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2009 DIGILAW 425 (JK)

Gouri Shanker v. Mangu Ram

2009-08-27

A.K.Shan

body2009
1. Against the order dated 30.6.2005 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms Udhampur accepting the appeal filed before him by respondent Mangu Ram, this revision petition has been filed raising substantial question of law and public importance. 2. As per the record Sant Ram residing in village Dhanda Paddar Tehsil Udhampur had two sons Ishru and Gouri Shanker. Ishru was the protected tenant of the land measuring 16 kanals 8 marlas comprising khasra No: 195 situated in village Kaller, Hamiti Tehsil Udhampur. He died somewhere in 1964. After his death his tenancy rights came to be inherited by his minor son Ashok Kumar. He was recorded as protected tenant in khairf 1971. He died in the year 1982-83.Tthe land became the subject matter of dispute between his uncle Gouri Shanker, the petitioner herein and the respondent. The matter went to the Hon'ble High Court. The dispute was as to whether in Kharif 1971 it was Ashok Kumar or the respondent, in possession of disputed land. The Hon'ble Division Bench vide judgment dated 1.5.2006 in LPA filed by petitioner Gouri Shanker against the respondent and ors., held that it was Ashok Kumar who was in possession of the disputed land in Kharif 1971. It was also observed by the Hon'ble Division Bench that Ashok Kumar died after the stipulated date 1.5.1973.Till the disposal of the LPA, mutation under Section 4 read with Rule 12 of the Agrarian Reforms Act and Rules made thereunder had no so far been attested. Whether the rights of Ashok Kumar could be inherited by petitioner Gouri Shanker the uncle of Ashok Kumar, was left open to be decided by the competent officer at the time of attestation of mutation under Section 4 of the above Act read with Rule 12 of Agrarian Reforms Rules. 3. In this background the case was remanded by the Hon'ble Division Bench to Tehsildar Agrarian Reforms Uhdampur for proceeding under Chapter IV of the Agrarian Reforms Rules for attestation of mutation under Section 4 and if needed to attest mutation under Section 8 of the said Act by following the procedure prescribed by law in favour of a person who may be found entitled thereto. 4. 4. The Tehsildar Agrarian Reforms Udhampur after holding inquiry attested mutation No:633 dated 20.11.2004 under Section 4 of the above Act declaring deceased Ashok Kumar as prospective owner of the disputed land. In the said mutation the death of the deceased Ashok Kumar was treated by Tehsildar somewhere in 1972. He pressed into service Rule 12 of the Agrarian Reforms Rules in declaring deceased Ashok Kumar as prospective owner. 5. Aggrieved by the order passed on mutation referred above, respondent Mangu Ram preferred an appeal before Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms Udhampur (here-in-after Commissioner), without arraying petitioner Gouri Shanker. The State was made only the respondent. 6. During the pendency of the appeal petitioner Gouri Shanker filed an application for being arrayed as party which was not decided immediately but decided in the final order passed on 30.6.2005. By this order the application was dismissed on the ground that petitioner could not legally inherit property of deceased Ashok Kumar as he was covered under Section 67 (5) of The Tenancy Act. The Commissioner also held that deceased Ashok Kumar had left no heir as mentioned in sub section (1) of Section 68 of the tenancy Act so his right of occupancy has extinguished. 7. It was further held that deceased Ashok Kumar died prior to 1.5.1973 and mutation was attested by Tehsildar Udhampur without application of mind in favour of a deceased person. 8. In this background the appeal was accepted and order passed by Tehsildar Udhampur in mutation No: 633 was set aside which has been assailed in the present petition. 9. The impugned order has been assailed on the following grounds:- That despite categorical finding of the Hon'ble High Court that Ashok Kumar has died after 1.5.1973 the Tehsildar and the Commissioner have held that he died prior to 1.5.1973 only to help the respondent to get illegal benefit by becoming the owner of the land. The Tehsildar without any evidence has declared that Ashok Kumar died prior to 1.5.1973 which out rightly is against the finding of the Hon'ble High Court. 