HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPAOW NO. 4 OF 2010 Onkar Singh & ors. Petitioners State of J&K and ors Respondent !Mr. R. S. Pathania, Advocate ^Mr. A. G. Sheikh, Advocate for 3 & 4.Mr. Amrish Kapoor, Advocate for 6 Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice Honble Mr. Justice Mansoor Ahmad Mir, Judge Date: 10.02.2011 :J U D G M E N T :
Dr. Saikia, CJ:
Heard Mr. R. S. Pathania, learned counsel for the
appellants as well as Mr. A. G. Sheikh, learned counsel for
respondent Nos. 3 and 4 and Mr. Amrish Kapoor, learned
counsel for respondent No. 6.
2
2. This Letters Patent Appeal witnesses a challenge to
the Judgment dated 1.1.2010 passed by the learned Writ
Court in OWP No. 507/2007, whereby the learned Single
Judge dismissed the writ proceedings initiated by the
appellants questioning the legality and sustainability of the
order dated 1.6.2007 rendered by the Jammu and Kashmir
Special Tribunal, Jammu (for short, the Tribunal),
claiming, inter alia, primarily that they were protected
tenants of the land in dispute and respondent No. 6 had no
legal rights whatsoever to claim the said land, holding that
(a) there was no record/material to establish the status of
the appellants as protected tenants; and (b) since the
disputed land was deleted from the records of Evacuee
Department in the year 1983, the contention of the
appellants that land was allotted to them could not be
accepted.
3. This case carries a chequered history. The facts of
this case traced their roots way back to the time of partition
in the year 1947.
4. The lis involved herein pertains to a land measuring
14 kanals falling in Survey Nos. 701, 720, 767 and 890 at
village Kathil Dhangu Morha Punna Tehsil Ramnagar.
3
5. Respondent No. 6, Mst. Reshma Bibi D/o Late
Shukurdin, is the sole surviving member of the family of
late Shukurdin, who had died, along with all his other family
members during the holocaust which followed partition of
Indian Subcontinent in the year 1947.
6. Respondent No. 6, who was a minor and unmarried at
that time, could not cultivate and manage the property left
by her late father Shukurdin and the appellants, who were
displaced persons from Tehsil Shakargarh, (West Pakistan)
and Non State Subjects, took full advantage of the
prevailing circumstances and occupied the land left behind
by late Shukurdin and started cultivating the same without
any valid allotment/contract/lease/engagement and
continued to be in the physical possession of the disputed
land till date without any legal authority.
7. In the meantime, respondent no. 6 got married to one
Shri Kirpal Singh resident of Batala in the district of
Gurdaspur and could not get back the possession of the land
left by her father Late Shukurdin.
8. However, in the year 1978, inheritance mutation No.
368 of the disputed land was attested in favour of
respondent No. 6 on 7.5.1978 and the same had also been
4
upheld by the learned Deputy Commissioner, Udhampur
vide his order dated 12.1.1979 and by the learned Divisional
Commissioner, Jammu vide his order dated 20.05.1980 and
finally approved by the Division Bench of this High Court
vide order dated 12.2.1981.
9. Despite all those legal orders, the respondent No.6
could not get back the possession of the land. On
13.08.1981, respondent No. 6 filed an application for
restoration of 14 kanals of land, as described hereinabove,
held by the appellants before the District Assistant
Custodian, Udhampur, who vide his order dated 14.06.1983
restored the land in favour of respondent No. 6 deleting the
same from Evacuee Property.
10. That order was set aside by the Custodian Evacuee
Property, Jammu vide order dated 5.12.1983 and the case
was remanded to the District Assistant Custodian for fresh
enquiry. However, the District Assistant Custodian consigned
the file to records in default by his order dated 18.01.1985.
11. On the application of the respondent No. 6, the
Custodian called for the record of the case from the court of
District Assistant Custodian and simultaneously the
appellants filed transfer application before the Custodian
5
General. The Custodian General decided the application and
sent the case back to the Custodian.
