Co-sharer must file civil suit in 3 months if title dispute arises: HC

Srinagar, May 20: The J&K and Ladakh High Court Tuesday held that if a co-sharer raises a title dispute, the Revenue Officer must either defer proceedings pending court adjudication or direct the party to file a civil suit within three months.

Dealing with a related petition, a bench of Justice Javed Iqbal Wani also held that else the Revenue Officer must inquire into the objection following the civil trial procedure provided under the Code of Civil Procedure.

If a partition order attains finality, the officer is empowered to deliver the possession accordingly, it said.

One Ashok Toshkhani had petitioned the court seeking its intervention to quash an order passed by the District Magistrate Srinagar regarding demarcation and possession of immovable property comprising 4.5 kanal land along with the residential house existing thereon to the extent of her share.

Toshkhani was also aggrieved by the consequential order, the Tehsildar South, Srinagar, had passed on February 28, 2023, whereby a team of officers was constituted for the purposes of execution of the order passed by the Deputy Commissioner (DC) Srinagar.

She also questioned the validity of Section 7(1)(b) of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.

Referring to Section 105 of the Land Revenue Act, the court said that the same empowers a revenue officer for the partition of land, which land for the application of the Act of 1996 as per the definition contained in Section 3(2), means the land used for agriculture or related purpose, including structures and trees thereon while excluding sites of buildings in a town or village abadi or land appurtenant thereto.

ìSection 105 of the Act of 1996 cannot be read in isolation, as Chapter X provides complete code and mechanism for partition, including procedural safeguards and that upon a valid application filed under Section 105 of the Act of 1996, a revenue officer is bound to notify all the interested parties, consider objections thereof and decide the preliminary issues,î the court said. ìIf objections warrant rejection of a case, Sections 109 and 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.î

The court underscored that as is manifest from Section 111-A of the Act of 1996, if a co-sharer raises a title dispute, the Revenue Officer must either, defer proceedings pending court adjudication, direct the party to file a civil suit within three months or inquire into the objection following the civil trial procedure provided under the Code of Civil Procedure and if a partition order attains finality, the Revenue Officer is empowered to deliver the possession accordingly.

With respect to the challenge to the constitutional validity of Section 7(1)(b) of the Migrant Act, such a challenge, the court said, is untenable in view of various decisions of the court, including the case titled Jagar Nath Bhari versus State.