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2005 DIGILAW 12 (JK)

Barkat Bibi v. Special Tribunal, J&K, Jammu

2005-02-08

S.K.GUPTA, S.N.JHA

body2005
Per S.K. Gupta, J. This appeal arises from the judgment and order of learned Single Judge dated 24.11.2004 passed in OWP No. 168/2001 by virtue of which the writ petition preferred by the appellant was dismissed. 2. Petitioner approached the writ court seeking a direction to quash the order of respondent No. 1 ( J&K Special Tribunal, Jammu ) dated 05.03.2001 by which the restoration order dated 02.02.1980 passed by the Custodian and order dated 16.02.1995 passed by Custodian General affirming the order of Custodian under section 8 of the Evacuees (Administration of Property) Act, have been set aside. 3. The dispute pertains to the devolution of the right of non-occupancy tenancy held by Jumma on the appellant-daughter on the death of the deceased- tenant who was killed in the disturbances of 1947. 4. The case of the appellant is that her father, Jumma was in cultivating possession of the State land aggregating 54 Kanals and 5 Marlas comprising survey Nos.683 and 696 located at village Maheen Sarkar, Tehsil Samba, District Jammu as non occupancy tenant prior to 1947. Jumma was killed at Miran Sahib in 1947. The land in issue came in cultivating possession of Behari Lal, predecessor- in-interest of respondents 4 to 8, Udhay Ram, Kaiser and Kashmiru Lal, which, according to them, allotted in their favour under Government Orders LB-7 and 578-C respectively. They continued to be in possession of the said land till evicted in pursuance of order dated 02.02.1980 passed by the Custodian under section 8 of the Evacuees (Administration of Property) Act (hereinafter, for short, referred to as `the EP Act ). The appellant, Barkat Bibi, claiming to be the sole surviving heir of Jumma and entitled to the possession of the land in issue as an owner, moved an application before the Custodian in the year 1979 seeking to denotify the land in question in stating that her father, Juma, held the said land as non-occupancy tenant. The appellant further claimed restoration of the possession of the property in stating that the said property was never notified under the EP Act. The appellant also moved the Revenue Authorities asserting her claim for vesting of proprietary rights over the land in issue being the daughter of Jumma in pursuance of Council Order No. 1234-C of 1939. The appellant further claimed restoration of the possession of the property in stating that the said property was never notified under the EP Act. The appellant also moved the Revenue Authorities asserting her claim for vesting of proprietary rights over the land in issue being the daughter of Jumma in pursuance of Council Order No. 1234-C of 1939. The claim of the appellant, however, came to be accepted by the Tehsildar, Samba, who held that Jumma, her father, being in cultivating possession of the land during the relevant period could be conferred with proprietary rights in terms of the aforesaid Council order on payment of prescribed Nazrana and production of State Subject. The Revenue Tehsildar further held that the appellant could succeed to the rights of her father being sole surviving successor and attested mutation No. 387 in conferring ownership right upon her in respect of the land in issue vide order dated 07.01.1979. This mutation, however, was challenged in appeal by the predecessor-in-interest of respondents 4 to 8 and other respondents before the Deputy Commissioner, Jammu, but the same was dismissed. Director, Land Records, Jammu before whom revision was preferred to assail the order of Deputy Commissioner, recommended the case of the appellant before him to the Financial Commissioner. The Financial Commissioner accepted the revision and set aside the mutation attested by the Tehsildar (Revenue) in favour of the appellant, vide order dated 22.12.1983. Aggrieved by the aforesaid order, the appellant approached the High Court by filing a writ petition, which came to be dismissed. The appellant also could not succeed in Letters Patent Appeal filed against and also Special Leave Petition there-from. 5. On the application of the appellant under section 8 of the Evacuee Property Act, 2006 for deletion of the land from E.P. list and restoration of the same to her, Custodian declared her to be entitled to the restoration of the possession of the land in issue and dispossessed the persons in possession of the said land and handed over the same to the appellant vide order dated 02.02.1980. This order was challenged in appeal by the respondents 4 to 8 and Udhaya Ram, Anant Ram, Kashmiru Lal and Mangoo Ram. The Custodian General held that the appellants have no locus to question the order of restoration and dismissed the appeal vide order dated 16.02.1995. This order was challenged in appeal by the respondents 4 to 8 and Udhaya Ram, Anant Ram, Kashmiru Lal and Mangoo Ram. The Custodian General held that the appellants have no locus to question the order of restoration and dismissed the appeal vide order dated 16.02.1995. This led to the filing of a revision before the J&K Special Tribunal, Jammu, against the order of the Custodian General, dismissing the appeal of the respondents. The orders of Custodian and Custodian General directing the restoration of the possession of the land to the appellant, were set aside by the J&K Special Tribunal in revision vide order dated 05.03.2001, which became the subject matter of challenge in writ petition before the learned Single Judge and the same stood dismissed vide order impugned in this letters patent appeal. 