SRINAGAR: The Jammu Kashmir and Ladakh High Court has set aside two revenue orders overturning a land mutation in Kathua, holding that the authorities committed a jurisdictional error by deciding the merits of an appeal without first determining whether it had been filed within the prescribed limitation period.
Allowing a petition filed by 72-year-old Prem Singh, Justice Shahzad Azeem directed the Deputy Commissioner (Collector), Kathua, to first examine whether an appeal challenging the mutation was maintainable within the statutory limitation period and proceed to decide the dispute on merits only if the delay was condoned in accordance with law.
In a judgment pronounced on November 3, 2026, the court held that the appeal against Mutation No. 137, attested on January 8, 2011, had been instituted on February 2, 2013, nearly two years later, whereas Section 22 of the Jammu and Kashmir Agrarian Reforms Act, 1976, prescribed a limitation period of 60 days.
“The question of limitation must be decided first, even more so, where the delay is apparent on the face of the record,” the court observed.
The case arose from a dispute over 27 kanals and 14 marlas of land comprised in Survey No. 61/26 Min at Padari Pain in Nagri Parole tehsil of Kathua district, where Singh claimed to have remained in continuous possession before and after 1971. A brick kiln had also been constructed on the land.
According to the judgment, the recorded owners of the property were Krishan Singh, Mst. Banti Devi, Nirmala Devi and Vaishno Devi. Singh had instituted a civil suit on January 2, 1998, before the Sub-Judge, Kathua, seeking a declaration of ownership on the basis of adverse possession.
The civil court decreed the suit on December 26, 2007, holding that the land, recorded as “Ghair Mumkin Patha”, fell outside the definition of land under the Agrarian Reforms Act, 1976, and that the civil court consequently had jurisdiction to entertain the suit.
An appeal against the decree was subsequently filed before the Additional District Judge, Kathua, but was withdrawn on February 10, 2010.
On the strength of the civil court decree, Mutation No. 137 was attested by the Tehsildar, Kathua, on January 8, 2011, recording Singh as the owner of the land.
However, respondent Mst. Ram Kali challenged the mutation before the Deputy Commissioner (Collector), Kathua, on February 2, 2013, seeking relief in respect of only two kanals and five marlas of land.
The Deputy Commissioner, through an order dated August 10, 2018, set aside the entire mutation, holding that the civil court decree had been passed without jurisdiction under the Agrarian Reforms Act.
Singh challenged the decision before the Divisional Commissioner, Jammu, and subsequently approached the Financial Commissioner (Revenue), J&K. However, both authorities upheld the Deputy Commissioner’s decision through orders dated October 9, 2021, and November 16, 2022, respectively.
The revenue authorities had, among other grounds, held that the land was recorded as “Warhal Awal” in the 1970-71 Jamabandi and fell within the definition of land under the 1976 Act. They also questioned its conversion into commercial use for a brick kiln without prior permission, held that disputes relating to adverse possession were triable by the Collector under Section 19, and that the jurisdiction of civil courts was barred under Section 25 of the Act.
Challenging these orders before the High Court, Singh’s counsel, advocate Virender Bhat, argued that once the land had been recorded as “Ghair Mumkin Patha“, it fell outside the scope of the Agrarian Reforms Act and the revenue authorities had no jurisdiction to overturn a mutation based on a civil court decree.
He further argued that the revenue authorities could not invalidate the civil court decree without recourse to the remedies available under the Code of Civil Procedure.
The petitioner’s counsel also questioned the maintainability of the appeal filed by Ram Kali, contending that the Deputy Commissioner had failed to examine the issue of limitation despite the substantial delay.
On the other hand, Senior Additional Advocate General Monika Kohli, assisted by advocate Sagira Jaffar, defended the impugned orders, arguing that the civil court decree forming the basis of Mutation No. 137 had been passed without jurisdiction and was therefore a nullity in the eyes of law.
After examining the rival submissions and the record, Justice Azeem held that the limitation issue went to the root of the authority’s jurisdiction to entertain the appeal.
The court noted that Section 22 of the Agrarian Reforms Act prescribed 60 days for filing an appeal and also made the provisions of the Limitation Act applicable. Consequently, Section 5 of the Limitation Act provided for condonation of delay where sufficient cause was established.
It observed that the appeal against the mutation had been filed nearly two years after its attestation, far beyond the prescribed 60-day period, but the Deputy Commissioner’s order contained no discussion on limitation, no reference to an application seeking condonation of delay and no finding that such delay had been condoned.
The High Court held that an appellate authority dealing with an apparently time-barred appeal was duty-bound to determine whether the delay could be condoned before examining the substantive dispute.
“When an appeal is ex facie time barred, the appellate authority is duty bound to first determine whether the delay is condonable. Only after the delay is condoned does the authority acquire the jurisdiction to examine the merits,” the judgment stated.
It further held that deciding the merits without first adjudicating the limitation issue amounted to a material irregularity and jurisdictional error.
The court found that the subsequent orders of the Divisional Commissioner and Financial Commissioner were also unsustainable as they had upheld the Deputy Commissioner’s decision without addressing the limitation defect.
Since the impugned orders were liable to be set aside on this ground, the court refrained from examining the rival claims concerning ownership, adverse possession and the applicability of the Agrarian Reforms Act.
“Any observation on the merits would be premature and unwarranted at this stage,” Justice Azeem observed.
Accordingly, the High Court quashed the orders dated October 9, 2021, and November 16, 2022, and remitted the matter to the appellate forum.
The Deputy Commissioner (Collector), Kathua, has been directed to decide the question of limitation afresh and proceed to examine the merits only if the delay is condoned in accordance with law.
The petition was disposed of along with the connected application.
