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2010 DIGILAW 379 (JK)

Tara Chand v. State

2010-07-08

Sunil Hali

body2010
1. The petitioners claim to be protected tenants of land falling under survey Nos. 83, 84, 85, 86, 87 and 88, situated at village Arazi Samba, Tehsil Samba. In exercise of the powers vested under Sub Section(2) of the Section 15(A) of the Jammu and Kashmir Tenancy Act, 1980, the Government confirmed the title of protected tenancy on all the tenants except occupancy and such fixed term tenants as hold Maliari or vegetable growing land. Every such protected tenant was recorded by adding the words "Mazaria Muhafiz" against his name. Subsequently, Government passed a General Order No. LCB-8/C of 1957 dated 15.11.1957, whereby the persons who were in cultivating occupation of the land held by them on 9.12.1955, were liable to be confirmed the status of protected tenants. In pursuance to this, petitioners’ names were recorded in the record of rights of 1959-60. 2. A dispute was raised by the respondent-Dharamarth Trust in this behalf by stating that petitioner no. 1 was the servant of the Trust and he managed to get his and his brothers names recorded as protected tenants. On coming to know that petitioners were recorded as protected tenants, the respondent-Dharamerth Trust applied for correction of the entries in the relevant revenue record, on the basis of which, Tehsildar, Samba vide his order dated 20.10.1972 passed on Fardpartal ordered that petitioners be entered as "Gair Maurousi Billa Lagan bewaja lailmi Malikan" instead of "Gair Maurousi Muzarin Mahfooz". This order of the Tehsildar has not been challenged by the petitioners. Subsequently, Tehsildar, Samba changed this entry vide his order passed on Mutation No. 191 dated 17.11.1981 and recorded the petitioners as protected tenants. 3. A review was preferred against the order passed by the Tehsildar, Samba on Mutation No. 191 dated 17.11.1981. The said order was revised vide order dated 20.6.1984, whereby petitioners were ordered to be entered as protected tenants on payment of rent @ = of the produce and the petitioner was recorded as paid servant of the Trust. 4. Aggrieved by this order, a revision was preferred by the respondent-Dharamerth Trust before the Director, Land Record with powers of Divisional Commissioner, who vide its order dated 31.7.1986 set aside the entries and held that the change of entries in favour of the petitioners is fishy and has been manipulated by petitioner no. 1 without the knowledge and consent of the Trust. 5. 1 without the knowledge and consent of the Trust. 5. A reference was accordingly made to the Financial Commissioner, Jammu, who while disagreeing with the reference accepted the same to the extent that the entries made in the revenue record in favour of the petitioners, which are not in consonance with the entries made in Jamabandi of 1959-60 shall stand set aside and directed that the revenue record be prepared in terms of the entries contained in Jamabandi of 1959-60. 6. Feeling aggrieved of the above said order, the respondent-Dharamerth Trust filed a writ petition bearing no. OWP No. 826/1995 before this court. This court vide its order dated 14.12.1999 set aside the order of Financial Commissioner and remanded the case back to him for fresh orders. Accordingly, the learned Financial Commissioner accepted the recommendations made by the Director, Land Records and set aside the order passed by the Tehsildar, Samba on mutation no. 191. It is, in these circumstances, the present writ petition has been filed by the petitioners. 7. Grievance set out by the petitioners in this writ petition is that they have been recorded as protected tenants in Jamabandi of 1959-60 and became beneficiary of the Government Order No. LCB-8/C of 1957 dated 15.11.1957, whereby they were declared as protected tenants. They were held to be in cultivating occupation of the land held by them on 9 December, 1955 and on the basis of which entries were recorded in their favour in the revenue record and the same cannot be changed by effecting correction in the mutation. 8. On the other hand, stand of the respondents is that the land is owned by the Dharmarth Trust and petitioner No. 1, who was the servant of the Dharmarth Trust, got his and his brothers names incorporated in the revenue record as protected tenants in connivance with the official respondents without knowledge and consent of the Trust. Further contention of the respondents is that while recording the petitioner as protected tenants, procedure as envisaged under rule has not been followed. 9. I have heard learned counsel for the parties and perused the record. 10. It is not in dispute that the petitioners have been recorded as protected tenants in record of rights of 1959-60. Further contention of the respondents is that while recording the petitioner as protected tenants, procedure as envisaged under rule has not been followed. 9. I have heard learned counsel for the parties and perused the record. 10. It is not in dispute that the petitioners have been recorded as protected tenants in record of rights of 1959-60. Section 31 of Land Revenue Act contemplates that the entries made in record of rights shall be presumed to be true until the contrary is proved. Section 32 of the Land Revenue Act provides remedy for questioning the entries made in record of rights. For reference, Section 32 of the said Act is quoted as under: "32. Suit for declaratory decree by person aggrieved by an entry in a record. (1) if any person considers himself aggrieved by an entry in a record of rights [ he may institute a suit before the Collector) Deputy Commissioner)] for the correction of the record, and the possession of the right claimed if he is not in possession thereof, with in one year (two years in the case of Frontier District of Gilgit and Ladakh) from the date of publication of the record of the distribution of the assessment under Section 49, sub-section (1) (2) If any person consider himself aggrieved by an entry in an annual record, [he may institute a suit before the Collector (Deputy Commissioner)] within the period prescribed by the limitation Act No. IX of 1995 for correction of the record and the possession of the right claimed if he is not in possession thereof or for declaration of his right if he is in possession thereof: Provided that, nothing in this sub-section shall entitle any person to bring a suit for the correction of the records of rights of a preceding Settlement after the period prescribed for such in sub section)1) has expired. (3) Nothing in this section shall be a bar to a suit by a tenant, to contest his liability to ejectment on the ground that he is an occupancy tenant under Section [7-A (1) and 50(7)] of the Jammu and Kashmir Tenancy Act, 1980." 11. For questioning the correctness of the entries made in record of rights, protection is provided under the aforesaid Section. For questioning the correctness of the entries made in record of rights, protection is provided under the aforesaid Section. It contemplates that a person aggrieved by the entries has to file a suit before the Collector for correction of the record within a period of one year from the date of publication of records of the distribution of the assessment under Section 49, Sub Section (1). It clearly emerges that after invoking provision of Section 32 of the Act, the entries in records of rights can be questioned only by filing a declaratory decree before the Collector. By effecting change in Girdawari, the entries recorded in record of rights cannot be unsettled. The change effected in revenue record through Fardpartal is patently wrong and based on no law. As already stated herein above the correction in the record of rights can only be made by taking recourse to Section 32 of the Land Revenue Act and not by effecting change in Girdawari. 12. Since the respondents have not taken recourse to Section 32 of the Land Revenue Act, the change made in the Girdawari will not take away the right of the petitioners as protected tenants. 13. In view of the above, this petition is allowed order passed by the Financial Commissioner, Jammu, dated 04.11.2001 is set aside.