12. Thereafter, the Custodian vide his order dated
6.1.1990 upheld the order passed by the District Assistant
Custodian on 14.06.1983 with further directions that
possession of the property be delivered to respondent No. 6
under Rule 33 of the Jammu and Kashmir State Evacuees
(Administration of Property) Rules, Svt, 2008 framed under
the Jammu and Kashmir State Evacuees (Administration of
Property) Act, Svt, 2006.
13. The appellants went on appeal before the Custodian
General, who vide order dated 19.3.1991 upheld the order
dated 6.1.1990 of the Custodian Evacuee Property, Jammu.
14. The appellants challenged order dated 19.03.1991
passed by the Custodian General before the Tribunal which,
while setting aside the order of the Custodian General,
remanded the case to the Custodian Evacuee Property vide
order dated 26.12.1991 for passing fresh order in the light
of the observations contained in the order.
15. The Custodian passed order dated 5.11.1992 in
pursuance of order dated 26.12.1991 passed by the
Custodian General. Custodians order dated 5.11.1992 was
6
challenged by the appellants in the revision petition which
was disposed of by the Tribunal vide order dated
17.10.1994, wherein it was specifically reflected that the
issue of succession of the land in question in favour of
respondent No. 6 was set at rest by upholding mutation
No. 368 dated 7.5.1978 attested in favour of respondent No.
6.
16. For ready reference the order dated 17.10.1994 may
be quoted as under:-
.I have gone through the contents of the
mutation No. 368 dated 7.5.1978 whereby
inheritance of Mohd Mansa, Mohd, Hussain
and Bashir have been devolved on Resham
Bibi. This order was upheld by the Deputy
Commissioner, Udhampur and Divisional
Commissioner, Jammu in appeals before
them. In its finality, the Division Bench of the
Honble High Court has by virtue of order
dated 12.02.1981 observed as under:-
the authorities below have rightly held
that the petitioners being merely protected
tenants, they have no locus standi to
challenge the mutation as regards the
ownership of the land in dispute. Accordingly,
we see no good ground for interference with
their order refusing to interfere with the
mutation No. 368 dated 7.5.1978 attested in
favour of respondent no. 1 as an heir and
successor to the last title holder. The
petitioner has no merit in it. It is dismissed
accordingly
It becomes amply clear that the Honble
High Court has set at rest the issue of
7
succession by upholding the mutation No. 368
dated 7.5.1978 attested in favour of Resham
Bibi.
As far as the claim of the petitioners is
concerned, they are non state subjects, who
were allotted land in Punjab being DPs from
West Pakistan. They could not produce any
allotment order, even made in their favour in
respect of land in dispute by any authority.
For the foregoing reasons, I do not find
any force in the revision petition, which is
accordingly, rejected
17. The order dated 17.10.1994 of the Tribunal was
challenged by the appellants before this High Court through
the medium of the writ petition and the High Court by its
order dated 09.11.2008 passed in OWP No. 779/94, having
heard the parties, remanded the case to the Tribunal for
disposal in accordance with law with an observation that the
decision given in Chuni Lal v. Custodian General decided on
15th September 1998 in OWP no. 705/1985, wherein
reliance was placed on the decision reported in Ashwani
Kumar v. J&K Special Tribunal 1988 J&K 65, be also
noticed. The relevant portion of the order made be quoted
as under:
The above aspect of the matter appears
us to have been taken note of by the J&K
Special Tribunal. In view of this, the case is
remanded back to the Tribunal as it fits (sick)
deemed proper. The petitioner would be at
8
liberty to raise any other arguments, which be
deemed proper. Decision given in Chuni Lal
Vs. Custodian Generals, decided on 15th Sept.
