SHANKAR Vs. STATE OF J&K

JUDGEMENT

(1.) BRIEF facts of this case are these. One Mst. Ghakhar widow of Jyoti owned land measuring 26 kanals 16 marlas comprised in khasra no. 80/1 situated in village Parthal Teh. Reasi. She had executed a will dated 6.3.87 in favour of Shankar, the petitioner herein. Since, he had no issue, therefore, the petitioner started cultivating the land and was recorded in possession as Gair Mareesi Lagan Nakadi Hasb Parta De Webaza" Waysiat. Tehsildar Reasi by order dated 12.6.76 attested mutuation no. 468 in favoui of the petitioner holding him to be In continuous possession of the land since 1961 as tenant. This order was challenged by Mst. Ghakhar in appeal before the Sub -Divisional Magistrate, Reasi who dismissed the same on 1.2.78 holding that revocation of the will does not alter the actual possession of the land. It appears Mst. Ghakhar re -gained possession of the land and the petitioner approached the Sub -Divisional Magistrate (Collector) Reasi for restoration of the same. By his order dated 3.1.81 the SDM (Collector) Agrarian Reforms directed the restoration of possession in favour of the petitioner. This order was set aside by the Joint Agrarian Reforms Commissioner on 4.10.82 who remanded the case for fresh enquiry. By his order dated 10.2.84,Sub Divisional Magistrate in exercise of powers as Collector Agrarian Reforms directed the Tehsildar to correct entry of Kharif 1971. By the same order he directed that possession should be restored to Mst. Ghakhar u/s 27 of the Agrarian Reforms Act. This order was challenged before the Joint Agrarian Reforms Commissioner who dismissed the appeal filed by the petitioner vide his order dated 9.8.86. Opertive portion of the order reads as under:

(2.) NO reasons have been given for dismissing the appeal. It appears revocation of the will made all differences and the appellate authority did not deem it proper to consider the import of possession of the petitioner in Kharif 1971.

(3.) AGGRIEVED by this, the petitioner approached Special Tribunal by filing revision petition no. 417 dated 23.10.86. He had earlier filed revision petition against the order dated 4.10.82 passed by the Joint Agrarian Reforms Commissioner also. Mst. Ghakhar also filed revision petition against the order of Agrarian Reforms Commissioner dated 9.8.86. All these revision petitions were decided by the Special Tribunal by a common order dated 29.12.92. Revision Petition No. 138/82 was allowed and this order is not in challenge. The petitioner, however, is aggrieved of the order of the Special Tribunal by which revision petition challenging the order dated 9.8.86 passed by the appellate authority has been dismissed. Mr. Bhat appearing for the petitioner argued that the Tribunal unnecessarily introduced relationship of landlord and tenant to attract the bar for the application of the Agrarian Reforms Act which is not necessary u/s 4 of the Act. Similarly, Tribunal it is argued wrongly applied the definition of personal cultivation to hold that respondent was deemed to be in possession in Kharif 1971. Mr. Gupta on the other hand strenuously argued that even though the petitioner was cultivating the land, but the respondent being a widow, it will be deemed to be her personal cultivation after reproducing the definitions of landlord and tenant. The learned member of the Tribunal proceeded to find out the status of the petitioner by observing as under: