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2004 DIGILAW 133 (JK)

Gori Shanker v. Mangoo Ram

2004-05-01

S.N.JHA, Y.P.NARGOTRA

body2004
Per : Nargotra J. This Letter Patent Appeal arises from the order of learned Single Judge dated 16.2.1999 passed in OWP No.597/1990, whereby the order passed by Special Tribunal Jammu remanding the case back has been upheld. 2. The relevant facts of the case briefly stated are that Ishru was the protected tenant of the land measuring 16 kanals and 8 marls comprising in khasra No.195 situated at village Kalar-himti Tehsil Udhampur. He died somewhere in 1964. After his death his tenancy rights came to be inherited by his minor son Ashok Kumar and entry to this effect was recorded on 22.4.1971 by Tehsildar Udhampur. In khasra girdawari land was recorded in actual cultivation of Gouri Shankar appellant, the real uncle of Ashok Kumar minor. This order of Tehsildar was challenged in appeal before the collector where Gouri Shanker appellant admitted that he was cultivating the land on behalf of his minor nephew Ashok Kumar. The Collector by his order dated 18.3.1972 directed that Ashok Kumar be entered as tenant in actual cultivating possession of the disputed land. Thus the said Ashok Kumar was held to be tenant in actual cultivating possession. 3. It appears that the respondent Mangoo had purchased the disputed land from the owners thereof. On 11.4.1974 Naib Tehsildar after making some enquiry attested a mutation in favour of the respondent Mangoo and recorded him to be in actual cultivating possession of the disputed land since kharif 1971 for the first time. 4. The mutation order dated 11.4.1974 was challenged in appeal by minor Ashok Kumar through his uncle Gouri Shanker. The Deputy Commissioner Udhampur (Collector) allowed the appeal by his order dated 16.5.1974, set aside the order of Naib-Tehsildar on the ground that order of vesting of tenancy rights in favour of Ashok Kumar after the death of his father Ishru had become final and therefore entry of his cultivating possession ought to have continued in his favour. The respondent challenged the order of Collector before Financial Commissioner in second appeal but remained unsuccessful, therefore, he filed revision petition before the J&K Special Tribunal Jammu. 5. Learned Special Tribunal by its order dated 03.7.1990 remanded the case back to the Collector for de-novo enquiry and this order of the Tribunal was the subject matter of challenge in OWP No.597/90. 6. Some more facts need be noticed. 5. Learned Special Tribunal by its order dated 03.7.1990 remanded the case back to the Collector for de-novo enquiry and this order of the Tribunal was the subject matter of challenge in OWP No.597/90. 6. Some more facts need be noticed. Before the passing of the mutation order dated 11.4.1974 by the Naib-Tehsildar whereby the respondent for the time was recorded to be in cultivating possession of the land, the respondent on 4.5.1973 instituted a civil suit against Gouri Shankar appellant and Ashok Kumar for seeking restoration of possession of the suit land, on the ground that Ishru was sub-tenant under Sarswati an occupancy tenant and after death of Ishru his tenancy stood terminated meaning thereby that Ashok Kumar son of Ishru could not have inherited the tenancy rights and therefore mutation recording possession of Ashok Kumar was illegal. Learned Sub-Judge Udhampur by his order dated 10.8.1973 held the suit abated in view of the provisions of J&K Agrarian Reforms Act for the reason that (plaintiff) respondent was out of possession on 1.9.1971 the crucial date and therefore his rights if any in the land stood extinguished. Learned Sub-Judge observed: -- "From the perusal of the plaint and the order of the Dy.Commissioner (Collector) dated 18.3.1972 it transpires that the defendant No.2 is in occupation of the suit land while the plaintiff was out of possession on 1.9.1971. In view of the section 3 of the Act the right of ownership of any person extinguishes if the land is not held by him in his personal cultivation on the first day of September 1971. Section 36 of the said Act bars the jurisdiction of the civil court to settle, decide or deal with any question or to determine any matter which is by or under this Act or the rules made thereunder required to be settled decided or deal with or to be determined by the officer or authority appointed under this Act or the rules made thereunder. The plaintiff having extinguished his right in view of section 3 of J&K Agrarian Reforms Act shall lead to the abatement of the suit u/s 52 of the said Act." The respondent did not challenge the order of the civil court any further. 7. The plaintiff having extinguished his right in view of section 3 of J&K Agrarian Reforms Act shall lead to the abatement of the suit u/s 52 of the said Act." The respondent did not challenge the order of the civil court any further. 