J&K Land Revenue Act | Revenue Officer Must Follow Procedure For Title Determination U/S 111-A If Objections Are Raised: High Court

Justice Javed Iqbal Wani observed that when a valid application for partition is filed under Section 105, the revenue officer must notify all interested parties, consider their objections, and proceed in accordance with Sections 109, 110, and 111-A, particularly when disputed questions of title arise.

Expounding on the duties of a Revenue officer while acting under the umbrella of the Act Justice Wani stated,

“.. a revenue officer is bound to notify all the interested parties, consider objections thereof and decide the preliminary issues and if objections warrant rejection of a case, Sections 109 & 110 of the Act of 1996 would apply; otherwise, the revenue officer has to proceed to determine the disputed questions, including title and mode of partition, provided under Section 111-A of the Act of 1996”

The Court was hearing a petition filed by one Ashok Toshkhani, challenging an order dated passed by the District Magistrate, Srinagar, whereby his sister, Basanti Toshkhani, was directed to be put in possession of her alleged share in their ancestral residential property located at Srinagar. A follow-up order passed by the Tehsildar South Srinagar for the execution of the earlier order, was also impugned.

Background:

The controversy arose when Basanti filed an application under the J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, claiming that the petitioner, her brother, had encroached upon her share in the 4.5 Kanal land and residential house left behind by their deceased mother. The application under the Migrant Act was, however, dismissed on the ground that it involved a dispute between co-sharers, which did not fall within the scope of the Act.

Thereafter, she filed a supplementary application seeking attestation of inheritance mutation under the Hindu Succession Act, claiming rights as a coparcener. The District Magistrate entertained the application and directed the demarcation of the property and delivery of possession to Basanti to the extent of her share. This order was passed despite the petitioner asserting ownership on the basis of a registered Will executed in 1986 by their mother bequeathing the entire property to him.

The petitioner challenged the jurisdiction of the District Magistrate to entertain and decide upon a claim involving title to urban immovable property. He argued that the property in question, being a residential house in an urban area, did not fall within the definition of "land" under Section 3(2) of the Land Revenue Act, and thus was outside the scope of the partition jurisdiction under Section 105 of the Act. He also submitted that the Magistrate acted in violation of principles of natural justice by disregarding the Will and denying him an opportunity to prove it.

Court's Findings:

Justice Wani began by referring to Section 105, which empowers a revenue officer to partition land. However, as per the definition under Section 3(2), the term “land” includes agricultural land and associated structures, but explicitly excludes sites of buildings in towns and village abadi.

“.. In the instant case, the property indisputably is land and a residential house situated at Raj Bagh, Srinagar, an urban area and, thus, manifestly excluded from the purview of the definition of “land” under Section 3(2) of the Act of 1996 and hence outside the competence and jurisdiction of the Revenue Officer under Chapter X of the Act of 1996”, Justice Wani pointed.

Even assuming the property qualified as “land,” the Court emphasized that Chapter X of the Act provides a full procedural framework. Once objections are raised, especially concerning proprietary title, the officer must either refer the parties to civil court, require the institution of a civil suit, or inquire into the objection by following the procedure of trial under the Code of Civil Procedure, as mandated by Section 111-A.

The High Court found that the District Magistrate had failed to consider or even mention the petitioner's claim of ownership based on the Will. The order had proceeded on the assumption that the parties were co-heirs, without adjudicating the title issue, which was central to the dispute. Such an approach, the Court held, was not only perfunctory but also without legal competence.

The petitioner had also challenged the constitutional validity of Section 7(1)(b) of the Migrant Act, which requires surrendering possession before filing an appeal. However, the Court refused to entertain this challenge observing that this provision had already been upheld in previous judgments, including Jagar Nath Bhari v. State 2007.

The court recorded,

“.. the Act stands enacted to ensure the preservation and protection of migrant property, which necessarily entails that the unauthorized occupation of a migrant property by any person cannot be permitted to continue even for the shortest period and that an unauthorized occupant of the migrant property, against whom an eviction order has been passed under the said Act, would otherwise seek to prolong proceedings by filing an appeal, with the intent of continuing in unauthorized possession of the migrant property”.

Furthermore, the Court said that since the impugned orders were not passed under the Migrant Act, the question did not arise for determination.

Concluding that the District Magistrate had acted without jurisdiction and in disregard of the procedural safeguards required under the Land Revenue Act the court set aside the impugned orders. However, the parties were granted liberty to seek legal remedies available under law, including filing appropriate proceedings in a civil court.

Case Title: Ashok Toshkhani Vs UT Of J&K

Citation: 2025 LiveLaw (JKL) 191

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