1998 i.e. O.W.P. 705/1985, wherein reliance
was placed on the decision reported as
Ashwani Kumar Vs. J&K Special Tribunal,
disposed of accordingly. The parties through
their counsel are directed to appear before
the J&K Special Tribunal on 28th December,
1998. Till the matter is redecided parties to
maintain status quo.
18. The Tribunal, on such remand, by its judgment and
order dated 1.6.2007, after hearing learned counsel for the
parties and also taking note of the entire facts on record as
well as having discussed the related law of Tenancy,
explaining the term Rent, Landlord and Tenancy, came
to the finding that the plea of the appellants that they
acquired the status of protected tenants, was untenable and,
accordingly, the same was rejected, recording further that
there never existed any tenancy between the parties to the
land in dispute and the appellants were and continue to
remain as trespassers and deserved to be dispossessed
from the land in dispute forthwith upholding the claim of
respondent No. 6. Accordingly, the Tribunal passed the
following direction:
In view of the foregoing discussion,
I have no alternative except to dismiss
the petition, as there never existed any
tenancy between the parties to the
disputed land and the petitioners were
9
continued to remain as trespassers and
deserve to be disposed from the disputed
land forthwith and uphold the claim of
Mst. Reshma Bibi (Respondent) to get the
possession of the disputed land without
any further delay.
I, therefore, accept the claim of the
respondent (Mst. Reshma Bibi) and direct
the Deputy Commissioner Udhampur to
disposes the petitioners from the
disputed land and put Mst. Reshma Bibi
in physical possession under his personal
supervision after the expiry of a period of
three months from the date of issue of
this order. A copy of this order should
also be sent to the Deputy Commissioner
Udhampur for his information and
compliance. This being a classical case of
miscarriage and denial of justice and long
long harassment of the old, helpless, frail
and poor lady who is already sitting in
the departure lounge for life) for the last
30 years by the rich, influential and
mighty petitioners, accordingly, I impose
a cost of Rs. 10,000/- on the petitioners
to be paid to Smt. Reshma Bibi. Stay
order if any, issued by this Tribunal is
also vacated. After due completion the
file can be consigned to records.
19. Being aggrieved by the findings recorded and views
expressed by the learned Tribunal by its order dated
01.06.2007, the appellants moved the Writ Court in the
instant Writ Petition, OWP No. 507/2007.
20. The Writ Court by its impugned judgment and order
dated 1.1.2010, on consideration of extensive
arguments of learned counsel for the parties and upon
10
close perusal of the Tribunals judgment and order
dated 01.06.2007 including the entire records so placed
before it, arrived at the findings that the issues raised in
the instant writ petition were purely factual in nature
and the same were addressed properly and adequately
by the authorities below including the Tribunal. The Writ
Court observed that so far as the issue of protected
tenancy was concerned, the Tribunal discussed the
matter in details and found that the appellants failed to
produce any revenue entry or Girdawari or mutation
under Section 4 of the Agrarian Reforms act, 1976 (for
short the Act), which declared them as protected
tenants/prospective owners and consequently hesitated
to declare them as protected tenants.
21. It was further held by the learned Single Judge that
the land in question could not be said to be allotted in
favour of the appellants as in way back in 1983, the
land in question was already deleted from the records of
the Evacuee Department.
22. Legality and correctness of the judgment and order
dated 1.1.2010 passed by the Writ Court has been
questioned before this Writ Appellate Court.