6. We have heard the arguments in extenso and perused the record meticulously. The main thrust of the argument put across by Mr. S. A. Salaria, appellants counsel is that the appellant being the sole surviving successor of Jumma, was entitled to inherit the right of non-occupancy tenant of her father after his death being owner in possession. His further submission is that the orders of the Custodian and Custodian General in directing the restoration of the land in issue to the appellant was in accordance with law and valid as the respondents being locals had no right to occupy the said land and retain its possession. 7 It is not in dispute that Jumma was a non occupancy tenant of the land in issue prior to 1947. Jumma died during the disturbances of 1947 at Miran Sahib. The question arises whether any proprietary right over the said land was conferred upon Jumma in view of Government Order No. 1234-C of 1939 before he was killed in 1947. There is no record produced by the appellant showing the conferment of such proprietary rights on Jumma in respect of land in dispute. Jumma was killed in Miran Sahib and, therefore, the question of his migration to Pakistan does not arise. The appellant was not in possession of the land in issue after the death of Jumma. The said land came to be occupied by the respondents and remained in its cultivating possession till were dispossessed by the Custodian vide order dated 02.02.1980. Jumma was killed in Miran Sahib and, therefore, the question of his migration to Pakistan does not arise. The appellant was not in possession of the land in issue after the death of Jumma. The said land came to be occupied by the respondents and remained in its cultivating possession till were dispossessed by the Custodian vide order dated 02.02.1980. This clearly shows that Jumma at the time of his death was a non-occupancy tenant of the land in issue. Then question arises as to whether right of non-occupancy tenant is a heritable right under the Tenancy Act. The order of the Tehsildar on mutation No. 387 was set aside by the Financial Commissioner vide order dated 22.12.1983 and writ petition filed to assail this order was dismissed. Letters patent appeal filed and further special leave petition preferred there-from were also dismissed. Thus, the appellant could not succeed in getting the proprietary rights over the land held by her father Jumma upto 1947 as non occupancy tenant. 8. Admittedly, the land in dispute is a State land. Jumma was a non occupancy tenant till 1947. After his death, the appellant-Barkat Bibi was not in possession of the said land till 1980, when it was restored to her after the possession was taken from the respondents in pursuance of the order of the Custodian. This clearly shows that the land was in cultivating possession of the respondents till 1980. This is also not the case of the appellant that she came in cultivating possession of the land immediately after her father-Jumma was killed in the disturbances of 1947. This also shows that the appellant got the possession of the land in pursuance of the restoration order of the Custodian dated 02.02.1980. This order of restoration of possession to the appellant was passed under section 8 of the Evacuees (Administration of Property) Act, under the impression that Jumma was the owner of the property and the appellant is successor in interest. This impression has been gathered from mutation No. 387 dated 07.01.1979 attested in respect of the land in favour of the appellant by the revenue agency in declaring Jumma to be the owner of the land and the appellant as successor- in-interest being his daughter. This impression has been gathered from mutation No. 387 dated 07.01.1979 attested in respect of the land in favour of the appellant by the revenue agency in declaring Jumma to be the owner of the land and the appellant as successor- in-interest being his daughter. It was during the currency of the appeal before the Custodian General when the aforesaid mutation of inheritance attested in favour of the appellant came to be set aside in revision by the Financial Commissioner. 9. As a consequence of setting aside of the mutation, the status of Jumma as owner was put to an end and the declaration in respect of the petitioner to be the sole successor to inherit his property ceased to exist. 10. It is not in dispute that Jumma never migrated to Pakistan and died at Miran Sahib (J&K State) in the year 1947 and as such the provisions of Evacuees (Administration of Property) Act, did not apply. The land in possession of Jumma prior to his death as non occupancy tenant was a State land. Barkat Bibi, his daughter, was never in cultivating possession of the land till 1980 when it was restored to her by the order of the Custodian dated 02.02.1980. In such event, the non-occupancy right of Jumma over the land came to be extinguished after his death and the property being not a custodian property, the Custodian General could not confer any proprietary rights on Barkat Bibi being his daughter. 