- (1.) Mortgagee, of occupancy tenant of grade 'a' as defined in clause (a) of Ss. (1) of S. 3 of the Jammu and Kashmir Tenancy Act, 1980 (1923 A. D. ) Act 2 of 1980, is aggrieved by decision of the High court affirming the order of the Jammu and Kashmir Special tribunal holding that the mortgagee was not entitled to ownership rights under Big Landed Estates Abolition Act of 2007 (1950 A. D. ) (referred as Abolition Act) as he was not tiller of the soil being not in cultivatory possession in Kharif 2007, the material date under the Act. consequently the mortgagor was entitled to restoration of possession in pursuance of decree passed for restitution of possession under Jammu and Kashmir Restitution of Mortgaged Properties Act of 2006 (1950 A. D. ) (in short 'restitution Act').
(2.) Litigation, for the land in dispute, extends nearly to four decades. This period also witnessed various State legislations, dealing with agricultural land, resulting in various proceedings before different authorities. Mortgage was, admittedly, made under Tenancy Act of 1923. In 1949 jammu and Kashmir Distressed Debtors Relief Act was passed to grant relief to distress debtors. The Authority to decide claim was designated as Debt Conciliation Board. In February 1950 Restitution Act was passed to grant relief to the poor and destitute debtors. It provided summary procedure for restitution of mortgaged properties. It was not disputed that the mortgagor obtained a decree for restitution of the property against the mortgagee under this Act in 1956. It is not clear if the proceedings were commenced or were pending on the date the abolition Act came into force, as the Act was passed in the same calendar year in which the Restitution Act was passed. However mutation proceedings appear to have started in 1957. The Tehsildar directed transfer of ownership in proportion of half and half in favour of both the mortgagor and the mortgagee. What happened between 1957 and 1968 is not clear. But in June 1968 the earlier mutation was cancelled and the entire land, that is the proportion directed to be recorded in name of the mortgagee was also directed to be transferred and mutated in favour of the mortgagor. This order appears to have been set aside by the Financial Commissioner in 1970 and the Tehsildar was directed to decide the proceedings afresh. After remand the village came under consolidation and the Tehsildar Consolidation once again directed mutation of entire land in favour of the mortgagor. The order was set aside by the Settlement Officer Consolidation in 1972 who directed Tehsildar to pass fresh orders in light of Agrarian Reforms Act of 1972. In pursuance of this order, and probably on application of the mortgagee, the Collector agrarian Reforms called for a report from Tehsildar who submitted the same in August 1979. After narrating the history of litigation the Tehsildar held: "The case has come for consideration of the undersigned on the application of the plaintiff. Since now the matter falls under the agrarian Reforms Act, 1976, the Tehsildar Consolidation has lost his jurisdiction in case which vested in 1971 and the case of Kharak singh has taken a new turn since it is not within the jurisdiction of the undersigned and Hon'ble A. C. (Assistant Collector) Agrarian reforms now has jurisdiction to pass the orders on the case. 178 so far as the claims in respeccultivating the land prior to 2007 be conferred ownership rights after thorough enquiry under rules. The case is returned to the Tehsildar Jammu for further action. "on remand e Tehsildar restored the mutation order passed in 1957 and directed part of land to be recorded in name of the mortgagor. It is claimed that appeal and revision filed by the mortgagor and mortgagee are pending before appropriate authorities. While these proceedings were going on the mortgagor moved the civil court in 1968 for execution of the decree under Restitution Act which was allowed by the City Judge in September 1972 directing for issuance of warrant of possession. The order was upheld in appeal by the District Judge. The second appeal against this order was decided in 1979 by the High court and it was held that civil courts having decided rights of parties the question of possession may now be decided by the Collector Agrarian Reforms Act. As directed by the High court the Collector Agrarian Reforms decided the dispute on 21/07/1980 and held: "Since the mortgagee has obtained the benefit from the mortgage property more than the amount due to him in the shape of mortgage money for the period and more than 10 years has since expired from the beginning of mortgage, it is, therefore, ordered that under S. 10 of the Agrarian Reforms Act the mortgage of land comprising of Kh. Nos. 87, 87 Min 256, 50, 40 measuring 71 kanals 8 marlas to be deemed as extinguished. Excluding the residential building raised by the mortgagee the possession of the land be handed over to Shri Anant Singh etc. mortgagors. Regarding the residential building separate orders will be issued. "the order was set aside in appeal by the Commissioner Agrarian reforms in April 1982 and it was held that even though the resumption order in favour of mortgagor was correct the order of restoration of possession could not have been passed as tenants who were recorded inrevenue records and were necessary parties had not been impleaded. This order was set aside by the impugned order of tribunal. It was found as a fact that the mortgagee was not in cultivatory possession in 2007 kharif. The tribunal further found that since tenants were entered in relevant year the mortgagee could not get any right as tiller of the soil. But as the tenants abandoned their possession in subsequent years and did not claim any right under Abolition Act the mortgagor was entitled to restoration of possession as directed by the Collector. The order was upheld by the High court in writ jurisdiction. The finding about possession is based on entries in revenue records. It is, therefore, a finding of fact which is not liable to interference by this court. An attempt was made to assail it by producing an extract of subsequent year incorporating an order correcting the entry. This document was not produced before the High court. Even the copy of the order directing correction was not produced before this court. It is, therefore, not possible to place any reliance on it. The submission that the tribunal did not afford any opportunity to rebut it, also, could not be substantiated.
(3.) What survives, thus, is the legal submission that the orders passed by the High court, the tribunal and Agrarian Reforms Collector were nullity. No such argument was raised before any of the authorities. Neither objection to jurisdiction nor to non-applicability of provisions of abolition Act or Restitution Act or even Agrarian Reforms Act, 1976 was ever raised. However it was urged if the orders were nullity then any concession or implied acquiescence of his client should not result in non-suiting him. How far this argument is correct need not be gone into unless it is found that the claim of mortgagee on his own showing has some semblance of acceptability. It was argued that Agrarian Reforms act could not apply to land in dispute and, the decree obtained under restitution Act could not be executed in view of clause (d) of S. 9 of Abolition Act. But none of these objections were raised before the high court in second appeal. Rather the mortgagee agreed that proceedings may be decided by Collector Agrarian Reforms under Act of 1976. Objection was not taken even before Collector Agrarian Reforms. Moreover from the orders extracted above it is apparent that even revenue authorities seized of the case were of opinion that after coming into force of 1976 Act rights of parties could be decided under 1976 Act only as it had overriding effect. And S. 42 of 1976 Act made inapplicable various tenancy legislations including Abolition Act, so far as they were inconsistent with provisions of the Act. Right of the mortgagor under S. (sic) 1976 Act is unassailable. But since its applicability to the land in dispute was, seriously disputed and there is no decision of the High court to indicate how the provisions have beenapplied and understood in the State for nearly fifteen years it appears appropriate to leave the issue open and examine if the mortgagee could get any right either because the decree obtained under the Restitution act was nullity or it could not be executed after enforcement of the abolition Act or the authorities committed any error of jurisdiction in decking that the mortgagee being not in physical possession in 2007 kharif did not become owner under the Abolition Act.;