JUDGMENT
S.K. Gupta, J.
1. This appeal is directed against the order dated 13.11.1998 propounded by the learned Single Judge in OWP No. 442 of 1989 entitled Jagdish Raj and Anr. v. Smt. Bhan Kour and Ors.
2. By means of the aforesaid judgment and order, the learned Single Judge affirmed the finding of the Jammu & Kashmir Special Tribunal, Jammu that proceedings pertaining to the dispute as to whether who would inherit the occupancy rights of Rehmat Ali should be deemed to have been abated.
3. The dispute pertains to land aggregating 18 kanals contained in khasra No. 266 and 266 min in Village Raipur Satwari, Tehsil & District Jammu. Rehmat Ali has occupancy right in the land under Bhagat Ram proprietor. After the death of Rehmat Ali all his occupancy rights of tenancy stood transferred in the name of his two sisters namely Noor Jahan and Mst. Ghulam Fatima, vide order dated 4th Magh 2001 passed by Revenue Assistant on mutation No. 133. Bhagat Ram proprietor of the land challenged the mutation in appeal on the ground that occupancy right of the deceased Rehmat Ali could be inherited in accordance with section 67 of the Tenancy Act. While accepting the appeal, the then Governor/Collector, Jammu set side the order dated 31.5.1964 of the Revenue Assistant passed on mutation No. 133 and remanded the case for passing a fresh order in accordance with law. It was observed by the Governor that the mutation for holding of Rehmat Ali should have been in the first instance mutated in the name of his widow and later on it was established that she had re-married, the second order for de-vesting her and transfer it to those entitled should have been made. The record further revealed that in compliance to the order passed by the Governor in appeal that no mutation of the event was attested and the land continued to remain in the name of Rehmat Ali deceased. It was after enforcement of Big Landed Estates Abolition Act, 2007 Bhagat Ram land owner included 18 kanals of land out of the land in dispute in his authorized unit of 182 kanals, and the remaining under mutation No. 252 was transferred in proprietary right to Rehmat Ali deceased.
4. It is pertinent to point out that at this stage that Rehmat Ali died long before Smvt. 2004 A.D and after the promulgation of Big Landed Estates Abolition Act, 2007. It was during that time the Custodian on the other hand, vide its order dated 23.8.2008 (BK) declared Rehmat Ali deceased as an Evacuee Property. Aggrieved by this order, Bhagat Ram preferred a revision before the Dy. Custodian General, Jammu to impugned its correctness. The Dy. Custodian General vacated the order of Custodian and remanded the case for fresh orders. Since the Dy. Custodian General had vacated the order of the Custodian declaring the holding of Rehmat Ali as an Evacuee Prop erty, the question to succession remained open. The ‘Custodian, Jammu referred the case to Tehsildar for determination of the question of succession in the first instance before making any order in regard to its declaration as Evacuee Property.
5. Record further revealed that after enquiry, Tehsildar returned a finding that Rehmat Ali who could be entitled to succeed and, therefore, his occupancy right stood extinguished in respect of the land measuring 18 kanals reverted back to the owner. The Labh Singh who happened to be allotted this land by Custodian went in appeal before the Deputy Commissioner which came to be accepted and the case was remanded to Tehsildar. In pursuance of the remand order, Tehsildar reiterated his earlier finding which again was appealed before the Deputy Commissioner but the same stood rejected and the order of the Tehsildar was confirmed, vide order dated 10.11.1964. Deputy Commissioner further held that Labh Singh is a allottee of the land, ho has no claim to succeed the rights of occupancy or any other right. The property did not vest in the Custodian Evacuee Property at any point of time as Rehmat Ali died long before the disturbance of 1947 and promulgation of Big Landed Estate Abolition Act, 2007. The Dy. Commissioner in his order dated 10.11.1964 also made a reference with regard to the order of the Special Tchsildar, Jammu on mutation 252 and recommended to the Divisional Commissioner that the same be quashed being against law. The revision, however, did not merit acceptance with the Divisional Commissioner and the matter was finally taken up by Labh Singh before the Financial Commissioner and came to be disposed of on 24.10.69 with an observation that a fresh enquiry be conducted with regard to the re-marriage of Meher Bibi, and consequently extinguishment of her rights to succession after giving notice to the Custodian Evacuee Property and pass appropriate order in respect of the land covered by mutation 252. The Tehsildar, Jammu, however, after enquiry found that case of inheriting the occupancy right of Rehmat Ali as owner was never finally decided and further proceedings being inconsistent with the provisions of sub section 2 of section 51 of the Agrarian Reforms Act, 1972 could not continue and held that the case stands abated.
6. On the dichotomy of the entire record and going through the orders passed by various authorities under the Jammu & Kashmir Agrarian Reforms Act and the Jammu & Kashmir Special Tribunal, it is found that the main issue as to whether who is entitled to succeed to the occupancy right of Rehmat Ali and what would be the effect of Jammu & Kashmir Big Landed Estates Abolition Act, 2007 on the right to be determined has not been gone into by any of the authorities. Unless these material issues are determined and decided by a competent authority, one can not reach a conclusion that proceedings would be inconsistent and stand abated in the terms of the provisions of section-51 of the Jammu & Kashmir Agrarian Reforms Act. Section. Section-41 of the Agrarian Reforms Act, 2007 clearly envisages that nothing in this Act shall be construed to affect the personal or statutory law of succession in respect of ownership rights applicable to a person. This makes it further imperative to first go into the question as to its succession of occupancy of tenancy right of Rehmat Ali. Further, it is pertinent to point out that section-42 of the Agrarian Reforms Act reveals that only those provisions which are inconsistent with the provisions of the Agrarian Reforms Act and would cease to apply to the land to which this Act applies.
7. In these circumstances, we are clearly of the view that it would not only be fair but necessary for a Competent Revenue Authority to first go into the question as to whether the widow of Rehmat Ali had remarried and in that event who has to succeed to the occupancy right of Rehmat Ali and what would be the effect of Jammu & Kashmir Big Landed Estates Abolition Act, 2007 on the right so decided. Before deciding the question of abatement, neither the Jammu & Kashmir Special Tribunal nor the learned Single Judge has adverted to this aspect of the matter and landed in patent error in holding that the proceedings stand abated without determination of the main issue involved in the case.
8. Consequently, we allow the appeal and set aside the impugned order passed by the learned Single Judge. The case is remanded to the Tehsildar, Jammu with a direction to proceed into the matter and first decide the question as to who shall succeed to the estate of Rehmat Ali, whether Mehar Bibi, the widow of Rehmat Ali had remarried during the life time of Rehmat Ali and forfeited her inheriting tenancy right and also the effect of Jammu & Kashmir Big Landed Estates Abolition Act, 2007 on the right so deter- mined before dilating upon the issue of abatement.
9. It is not in dispute that the case of the parties was earlier also remanded to the Tehsildar, Jammu to go into the question of inheritance of Rehmat Ali’s occupancy of tenancy right, but before it could be decided, the Jammu & Kashmir Agrarian Reforms Act was promulgated and the Tehsildar, Jammu concluded that the proceedings should be deemed to have been abated. This means that the case of inheriting the occupancy right as owner was never came to be finally decided.
10. In the above view of the matter, we direct the Tehsildar, Jammu for holding a fresh enquiry.
11. The enquiry shall be concluded and decision be taken on the above referred material issues with a period of three months from the date the copy of the order is made available to him by the appellant. The appeal is, accordingly, disposed of.