Jammu & Kashmir High Court
Biaso Devi And Ors vs Santosh Kumari And Ors on 3 August, 2017
Bench: Alok Aradhe, Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
LPAOW No. 71/2006
MP No. 86/2006
Date of decision: 03/08/2017
________________________________________________________
Biaso Devi & ors. Vs. Santosh Kumari and ors.
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Hon'ble Mr. Justice Sanjeev Kumar, Judge.
Appearing counsel:
For Appellant(s) : Mr. O.P.Thakur Advocate.
For Respondent(s) : None.
(i) Whether to be reported in Yes.
Press/Journal/Media
(ii) Whether to be reported in Yes.
Digest/Journal
________________________________________________________
Sanjeev Kumar, J:
1. In this intra Court Appeal, the appellants, who are the
legal heirs of original appellant Sh. Hans Raj, have called in
question the Judgment dated 17.10.2006 passed by the
learned Single Judge.
2. Before adverting to the grounds of challenge urged by
the appellants, it would be appropriate to refer to the facts of
the case.
3. The respondents in this Appeal were owners of land
measuring 17 kanals 06 marlas comprised in Khasra No. 467
(11 Kanal 02 marlas) and Khasra No. 479 (06 Kanals 04
-
_________________________________________________________________ LPAOW No. 71/2006 Page 1 of 13 marlas) situated in village Gool Tehsil and District Jammu. In the year 1960, the said land was given to the appellants on lease basis (Patta Nama). The lease deed /Patta Nama was executed in the year 1960 on payment of rent of Rs. 230/- for a period of three years which expired on 15 th Har 2021 BK. On the expiry of the lease period stipulated in the first lease deed, another lease deed was executed and the period of tenancy was extended from 15th Har, 2021 BK to another period of three years. This period expired on 15th Har, 2024. On expiry of aforesaid period, another Patta Nama was executed whereby the lease period was extended from 15th Har, 2024 to 15th Har, 2027. It may be stated that 15th Har 2027 corresponds to 27.06.1970. It appears that on the expiry of the lease period, the respondents called upon the appellants to hand over the possession of the land, as the lease period under which the appellants had been granted the tenancy had expired. The original appellant did not hand over the possession of the land to the respondents, thereupon, a notice was served by respondents which was followed by a civil suit for restoration of possession. The suit was instituted in the year 1970 and decided by the learned Munsiff, Jammu on 21.11.1972. It was held that the land held by the appellants __________________________________________________________________ LPAOW No. 71/2006 Page 2 of 13 was on lease basis and, therefore, the relationship of lessor and lessee existed between the parties. The Court further ruled that in view of the relationship of the parties as landlord and tenant, the Court had no jurisdiction to entertain the suit. The findings of learned Munsiff were assailed by the respondents in an Appeal before the Sub-Judge (Chief Judicial Magistrate), Jammu. During the pendency of the Appeal, J&K Agrarian Reforms Act, 1972 which was subsequently replaced by J&K Agrarian Reforms Act, 1976 came into force and taking note of the provisions of Agrarian Reforms Act, the learned Sub-Judge (CJM) decided the Appeal by holding that the jurisdiction of civil court was barred under the express provisions of Agrarian Reforms Act, 1972. A Revision was preferred against the aforesaid order of Sub-Judge by the respondent, which was dismissed by this Court vide order dated 17th April, 1976. In the meanwhile, J&K Agrarian Reforms Act, 1976 (hereinafter called 'the Act') came into force. The Naib Tehsildar, Jammu vide Mutation No. 879 dated 20th September, 1981, declared the original appellant as prospective owner under Section 4 of the Act.
__________________________________________________________________ LPAOW No. 71/2006 Page 3 of 13
4. The aforesaid order of mutation No. 879 was challenged by the respondents before the Commissioner Agrarian Reforms, Jammu. The appeal was allowed and the order of mutation No. 879 dated 20.09.1981 was set aside by order dated 24.02.1983 and the matter was remanded to the Tehsildar Agrarian Reforms, Jammu for denovo inquiry. The Tehsildar, Agrarian Reforms, Jammu, however, did not conduct any inquiry and instead remitted the matter to the Additional Deputy Commissioner, Jammu who vide order dated 20.06.1986 held that the relationship of landlord and tenant between the parties existed and that the original appellant was the tenant. The aforesaid order was sent to the Tehsildar for further necessary action as warranted under the Agrarian Reforms Act. The aforesaid order was also challenged by the respondents in Appeal before the Joint Financial Commissioner who was vested with powers of Commissioner Agrarian Reform, Jammu. The appeal was allowed and order of Additional Deputy Commissioner, Jammu dated 20.06.1986 was set aside. The matter was once again remanded to the District Collector Agrarian Reforms (Deputy Commissioner), Jammu to hold fresh inquiry. This order passed by the Joint Financial Commissioner was __________________________________________________________________ LPAOW No. 71/2006 Page 4 of 13 challenged by the original appellant by way of revision petition in the Jammu and Kashmir Special Tribunal, Jammu. The revision petition was dismissed on 07.10.1989. The Deputy Commissioner/ Collector, Agrarian Reforms vide his order dated 02.04.1992 returned a finding that the land was given on contract for a period up to Kharief 1970 and, therefore, there was no relationship of landlord and tenant in existence between the parties at the relevant date and, therefore, provisions of Sections 4 and 8 of the Agrarian Reforms act were not attracted.
