The High Court of Jammu & Kashmir confirms that co-sharers in Rule 5 Shamilat Land retain the right to obtain revenue extracts (Fards) and transact in their shares, even absent formal partition, provided pro-rata entitlement is respected. The Court applies and reaffirms long-standing precedents, providing strong binding authority on the rights of estate holders over Shamilat land in the region.
Summary
| Category | Data |
|---|---|
| Case Name | WP(C)/1238/2025 of Inhabitants cum Estate Holders of Village Khimber through Hilal Ahmad Bhat and Anr Vs Union Territory of J and K (Revenue) and Ors |
| CNR | JKHC010025222025 |
| Date of Registration | 27-05-2025 |
| Decision Date | 31-10-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | HON’BLE MR. JUSTICE JAVED IQBAL WANI |
| Court | High Court of Jammu & Kashmir and Ladakh at Srinagar |
| Bench | Single Bench: HON’BLE MR. JUSTICE JAVED IQBAL WANI |
| Precedent Value | Binding on subordinate courts in J&K |
| Overrules / Affirms |
|
| Type of Law | Land and Revenue Law (Shamilat/commons land, property rights, revenue procedure) |
| Questions of Law | Whether estate holders/co-sharers are entitled to obtain revenue extracts (Fards) for their share in Rule 5 Shamilat Land in the absence of formal partition, and whether restriction by authorities on issuing such extracts is legally valid. |
| Ratio Decidendi | The Court held that co-sharers in joint Shamilat property can require issuance of revenue extracts (Fards) relating to their shares and transact over their entitlement even in the absence of formal partition. Such restrictions imposed by revenue authorities, especially when the foundational ground is later disproven, are arbitrary and unjustified. The Court reaffirmed that the rights in Rule 5 Shamilat Land are equivalent to proprietary rights, and refusal to allow revenue extracts absent a formal partition cannot stand in law. The partition status does not prohibit alienation of individual share in Shamilat land, and any such transaction is valid subject to eventual partition. |
| Judgments Relied Upon |
|
| Logic / Jurisprudence / Authorities Relied Upon by the Court | The Court relied on existing High Court precedents that rights in Shamilat land are pro-rata proprietary rights vested in estate holders, which cannot be denied except by authority of law and due compensation. The Court emphasized that restriction was invalid as the very premise (doubt regarding mutation/authenticity) was found baseless by the detailed inquiry. It accepted that in J&K, sale of undivided share in such land is legally permissible and recognized. |
| Facts as Summarised by the Court | The controversy revolved around Govt. order No. 03-FC(Rev) of 2024, which put in abeyance earlier orders allowing estate holders of Village Khimber to obtain revenue extracts for Rule 5 Shamilat Land, pending an inquiry into the authenticity of underlying mutations and partitions. Petitioners alleged arbitrary and indefinite denial of their right to use, alienate, and obtain records about their pro-rata share in the land, while authorities claimed the need for enquiry and possible irregularities. The Deputy Commissioner’s inquiry found no substance in the doubts raised, confirming the genuineness of the prior partition and mutation proceedings. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts and revenue authorities in Union Territory of Jammu and Kashmir |
| Persuasive For | Other High Courts and revenue tribunals dealing with Shamilat/commons land and co-sharer rights |
| Follows |
|
What’s New / What Lawyers Should Note
- The Court clarifies that co-sharers in Rule 5 Shamilat Land are entitled to revenue extracts (Fards) and may legally transact their pro-rata share, even in the absence of a formal partition.
- Any continued restriction on issuance of revenue extracts, once the foundational grounds are disproved in enquiry, is arbitrary and violates constitutional property rights.
- Legal practitioners can rely on this decision to challenge arbitrary restrictions on use, alienation, or mutation of Shamilat land when their client’s entitlement is undisputed and pro-rata.
- The deduction for land occupied by government departments must be factored while issuing such extracts, but does not erode the entitlement principle.
- The judgment strongly reaffirms that rights in Shamilat Land are identical to proprietary land and cannot be denied without lawful basis and due compensation.
Summary of Legal Reasoning
- The Court examined the sequence of government orders, the basis for imposing restriction (doubts about mutation authenticity and partition), and the ultimate findings of the Deputy Commissioner’s inquiry.
- It found that the Deputy Commissioner’s inquiry was thorough, categorical, and aligned with prior committee reports as well as the Divisional Commissioner’s conclusions; the foundational concerns proving chimerical.
- Drawing from established High Court precedents (Hamida Begum, Freena Boga, Kuldeep Raj), the Court reaffirmed that estate holders’ rights in Shamilat land are proprietary, pro-rata in nature, and co-sharers can sell their vested share even before formal partition.
- The Court rejected the respondents’ plea that lack of formal partition or “Bai Chara” (mutual understanding/allocation) could nullify or postpone such enjoyment of rights, citing both fact (official stand in connected petitions) and law.
- Recognized constitutional property rights implications when revenue authorities continue restrictions absent any valid ground.
- Ordered revenue authorities to issue Fards allowing estate holders to deal with their share, provided that their application pertained to their actual entitlement and possession, and deducting government-occupied land from the total divisible quantum.
- Closure of contempt proceedings was also linked to the merits of the substantive petitions being decided.
Arguments by the Parties
Petitioner
- Challenged the indefinite bar on issuance of revenue extracts for Rule 5 Shamilat Land, claiming it was arbitrary and legally unsustainable.
- Emphasized that the Deputy Commissioner’s enquiry found no factual basis for restricting issuance.
- Pointed out that government had previously admitted the distribution/allotment was via mutual understanding (“Bai Chara”) and was complete, contradicting current claims.
- Noted selective issuance of extracts and sale deeds for some holders had occurred, showing discrimination.
Respondent
- Justified the restrictions on the basis of need for comprehensive inquiry into authenticity of revenue records/mutations.
- Contended that “Bai Chara”/mutual distribution of land was incomplete, which justified withholding revenue extracts until clarity was obtained.
- Pointed to reduction in available Shamilat land due to government occupancy, affecting entitlement calculations.
- Asserted the Financial Commissioner’s powers to issue the impugned order and direct further inquiry.
Factual Background
The case arose from a dispute regarding the right of estate holders of Village Khimber to obtain revenue extracts (Fards) in respect of Rule 5 Shamilat Land, specifically in Survey Nos. 742, 743, and 747. A government order dated 24.04.2024 restrained such issuance pending inquiry into the validity of partitions/mutations, citing discrepancies alleged in an earlier official report. Petitioners contended they held undisputed pro-rata entitlement and the order unfairly barred their property rights. The Deputy Commissioner was tasked to investigate, and his report ultimately validated the genuineness of the prior partition and allocations.
Statutory Analysis
- The Court interpreted Rule 5 of the Shamilat Rules and relevant provisions governing co-sharer rights in joint property under land/revenue law.
- It emphasized, relying on judicial precedent, that rights arising from Shamilat Land mutations/partitions are proprietary in nature, vesting without need for formal partition.
- The Court referenced constitutional property rights, noting denial of usage or enjoyment by administrative fiat was impermissible in the absence of legal basis.
Dissenting / Concurring Opinion Summary
No dissenting or concurring opinions are present in the judgment.
Procedural Innovations
- The petitions were heard and disposed together—one representative and one in individual capacity—on account of identical subject matter and reliefs.
- The Court explicitly permitted closure of contempt proceedings, with liberty to revive in future if necessary, depending on compliance.
Alert Indicators
- ✔ Precedent Followed – Existing law affirming co-sharer rights in Shamilat land, and right to transact and obtain revenue extracts even absent formal partition, is reaffirmed and applied.