11
23. Rejecting the findings and observations recorded by
the Writ Court, Mr. Pathania, learned counsel, has
vehemently contended that the Writ Court committed
grave error in law as well as on facts in dismissing the
writ petition wherein the appellant categorically agitated
the illegality and irregularity committed by Tribunal in
its judgment and order dated 01.06.2007 holding that
appellants were trespassers and deserved to be
dispossessed from the suit land and physical possession
of the disputed land to be handed over to respondent
No.6, because respondent no.6 had never acquired any
right whatsoever over the land due to the fact that the
same was in the continuous cultivation and occupation
under them since 1948 by acquiring the status of
protected tenant. It is further stated that the learned
Single Judge also failed to appreciate in its proper letter
and spirit the mandate of Tenancy Act amended in 1965
more particularly the Writ Court did not consider the
provision of Section 15-A of the Act pertaining to the
provision of protected tenant at all. It is also submitted
that the Writ Court did not answer the question raised
as to whether once a property was not notified as an
Evacuees Property in terms of Section 6 of the Evacuees
12
Property Act, no application under Section 8 of the said Act
could be entertained by the Evacuees Property Authority.
It is also argued that where there is specific direction given
by Division Bench of this Court by its order dated
12.02.1981 to the Tribunal to take note of the decision
delivered by this Court in OWP No. 705/1985 titled Chuni
Lal v. Custodian General and Ashwani kumar v. J&K
Tribunal reported in 1988 KLJ 65, the Tribunal preferred
not to follow the said direction of the High Court rather the
Tribunal went step ahead declaring that appellants were
not protected tenant whereas the Division Bench of this
Court clearly accepted the appellants as merely protected
tenants. In last leg of his submissions, Mr. Pathania,
learned counsel for the appellants has submitted that once
the Division Bench of this Court by its order dated
12.2.1981 affirmed that the appellants were merely
protected tenants, the authorities and the courts below
are not permitted to consider the same issue, inasmuch as
the status of the appellants, as merely protected
tenants, was finally decided by this Court in Division
Bench.
24. In support of the impugned judgment and order,
Mr. Kapoor, learned counsel for respondent No.6, has
13
straightway drawn our attention to the findings,
observations and discussions recorded by the Tribunal
while passing its order on 01.06.2007. According to
him, the Tribunal passed a detailed judgment wherein
every aspect of facts and law were vividly dealt with and
having considered and on scrupulous scrutiny of the
entire factual situation, rejected all the contentions and
submissions canvassed on behalf of the appellants. The
Tribunal in reaching at the conclusion, it is submitted,
held that the respondent No.6 admittedly was the sole
survivor of her father and was legitimately entitled to
the property in question whereas the appellants were
never tenants and continued to remain in land in
question as trespassers and encroachers till date. The
learned counsel has emphasized that the decision of the
Tribunal was wholly based on the materials available on
record. It is pointed out by the learned counsel for the
respondent No. 6, that the entire issues raised before
the Writ Court would clearly go to show that the
appellants carried a bundle of disputed facts for
adjudication before the Writ Court which did not come
within the purview of the writ jurisdiction. According to
him, the Writ Court by the impugned order rightly and
14
legitimately accepted the findings arrived at by the
Tribunal in its order dated 01.06.2007 and taking
similar view that of the Tribunal, dismissed the writ
petition. The impugned judgment and order does not,
therefore, warrant any interference by the Writ
Appellate Court.
25. Due consideration has been given to the in-depth
arguments and submissions placed before us by the
learned counsel representing the parties. The entire
records including various judgments and orders passed
by all the authorities on different times pertaining to
this issue have been meticulously scrutinized.
26. Having considered the facts and circumstances of the
case in its totality, it appears that the basic issue that
revolves around is the inheritance of the property in
question.
27. It is concurrently held by the authorities and Courts
below that the land in question was left by one Shukurdin,
father of respondent No. 6, who along with other family
members including her brothers were killed during the
massacre at the time of partition in 1947 and, at the relevant
time, she was minor and, later on, got married to one Kirpal
15
Singh. During the turmoil, the appellants, who were
displaced persons, taking full advantage of the prevailing
circumstances, occupied the land left by her father and
started cultivating the same without any valid documents as
regards allotment or lease whatsoever and continued to be in
physical possession and cultivating without any legal
authority.
28. Respondent No. 6, however, got inheritance mutation of
the land in question being mutation no. 368 dated 7.5.1978
and this was finally upheld by the Division Bench of the High
Court by order dated 12.02.1981, which attained finality.