5. This order was challenged by the original appellant in an Appeal before the Joint Financial Commissioner, Jammu which was allowed vide order dated 06.04.1993 inter alia holding that the original appellant was in cultivating possession of the land as tenant thereof for a period of more than 30 years and had, therefore, acquired rights under the provisions of the Tenancy Act as well as the Agrarian Reforms Act. It was further held that the original appellant was entitled to the benefits under Sections 4 and 8 of the Agrarian Reforms Act. The said order was challenged by the respondents before the J&K Special Tribunal, Jammu by way of revision which was allowed on the ground that Joint __________________________________________________________________ LPAOW No. 71/2006 Page 5 of 13 Financial Commissioner had been vested with the powers of Commissioner Agrarian Reforms, vide SRO No. 33 dated 17.02.1993 and, accordingly, the matter was remanded to the Court of Director Land Records (Settlement Officer) Jammu for hearing the appeal afresh. Thereafter, the said appeal was heard by the Director Land Records (vested with the powers of Commissioner Agrarian Reforms), Jammu and vide order dated 04.01.1994, the same was accepted and the appellant was held entitled to the benefit of Sections 4 and 8 of the Agrarian Reforms Act. The order passed by the Director Land Records was, however, assailed by the respondents by way of revision petition before the J&K Special Tribunal, Jammu. The Revision petition was dismissed by the order dated 20.03.1997 thereby affirming the order of Director Land Records.
6. Against the order dated 20.03.1997 passed by the J&K Special Tribunal, Jammu, the respondents herein approached this Court by way of OWP No. 598/1997. The writ petition was contested by the original appellant Sh. Hans Raj and was disposed of vide Judgment dated 17.10.2006 which is impugned in this Appeal. The learned Single Judge set aside the findings recorded by the Commissioner Agrarian Reforms __________________________________________________________________ LPAOW No. 71/2006 Page 6 of 13 and the J&K Special Tribunal and has upheld the order of District Collector Agrarian Reforms. It was held by the learned Single Judge that the relationship of landlord and tenant between the parties had ceased to exit with the expiry of term of lease and, therefore, the original appellant was not entitled to the benefits of the provisions of Sections 4 and 8 of the Agrarian Reforms Act. The original appellant was thus held to be an unauthorized occupant and the parties were relegated to the remedy of civil suit wherein the respondents had sought a decree of possession against the appellant. Being aggrieved, the original appellant had filed this appeal, who expired during pendency of this appeal and his legal representatives were brought on record.
7. The Judgment of learned Single Judge has been assailed by the appellants inter alia on the following grounds:-
(a) that the Judgment impugned is not sustainable, for, as same has been passed on incorrect facts and is contrary to the record.
(b) that the learned Single Judge has also not appreciated the fact that although as per the last Patta Nama/lease deed, the appellant was entitled to cultivate the land as lessee up to 27.06.1970, yet by operation of the provisions of Section 15-A of the Tenancy Act, he had become a protected __________________________________________________________________ LPAOW No. 71/2006 Page 7 of 13 tenant and unless evicted under Section 49 of the Tenancy Act, he was entitled to remain in cultivating possession as tenant thereof and, therefore, being a tiller in Kharief 1971, entitled to the benefits of Sections 4 and 8 of the Agrarian Reforms Act.
8. Heard learned counsel for the appellants and perused the record.
9. While elaborating the grounds of challenge, the appellants submitted that the learned Single Judge committed an error of law by setting aside the concurrent findings of fact recorded by the appellate authority, i.e., Director Land Records (with Powers of Commissioner Agrarian Reforms) and J&K Special Tribunal, Jammu based on record and erroneously upheld the findings recorded by the Collector, Agrarian Reforms, who had declared the appellant as un- authorized occupant without taking note of the provisions of Section 15-A of the Tenancy Act.
10. In support, the appellants relied upon a Judgments of learned Single Bench of this Court in case titled Beli Ram v. Chairman, Special Tribunal, 2004 (3) JKJ (HC) 492 and Balwant Singh and ors. V. State of J&K and ors, 2006 (2) JKJ (HC) 625.