10. The appellate court before which the petitioner had filed application for impleadment as petitioner has been dismissed thereby denying him the opportunity to agitate the matter before higher forum. 11. That petitioner being the uncle of Ashok Kumar is entitled to the ownership right of the land by succession. 12. 10. The appellate court before which the petitioner had filed application for impleadment as petitioner has been dismissed thereby denying him the opportunity to agitate the matter before higher forum. 11. That petitioner being the uncle of Ashok Kumar is entitled to the ownership right of the land by succession. 12. In this case the respondent has remained absent as well as his counsel for pretty long time and as such I have heard the Ld. Counsel for the petitioner and examined the record minutely. 13. The learned counsel for the petitioner re-iterated all the grounds adopted in the memo of appeal and has inter alia submitted that both the Tehsildar and the Commissioner despite the clear admission made by the respondent before the Commissioner and in the light of the findings of the Hon'ble High Court, that Ashok Kumar has died somewhere in 1982-83, have dare-devilry held that Ashok Kumar had died prior to 1.5.1973 just to bestow undue benefit upon the respondent. 14. As per record the land in question under survey No: 195 measuring 16 kanals 8 Marlas was purchased by respondent from some Durgi Devi in the year 1970. The land was already in possession of Ishru and after his death his son Ashok Kumar as protected tenant till 1971 and thereafter till the death of Ashok Kumar some where in 1982-83. 15. It is admitted case of the parties that Ashok Kumar died without leaving beyond any issue as he had never married during his life time. 16. As already noticed here-in-above during number of round of litigations, the parties were before the Hon'ble Division Bench. The dispute between the parties was as to the person who was in possession of land in Kharif 1971 and the right of inheritance/succession after the death of Ashok Kumar. 17. The Hon'ble High Court has categorically held that Ashok Kumar was cultivating the land in Kharif 1971 till his death in the year 1982-83 as protected tenant. The Hon'ble High Court had remanded the matter back to Tehsildar Udhampur to decide the question of inheritance/succession of deceased Ashok Kumar. 18. So far rule of succession and inheritance of a tenant cultivating land in Kharif 1971 and after his death thereafter is concerned these are provided in Agrarian Reforms Rules 1977. The specific rule is Rule 12. The Hon'ble High Court had remanded the matter back to Tehsildar Udhampur to decide the question of inheritance/succession of deceased Ashok Kumar. 18. So far rule of succession and inheritance of a tenant cultivating land in Kharif 1971 and after his death thereafter is concerned these are provided in Agrarian Reforms Rules 1977. The specific rule is Rule 12. This Rule has set 1st day of May 1973 as crucial date for deciding the question of inheritance of the tenant. The succession following the death of tenant before 1.5.1973 and thereafter is not identical as per said rule. 19. In the present case the Tehsildar and the Commissioner have decided the matter by holding that Ashok Kumar had died prior to 1.5.1973 which is incorrect and against the findings of the Hon'ble High Court wherein it has been categorically held that deceased Ashok Kumar died after 1.5.1973. Even the respondent had admitted this fact before the appellate court but the appellate court still had the audacity of holding that deceased Ashok Kumar died prior to 1.5.1973. Thus the matter has not been decided keeping in view the time of the death of the deceased which has resulted in miscarriage of justice. 20. In this background both the orders passed by Tehsildar and appellate court are required to be set aside so that proper order is passed in presence of the parties and in accordance with Rule 12 supra by keeping in account the time of the death of deceased Ashok Kumar. 21. Accordingly the order passed by Tehsildar Udhampur challenged before the appellate court and the order of the appellate court impugned in this revision petition are set aside. The case is remanded back to Tehsildar Udhampur to pass fresh order in the light of the observation made here-in-above with reference to the time of death of deceased Ashok Kumar, in presence of both the parties. 22. Record of the court below be sent back and file of this Tribunal be consigned to record after due compilation.