Order dated 12.2.1981 would be necessary to read and the
same is quoted as under:-
The authorities below have rightly held
that the petitioners being merely protected
tenants they have no locus standi to challenge
the mutation as regards the ownership of the
land in dispute accordingly we see no good
ground for interfering with their order refusing
to interfere with the mutation No. 368 dated
07.05.1978 attested in favour of respondent
no. 1 as heir and successor to the last title
holder. The petition has no merit in it. It is
dismissed accordingly.
29. The above order clearly reflects that the ownership to
the land in dispute has been vested upon respondent No. 6
16
being heir/successor of the last title holder and the
appellants are being merely protected tenants.
30. In view of the above position, the primary questions to
be answered herein is that (i) as to whether the appellants
are the protected tenants and (ii) what is the effect of
expression merely protected tenants and the answer to this
question would clinch the whole issue.
31. To become a protected tenant, the person must be a
tenant first. The word tenant has been defined in the
Jammu and Kashmir Tenancy Act, 1980 (1923 A.D.)(for short
the Tenancy Act), which reads as under:-
2(5) tenant means a person who
holds land, under the State, or under
another person, and is, or but for a special
contract in that behalf would be, liable to
pay rent for that land, to the State or to
that person; but it does not include
i. an inferior landholder, or
ii. a person to whom a holding
has been transferred, or an
estate or holding has been let
on farm, for the recovery of an
arrear of land revenue, or of a
sum recoverable as such, or
iii. a mortgagee of the rights of a
landholder.
32. The above definition would go to show that to become
a tenant, a person must hold land under an individual or
17
State with a fixed liability to pay rent for that land under an
agreement. At the same time, both Rent and Landlord are
also defined in Section 2(2) and Section 2(6) of the Tenancy
Act respectively. Sections 2(2)and 2(6) of the Tenancy Act
read as under:
2(2) rent means what ever is
payable to a landlord in money, kind or
service by a tenant, on account of the
use or occupation of land held by him or
on account of the use of water for
irrigation.
2(6) Landlord means a person
under whom a tenant holds land, and to
whom the tenant is, or but for a special
contract would be, liable to pay rent for
that land.
33. The definitions reproduced above would explicitly
indicate that there must be tenancy created and existed
between the parties so as to become a tenant and landlord
and that too, obviously, by paying the rent.
34. Chapter 2-A of the Tenancy Act has exclusively dealt
with the Protected Tenants and the same contains in as
many as three Sections namely, 15-A, substituted by act XII
of 1955, Section 15-B substituted by Act XVI of 1965 and
Section 15-C inserted by Act VII of 2005.
18
35. For determination of the issue in hand, it would be
relevant and necessary to read Section 15-A, which provides
for Protected Tenants and 15-B which lays down the
Procedure for declaration of Protected Tenants. These
Sections may be quoted as under:
15-A Protected Tenants
(1) All tenants other than occupancy
tenants and such fixed terms tenants as
hold malairi 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).
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 the
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 lesser or the mortgager
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;
19
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 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 Kashmir
province including the Districts of Ladakh
and Gilgit and 4 acres of Abi or 6 acres of
Khushki in Jammu province.
15-B Procedure for declaration as
Protected Tenant
(i) Any tenant who is entitled to a right
of protected tenancy but is not entered as
such may make an application for being
declared and entered as a protected tenant
within one year of the attestation of the
quadrennial Jamabandi of the village in
which such land is situate prepared
immediately after coming into force of
Jammu and Kashmir Tenancy (Amendment)
Act 1965.
Provided that where the quadrennial
Jamabandi is attested without the note
being recorded, or without the entries being
read out to the tenants and landlord in the
manner prescribed under Section 15-A, the
period of one year shall be reckoned form
the date the Jamabandi is attested in such
manner.