__________________________________________________________________ LPAOW No. 71/2006 Page 8 of 13
11. The facts in this case are not in dispute. Admittedly, the appellant was inducted as tenant by the respondents by execution of a Patta Nama way back in the year 1960. Initially the lease was granted for a period of three years but the same was extended from time to time by executing fresh Patta Nama. Last Patta Nama/lease deed was executed on 15 th Har, 2-24 BK for another period of three years which expired on 15th Har, 2027 BK which corresponds to 27.06.1970 A.D. Admittedly, the appellant was in cultivating possession of the land in question as tenant thereof on 27.06.1970. After the expiry of this lease deed, the respondents called upon the appellant to vacate the land on the ground that on the expiry of the lease deed, the appellant was an un-authorized occupant. It is also not in dispute that he J&K Tenancy Act, 1980 came to be amended by Act XII of 1955 and Section 15- A was substituted. For facility of reference, Section 15-A of the Act is reproduced hereunder:-
"15-A. Protected tenants -- (1) All tenants other than occupancy tenants and such fixed term tenants as hold maliari or vegetable growing land shall be deemed to be protected tenants and recorded as such in respect of such land as is held by them in their cultivating occupation at the time of the commencement of the Jammu and Kashmir Tenancy (Amendment) Act], [1965]:
__________________________________________________________________ LPAOW No. 71/2006 Page 9 of 13 Provided that the right of protected tenancy of a tenant shall cease when a landlord resumes land for personal cultivation under section 49 of the Act:
Provided further that the right of protected tenancy of a tenant holding under a lessee or a mortgagee, shall also cease on the expiry of the lease or mortgage, as the case may be, if the lessor or the mortgagor was in self cultivating occupation of such land immediately before such land was leased or mortgaged and such land including the other land in his personal cultivation does not exceed the size of the holding specified for a landlord in clause (a) of section 45 of the Act:
[Provided also that the right of protected tenancy shall not accrue to a tenant admitted by a protected tenant:
Provided further that a tenant admitted after the coming into force of Act XII of 1955 shall not be entitled to such right in respect of such portion of the land as together with what he holds in ownership right or in tenancy right as an occupancy or protected tenant or both does not exceed 2 acres of Abi or 4 acres of Khushki land in the Kashmir Province including the districts of Ladakh and Gilgit and 4 acres of Abi or 6 acres of Khushki in the Jammu Province.
Explanation. -- For the purposes of this proviso 1 acre of land held in ownership right shall be deemed to be equal to 2 acres of land held in tenancy right.] [(2) Notwithstanding anything contained in Chapter IV of the Jammu and Kashmir Land Revenue Act, Samvat 1996, the recording of the right of protected tenants under sub-section (1) shall be made by an entry in the Girdawari register at the time of the crop inspection following the coming into force of the Jammu and Kashmir Tenancy (Amendment) Act, 1965 and shall immediately thereafter to be taken to the current quadrennial Jamabandi in such manner as may be notified by the Government in this behalf.]"
12. A bare perusal of Sub-section 15-A of the Tenancy Act, 1980, would show that all tenants other than occupancy tenants and such fixed term tenants as hold maliari or vegetable growing land would be deemed to be protected __________________________________________________________________ LPAOW No. 71/2006 Page 10 of 13 tenants and recorded as such in respect of such lands as is held by them in cultivating possession at the time of commencement of J&K Tenancy (Amendment) Act, 1965. It may be pointed out that by Act XIV of 1965 for "1955" 1965" was substituted. The Section further provides that the right of protected tenancy of a tenant would cease only if the landlord resumes land for personal cultivation under Section 49 of the Act and also in case of protected tenant holding lease under lease for a fixed period, would be a protected tenant on the expiry of such land if the lessor was in self cultivating occupation of such land immediately before such land was leased.
13. Learned counsel for the appellant is, therefore, correct in his submission that by operation of Section 15-A of the Tenancy Act, he being a non-occupancy tenant, became entitled to be recorded as protected tenant and, therefore, he would be deemed to be in personal cultivation of the land as tenant thereof. The Judgments relied upon by the appellants also support the aforesaid view. Even in Kharief 1971, the crucial date mentioned in the J&K Agrarian Reforms Act for conferring ownership rights on the tiller, cultivating land of the owners on the said date. It has rightly been contended by __________________________________________________________________ LPAOW No. 71/2006 Page 11 of 13 learned counsel for the appellants that no application was moved by the respondents at any time seeking resumption of land for the personal cultivation in terms of Section 49 of the Act.
14. The argument of learned counsel for the appellants that even the benefit of 2nd proviso to Section 15-A of the Tenancy Act would not be available to the respondents as immediately before the execution of lease deed, the respondents-landlords were not in self cultivation of the land, has substance. The findings of two Courts below, i.e., Commissioner Agrarian Reforms, Jammu and J&K Special Tribunal, Jammu are, therefore, based on appropriate appreciation of law. The appellant was a deemed protected tenant in terms of Section 15-A of the Tenancy Act and continued to be so till Kharief 1971 and, therefore, was rightly held entitled to the benefit of Sections 4 and 8 of the Agrarian Reforms Act.
15. Besides, we do not find any material on record to set aside the concurrent findings of fact in this regard, recorded by the J&K Special Tribunal and the Commissioner Agrarian Reforms, Jammu. We, therefore, do not find any illegality or infirmity in the order of J&K Special Tribunal which was __________________________________________________________________ LPAOW No. 71/2006 Page 12 of 13 impugned in the writ petition. Consequently, the Judgment of learned Single Judge is set aside. In the result, the appeal is allowed.
(Sanjeev Kumar) (Alok Aradhe)
Judge Judge
JAMMU
03/08/2017
Tilak, Secy.
__________________________________________________________________ LPAOW No. 71/2006 Page 13 of 13