SHANKAR Vs. STATE OF J&K
LAWS(J&K)-1999-8-18
HIGH COURT OF JAMMU AND KASHMIR
Decided on August 05,1999

SHANKAR Appellant
VERSUS
STATE OF JANDK Respondents

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: "The perusal of the record available on the file reveals that the land in dispute was owned by Hari Ram, Amar Nath sons of Lakhu and held in personal cultivation by one Indra S/o Sarno 1/4th, Munshi S/o Kejoo 1/4th and Mst. Gakhar w/o Jyoti 1/2 (respondent) and the entire land is recorded to be under the cultivating possession of the respondent. The record further reveals that the respondent executed a Registered will dated 6.3.67 in favour of the appellant. The recital in the will clearly indicater that the appellant was appointed as an hair by the respondent who was to succeed to immovable and movable property of the respondent after her death. It does not contain any recitle that the appellant was cultivating the land as a tenant at the time of the execution of the will or prior thereto. The entries in the khasra Girdawari from Rabi 1967 have been made in the name of the appellant, in pursuance of the will. Even in Kharif 1971 the girdawari entries which have been verified by the then Circle Officer indicate the possession of the land by the appellant in pursuance of the "will". These entries continue upto 1986. In Rabi 1977 the land is recorded to be under the cultivation of the respondent and the entry in Kharif 1977 states that "will" executed by the respondent in 1967 has been revoked by her through a registered document dated 31.3.76. For the foregoing reasons the appeal which has otherwise no force is hereby dismissed, however, the order of the SDM so far it related to the exchange of land in lieu of the land under house is hereby set -aside".
(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: "Reading the definitions of these words in between the lines it is gathered that the sine quo non to become a tenant is the payment of rent to the landlord by the tenant or to the state as the case may be. In the present case, it has not been established by the petitioner herein namely, Shankar that respondent Mst. Ghakhar had been receiving rent from him. Thus, it can be said with certainty that relationship of a landlord and tenant did not exist between the parties of the case. The holding of this view if further certified by the principle laid down in the case of Sheedhari vs. S.P. Singh (AIR 1954 SC 760) wherein it was held that in order to be tenant party must be consciously inducted as a tenant. Permissive occupation of the land under will or some amicable arrangement does not establish the relationship of the landlord and tenant. No doubt, the petitioner herein had been paying the land revenue as per the village rate i.e. "Nakad Hasav Parta Den" yet it does not establish the fact that respondent herein had been receiving the rent of the produce of the land in question". With due reference to the observation of the learned member I think the definition of tenant has been unnecessarily stretched too far. As noticed above, non -payment of rent is qualified. Since the owner had desired to appoint him as her successor, therefore, he was put in possession of the land so that he could inherit after her death and in the meantime look after her in lieu of cultivation of the land. This fact she stated before the Joint Agrarian Reforms Commissioner in appeal against the order of SDM Reasi dated 31.1.81 decided on 4.10.82. Relevant portion of this order reads as under: "The appellant stated that she is an old lady without any source of income and that it was some time back that she had engaged the respondent as her agent to help her in cultivation of the said land. A will in favour of the respondent was executed by virtue of which he would inherit her immoveable property after her demise provided he would look after her properly. The respondent continued to do so until recently he deserted her, she was left with no option but to cancel the will already executed by her. She being illiterate and aged widow would not know how the respondent, her agent manipulated entries in Revenue Records in his favour which are based neither on facts nor supported by any documentary proof. Refuting the story of the appellant the respondent stated that he was in possession of the land as a tenant right from 1967 till 1977 and was paying rent ยข to the appellant and since he was in possession on the crucial date i.e. Khani 1971, he was the prospective owner of the land in dispute". ;


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