(ii)Notice of every application presented
by the tenant under Sub Section (i) shall be
given to the landlord and no order shall be
made on such application unless the land
lord has been given an opportunity to be
heard.
(iii) On an application by the landlord or
a tenant, a tenant may be declared a
protected tenant and recorded as such, if
20
the land lord has agreed to confer on him
the right of protected tenancy.
36. An ordinary reading of the above provisions of law
pertaining to protected tenants would amply go to show that
the protected tenants are those who are 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 Act since its amendment
in 1965.
37. At the same time, Section 15-B provides for Procedure
for declaration of Protected Tenant which stipulates that a
tenant, who is entitled to a right of protected tenancy but is
not entered as such, may make an application for being
declared and entered as a protected tenant within one year
of the attestation of the quadrennial Jamabandi of the village
in which such land is situated prepared immediately after
coming into force of the Act as amended in 1965.
38. In the instant case, as has been revealed from careful
scrutiny of the records, the appellants at no point of time
were protected tenants or got any such declaration as
provided under Section 15-A and 15-B respectively. The
21
record made available does not even make any whisper that
there was any entry declaring the appellants as protected
tenants in their respective Jamabandi as required under
Section 15-B of the Tenancy Act.
39. Only plea which has been continuously and consistently
pressed upon in the contentions and submissions canvassed
on behalf of the appellants that they are in continuous
possession of the disputed land and have been cultivating the
same right since 1948 and hence they cannot be
dispossessed save and except following the procedure for
ejectment provided under the Statute especially when
respondent No.6 never proceeded for the resumption of the
disputed land under Section 49 of the Tenancy Act, which
prescribes for ejectment in case of resumption for personal
cultivation, by landlord, does not hold water in the given fact
situation.
40. It is surprising that how the question of eviction of the
appellants from the land in question by respondent No.6
accepting her to be the landlord, would, in the backdrop of
factual premises as narrated above, arise. In the humble
opinion of the Court, supported by the concurrent findings
of all the competent authorities below including the Division
22
Bench of this Court, it is pure and simply case of ownership
which has been vested upon respondent No.6 by virtue of
Mutation 368 dated 7.5.1978 and also land on being deleted
as Evacuee Property vide order dated 14.6.1983 by the
Assistant Custodian, Udhampur.
41. Having gone through the definition of tenant, rent,
landlord and protected tenant, as quoted above, there is
nothing on record to authenticate that the appellants have
ever got the status of mere protected tenants.
42. In the case in hand, on consideration of the judgments
and orders passed by various authorities, it is seen that the
appellants except claiming that they have been cultivating
the land in question since 1948, they failed to produce any
such document/documents to impress this Court with regard
to creation of any tenancy or allotment or revenue entry so
as to make them protected tenants. Even in the order dated
12.2.1981 passed by the Division Bench of this Court in Writ
Petition No. 629/1981, as quoted above, which has been
strongly relied upon by the appellants as to be the final order
of declaring them to be protected tenants, ex-facie, it is
abundantly clear, that High Court only observed to the effect
that authorities below had rightly held the appellants being
23
merely protected tenants had not locus standi to challenge
the mutation as regards ownership of the land in dispute.
The appellants were simply termed as merely protected
tenants and not beyond that.
43. Now, the question is what is the scope of word merely
qualifying the expression protected tenants. The Dictionary
meaning of the word merely being adverb is derived from
the word mere, being Noun. The word mere when is
used as an adjective, means that it is used when one wants
to emphasise how small or unimportant etc. the matter is.
(Oxford Advanced Learners Dictionary by A. S. Horn by 6th
Edition (2000).