11. Mr. Salaria, appellants counsel, strenuously urged that Barkat Bibi-appellant is entitled to inherit the property and her rights are governed by the provisions of the Tenancy Act. His further contention is that even non-occupancy rights are heritable under the provisions of sections 2(7) & 67 of the Tenancy Act. Section 2(7) of the Tenancy Act, reads as under:- "(7) "tenant" and "landlord" include the predecessors and successors-in-interest of a tenant and landlord respectively." 12. According to Mr. Salaria, the definition of a `tenant in the aforesaid provisions of the Act includes the successor of the tenant and, therefore, the tenancy at will is heritable. The contention of Mr. Salaria, in our opinion, is not tenable. The provisions of section 2(7) cannot be interpreted to impliedly mean tenancy-at-will is heritable. This provision only pertains to the rights and liabilities of the landlord and tenant arises out of a contract of tenancy. 13. The contention of Mr. Salaria, in our opinion, is not tenable. The provisions of section 2(7) cannot be interpreted to impliedly mean tenancy-at-will is heritable. This provision only pertains to the rights and liabilities of the landlord and tenant arises out of a contract of tenancy. 13. It was next contended by Mr. Salaria that the right of a tenant-at-will does not extinguish unless eviction order is passed by a competent authority under the Tenancy Act. 14. Section 46 of the Tenancy Act pertains to the ejectment of a tenant-at-will. In view of the admitted facts borne out from the record that Barkat Bibi was never in possession of the land after the death of Jumma, tenant-at-will, in 1947. She was restored possession for the first time in 02.02.1980 by the Custodian. For this simple reason the provisions of section 46 of the Tenancy Act, therefore, are not attracted to the present case. 15. Jumma, the father of the appellant, died in 1947. Appellant was never put in possession of the said land as successor-in-interest of Jumma. Barkat Bibi was came in possession of the said land only by the order of the Custodian under the belief that Jumma was the owner of the said land and the appellant-Barkat Bibi was the sole heir to inherit the property. The orders passed by the Custodian and Custodian General for restoration of possession to Barkat Bibi, when set aside by the Special Tribunal in revision, the possession had to be restored to the person from whom it was taken. In such circumstances, neither the Custodian had any authority to put the appellant in possession of the property not being the evacuee property, nor the appellant could retain the same. 16. The Tenancy Act does not protect the rights of tenant-at-will/non-occupancy tenant. As a matter of fact, there is no provision in the Tenancy Act in regard to the succession to the interest of non-occupancy tenant/tenant-at-will. Section 67 only protects the rights of a occupancy tenant in the land. For facility of reference, section 67 of the Tenancy Act reads as under:- "67. Succession to right of occupancy. -- (1) When a tenant having a right of occupancy in any land dies, the right shall devolve- (a) on his male lineal descendants, if any, in the male line of descent; Explanation. For facility of reference, section 67 of the Tenancy Act reads as under:- "67. Succession to right of occupancy. -- (1) When a tenant having a right of occupancy in any land dies, the right shall devolve- (a) on his male lineal descendants, if any, in the male line of descent; Explanation. -- "Male lineal descendant" includes a son formally adopted according to Hindu Law, and in accordance with any Acts in force in the State regarding such adoptions; (b) failing such male lineal descendants on- (i) his widow, or (ii) fathers widow or (iii) the widow of a male lineal descendant in the male line of descent, who predeceased the late tenant:" 17. Under the aforesaid provisions of the Tenancy Act, the daughter is not entitled to succeed to the occupancy rights of her father. It is only the male lineal descendant or a widow, who is permitted to succeed to the occupancy rights. So far as the non-occupancy of Jumma is concerned, after his death in 1947 at Miran Sahib, his rights stood abandoned as the appellant admittedly was never in cultivating possession of the land till 1980 when restored by the Custodian vide order dated 02.02.1980. 18. In the above view of the matter, we are of the firm view that the appellant had no right to occupy the land as successor-in-interest of Jumma after the mutation of inheritance attested in her favour has been set aside and possession has to be restored back to the persons from whom it was taken viz., the predecessor-in-interest of the private respondents. 19. Order of the learned Single Judge,in our view, does not suffer from any infirmity. 20. In the premises as aforesaid, the contentions raised by the counsel appearing for the appellant having failed, the appeal fails and is, accordingly, dismissed.