7. The other aspect of the matter is that during the pendency of the revision before the Special Tribunal Ashok Kumar the son of Ishru died unmarried and issueless so in his place the appellant Gouri Shanker was substituted as respondent being the sole legal heir of Ashok Kumar and also being a necessary party as after the death of Ashok Kumar mutation No.166 was attested in favour of Gouri Shanker in respect of the estate left by Ashok Kumar on 13.9.83. 8. Now reverting back to the order of Special Tribunal we find that before the Tribunal two issues had arisen for consideration. The first issue was whether the Collector (Dy.Commissioner) Udhampur and Financial Commissioner were right in setting aside the order of Naib-Tehasildar recording the respondent Mangoo to be in cultivating possession of the land in dispute in kharif 1971 by holding that Ashok Kumar instead ought to have been recorded to be in cultivating possession of the land on the said date. The second question was if Ashok Kumar was in possession in kharif 1971 whether the appellant would be entitled to succeed to the rights if any flowing from such possession in favour of deceased Ashok Kumar. 9. On the first question learned Tribunal came to the view that Dy.Commissioner and Financial Commissioner fell in error by setting aside the mutation order passed by the Circle Officer (Naib-Tehsildar) solely on the ground that he had failed to abide by the order of the Collector dated 18.3.1972. 10. We are not in agreement with the reasoning advanced. Ashok Kumar stood recorded in cultivating possession as tenant. The respondent was asserting his own cultivating possession as on 1.9.1971. Could he be in such possession was the question to be considered for supporting the order of Naib-Tehsildar? The order of civil court dated 10.8.1973 was available on the record before tribunal, which was staring at the face of the respondent, besides the plaint of respondent No.1. From the order it was apparent that the respondent had himself pleaded that he was out of possession of the suit land till the filing of the suit on 4.5.1973. The order of civil court dated 10.8.1973 was available on the record before tribunal, which was staring at the face of the respondent, besides the plaint of respondent No.1. From the order it was apparent that the respondent had himself pleaded that he was out of possession of the suit land till the filing of the suit on 4.5.1973. Learned Tribunal did not appreciate this position correctly and even the following finding returned by the Financial Commissioner appears to have not been noticed: -- "This has rightly been observed by the Collector, finallyestablished the possession of the respondent over the disputed land right from the death of his father Ishru which took place earlier than kharif 1971 whose protected tenancy rights had legally been inherited by Ashok Kumar (respondent). The order of the Collector Udhampur dated 18.3.1972 holding the respondent (Ashok Kumar) entitled to protected tenancy rights of the disputed land after the death of his father Ishru has become final as it was never challenged by any party. With regard to possession, there is and can be, no dispute that it is with the respondent, in as much as for recovery of it the appellant owner lodged a civil suit also." 11. Learned Financial Commissioner had found the order of Naib-Tehsildar bad in law not only because it was in disregard to the order of Collector but also so on merits of the case in the circumstances of the case. The fact that respondent was out of possession emerges out simply from the fact of filing of the suit for recovery of possession by the respondent against the appellant and Ashok Kumar to which order of the civil court is itself a witness. The filing of the civil suit is not being denied. If the plaint required proof for its admimissibility, the certified copy of the order of civil court did not and it could be legally taken into consideration without formal proof. 12. Learned Tribunal was therefore not right in setting aside the orders of Collector and Financial Commissioner. Learned Single Judge was also therefore not right in upholding the order of the tribunal as it pertains to the orders of the Collector and Financial Commissioner. Neither the Tribunal nor the learned Single Judge therefore ought to have remanded the case for de-novo enquiry on the question of cultivating possession as on 1.9.1971. Learned Single Judge was also therefore not right in upholding the order of the tribunal as it pertains to the orders of the Collector and Financial Commissioner. Neither the Tribunal nor the learned Single Judge therefore ought to have remanded the case for de-novo enquiry on the question of cultivating possession as on 1.9.1971. In our opinion deceased Ashok Kumar had rightly been held to be in cultivating possession of the land in kharif 1971. Therefore, what remained to be determined was what rights Ashok Kumar deceased would have acquired on account of his being in cultivating possession of the land in kharif 1971 under the provisions of Agrarian Reforms Act and the further question would be, if Ashok Kumar is found entitled to any right under the Act whether such right can be inherited by the appellant Gouri Shanker after the death of Ashok Kumar. 