44. Although the word mere is defined in Blacks Law
Dictionary 7th Edition (1999) (for short Blacks) as (Law of
French) Mother, as in the phrase en ventre sa mere (in its
mothers womb), the same can be well understood and
construed by another definition of the phrase mere right
which means an abstract right in property without possession
or even the right of possession (Blacks). It is also quoted in
Blacks that referring to Commentaries on the Laws of
England 197-98 (1766) William Blackstone, as under:
The mere right of property, the jus
propprietatis, without either possession or
24
even the right of possession. This is
frequently spoken of in our books under the
name of the mere right, jus merum; and the
estate of the owner is in such cases said to
be totally devested, and put to a right. A
person in this situation may have the true
ultimate property of the lands in himself: but
by the intervention of certain circum-stances,
either by his own negligence, the solemn act
of his ancestor, or the determination of a
court of justice, the presumptive evidence of
that right is strongly in favour of his
antagonist; who has thereby obtained the
absolute right of possession..The heir
therefore in this case has only a mere right,
and must be strictly held to the proof of it, in
order to recover the lands. 2 William
Blackstone, Commentaries on the Laws of
England 197-98 (1766).
45. Having regard to the above definitions and also taking
into account the use of word merely as a prefix in
protected tenants, it can be said that in a case of merely
protected tenants, one must be put to strict proof to claim
such right. In other words, merely word is used as
unimportant and simple. As such, in case of mere right, the
presumptive evidence of that right is always strongly in
favour of his opponent who has thereby obtained the
absolute right of possession.
46. Bearing in mind the definition and explanation of the
expression mere right and applying the same in the case in
hand, it can be safely said that the appellants must be put to
strict proof that they can be deemed to be protected tenants.
25
47. From the perusal of the records , it is seen that the
appellants even cannot satisfy any of the conditions so as to
bring them within the purview of expression merely
protected tenants and not to speak of tenants or protected
tenants, definitions of which have already been discussed
herein above. The expression merely protected tenants
does not vest any right of tenancy whatsoever within the
ambit of Tenancy Act upon the appellants.
48. Be it noted herein that at one stage, during the
course of hearing, learned counsel for the appellants has
tried to impress upon this Court by submitting that since
Division Bench of this Court had already declared the
appellants to be merely protected tenants, any authorities
and the Courts below including this Court are not permitted
again to sit upon the question of merely protected tenants,
as it is barred by res judicata. We do not find any sufficient
force in such submissions in view of the judicial authority laid
down in this regard. The Supreme Court in a case Madhvi
Amma Bhawani Amma and others v. Kunjikutty Pillai
Meenakshi Pillai and others reported in AIR 2000 SC 2301,
discussed such issue in paragraph 7, the relevant portion of
which is quoted hereunder:
26
..Thus there should be an issue
raised and decided, not merely any
finding on any incidental question for
reaching such a decision. So if no such
issue is raised and if on any other issue,
if incidentally any finding is recorded it
would not come within the periphery of
the principal of res judicata.
49. The issue of merely protected tenants, in the case
in hand, was never raised directly and decided by the
Division Bench of this Court, as claimed, when the Division
Bench only made the observation incidentally while affirming
the status of respondent No. 6 as heir and successor to the
last title holder, which is manifestly evident from the order
dated 12.2.1981.
50. In the premises above, it is held that the findings
recorded and the views expressed by the learned Single
Judge as well as by the Tribunal, cannot be said to be faulty
and this Court is in full agreement with the same which
stands approved.
51. In the result, this Court holds that this appeal is
bereft of merit and the same stands, accordingly, dismissed.
52. However, having considered the facts and
circumstances of the case in its entirety and keeping in view
the continuing litigations, mostly initiated by the appellants,
27
dragging the respondent No. 6 all the time, before judicial
and quasi-judicial forum, we affirm and endorse the
directions given by the Tribunal in its last two paragraphs of
the judgment and order dated 1.6.2007, as quoted in
paragraph no. 18 of this judgment and the competent
authority/authorities is/are directed to cause proper and
effective implementation of the same at the earliest possible,
in any case, within a period of 90 days from today.
(Mansoor Ahmad Mir) (Dr. