also pleaded that this part of land is compartment 25/H (Harran Shalbugh).
11. It is also pleaded that the compartment 25/H comprises of total area of 54.18 Hactres and is a wet land which attracts huge number of migratory and other wild life/bird species.
12. It is also pleaded in the status report that the compartment is well delineated all around, and is demarcated with concrete boundary pillars.
13. It is also pleaded that possession of the said land by the Forest Department is legal in terms of the registered Sale Deed.
14. Learned counsel for petitioner, produced photocopies of Sale Deed executed in favour of the respondents in respect of the land in question which document shows that same has been registered on 11th April, 1961 by Learned Sub-Registrar, Srinagar.
15. Learned counsel for petitioner, also produced photocopies of the order of the Divisional Commissioner, Kashmir, in which he has reiterated the Mutation Nos. 601, 1270, and 1027 are not legal. Learned Counsel for petitioner, also produced copy of the order on Mutation no. 1270 passed on 18th February, 2012, documents are taken on record.
16. Learned counsel submitted that petitioners who are children from the second wife of the estate holder, being not parties to the sale deed, their rights in the property survive and the possession of the property is to be restored to them or they have to be paid the compensation.
17. Learned counsel referred to Section 17 of the Hindu Succession Act. Learned counsel also referred to Section 7 and 54 of the Transfer of Property Act, to indicate that what the Sale in the law would mean and how sale in Law takes effect. Learned counsel also submitted that the writ Court could also look into the issues of fact.
18. Learned Counsel referred to the Judgments reported as AIR 2013 SC, 565 titled Tukaram Kana Joshi and ors V/s MIDC and ors, AIR 2012 SC, 3848 titled Real Estate Agencies V/s Government of Goa and ors, AIR 2012 SC, 559 titled State of Haryana V/s Mukesh Kumar and ors, AIR 2011 SC, 3081 titled Rajiv Sarin and Anr V/s State of Uttarkhand and ors, HC JandK, Zaminaran of Vallage Chak Baltorian and ors V/s State of JK and ors, AIR 2006, NOC 1018 HP, titled Jai Ram V/s State of HP and ors Air 2005 SC, 488 titled State of UP and ors V/s Manohar, AIR 1990, Calcutta 185,titled Pratima Paul and ors V/s Competent Authority and ors, AIR 1985, JandK 76 titled State of JandK and Another V/s Gopi Nath Wali and Anr.
19. Mr. B. A. Dar, Learned Additional Advocate General, appearing on behalf of respondents, submitted that the land in question has been purchased by Forest Department through a Sale Deed in the year 1961.
20. Learned Counsel for respondents, submitted that the land in question is in possession of the Forest Department from the date of the execution of the Sale Deed.
21. Learned Counsel submitted that serious and complicated issues of fact have been raised by the petitioners which cannot be adjudicated upon in writ petition.
22. Respondents have become owners in possession of the land which is subject matter of the writ petition on the strength of a registered Sale Deed which has been executed in the year 1961. In terms of Section 24 of the Land Revenue Act, it is the statutory duty of the Revenue Authorities to maintain the annual record of the land holders, assignees of revenue and occupancy tenants.
23. In the case on hand the purchase of land which is the subject matter of writ petition has been brought to the notice of the revenue authorities and the concerned revenue authority has reflected same in the revenue records in the registry of Mutations. For what reasons the mutation has not been attested is not known to the Court. However, failure of the revenue authority not to attest the mutation on the basis of the Sale Deed will not change the complexion of the legal rights of the respondents, the owners in possession of the land in question.
24. In terms of section 54 of the Transfer of Property Act all the rights and interest in the immovable property have been transferred to the Vendee viz, forest department, when the sale deed was executed by owners.
25. In the case on hand, all the interest in the land in question have been transferred to the Forest Department in terms of the Sale Deed executed on 11th April 1961. Consequently, all the rights which before the execution of the Sale Deed vested in the owner, stand extinguished.
26. The property can be acquired when it is required for any public purpose and the property can be acquired by following the modes which are prescribed under the State Land Acquisition Act. It can be compulsorily acquired or can be acquired, through private negotiations. The mode prescribed for acquisition of property in the case on hand does not come into play as the property has not been acquired but has been purchased by the execution of Sale Deed between the parties. This mode of transfer of immovable property is not barred by any statute. There can be sale of immovable property between the individual and the Government by execution of a sale deed in accordance with law. For execution of Sale Deed there have to be two contracting parties and they must satisfy the legal requirements for execution of the valid Sale Deed. The Sale Deed in the present case has been legally and properly executed.
27. The issue raised by the petitioners that they were not party to the Sale Deed cannot be looked into in the writ proceedings in as much as in the Sale Deed reference is made to power of attorney executed in favour of the vendors authorising them to execute the Sale Deed by co-sharers.
28. Besides this, it is not pleaded in the writ petition that the predecessor in interest of petitioners owned the only property which is subject matter of the writ petition. The co-sharer in law is authorised to transfer interest in his share of property but he should not exceed his share of property. In absence of the pleading that the predecessor in interest of the petitioners did not own any other immovable property, the claim of the petitioners projected in this writ petition and reliefs sought for cannot be granted by the Court.
29. The revenue entries do not confer title in immovable property on a person.
30. The petitioners have to establish their legal rights qua the property in question in appropriate proceedings. Writ Court in the facts of this case cannot declare that petitioners are owners of land. Writ Court cannot further declare Sale Deed illegal.
31. The Writ of Mandamus can be issued only when it is proved that party has vested legal right in him and the opposite party has statutory and public duty to perform towards the petitioners.
In the facts of this case, there is no legal right vested in petitioners, nor respondents have to perform any public duty towards the petitioners, the Writ of Mandamus thus cannot be issued.
32. The dispute raised is purely of civil nature for which writ petition is not the appropriate remedy.
33. Until such time the Sale Deed stands, the petitioners are precluded from asserting any right qua the land in question. Allowing the prayer of writ petition will in essence result in declaring sale deed illegal, which relief cannot be granted in writ petition.
The Judgments relied upon by the learned counsel for petitioners proceed on their own facts and do not advance cause of petitioners.
34. For the above cited reasons, this petition being meritless is accordingly dismissed along with connected MP s.