13. Learned counsel for the respondent Mr.Thakur argues that assuming Ashok Kumar was in possession in kharif 1971,he does not stand declared as yet prospective owner or owner u/ss. 4&8 of the Agrarian Reforms Act. Therefore, he continued to be a protected tenant and therefore, his interest in the land would devolve in accordance with sec.28 of the said Act read with sec.67& 68 of the Tenancy Act. The appellant Gouri Shanker being the real brother of Ishru, the father of Ashok Kumar cannot inherit the tenancy for the reason that their father (common ancestor) was not in possession of the land and therefore land would revert back to the owner i.e. the respondent. 14. The contention of Mr.Singh learned counsel for the appellant is that by coming into operation of Agrarian Reforms Act the rights of the owner not in possession of the land in kharif 1971 stood extinguished and the tenant in possession became entitled to ownership rights under sections 4&8. According to him the said Ashok Kumar being in cultivating possession in kharif 1971 has to be deemed to be an owner and after his death his interest in the land is to devolve under ordinary law of succession governing the deceased. 15. It be seen that section 4 of Agrarian Reforms Act extinguishes the rights of the owners not in cultivating possession as in kharif 1971 and vests the land in the State. 15. It be seen that section 4 of Agrarian Reforms Act extinguishes the rights of the owners not in cultivating possession as in kharif 1971 and vests the land in the State. Section 4 reads as under: "4-Vesting in the State of rights in land not held in personal cultivation-(1) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it personally in kharif 1971,shall be deemed to have extinguished and vested in the State, free from encumbrances, with effect from the first day of May 1973." 16. The section opens with a non-abstante clause and thus incorporates an exception to the general law and declares the extinguishment of all rights, title and interest of any person in the land not cultivating it personally in kharif 1971 and vests the same in the State, free from encumbrances w.e.f. Ist day of May 1973. Such extinguishment is to be followed by a mutation to be attested under Chapter IV of Agrarian Reforms Rules 1977 made by the Government in exercise of the power vested u under section 40 of J&K Agrarian Reforms Act 1976. Rule 12(2) provides for the recording of the tiller of the land who was cultivating the land in kharif 1971 as prospective owner in the tenants column subject to his satisfying the conditions set out in the rule itself. In case the tiller who was personally cultivating the land in kharif 1971 has died before or after the stipulated date i.e. Ist May 1973 then who should be recorded as prospective owner, provision is made in this behalf in the Rule 12 itself. 17. In the present case, Ashok Kumar was the person who was cultivating the land in kharif 1971. He has died after the stipulated date 1.5.1973 and the fact of the matter is mutation in terms of Rule 12 read with section 4 is yet to be attested. The question whether the rights of Ashok Kumar can be inherited by the appellant has to be gone into at the time of attestation of mutation u/s 4 of the Agrarian Reforms Act read with rule 12 and other relevant rules. Therefore, we feel it would not be proper at this stage for us to go into the said questions. The question whether the rights of Ashok Kumar can be inherited by the appellant has to be gone into at the time of attestation of mutation u/s 4 of the Agrarian Reforms Act read with rule 12 and other relevant rules. Therefore, we feel it would not be proper at this stage for us to go into the said questions. We leave these questions open for determination by the competent officer who is empowered to attest the mutation. 18. For the reasons stated above, we allow the appeal, set aside the order of learned Special Tribunal and maintain the orders of the Collector Dy.Commissioner Udhampur and Financial Commissioner Jammu and remand the case to Tehsildar Agrarian Reforms Udhampur for proceeding under Chapter IV of the Agrarian Reforms Rules for attestation of mutation under sec.4 and if need be for attesting mutation u/s 8 of Agrarian Reforms Act by following the procedure prescribed by law in favour of a person who may be found entitled thereto.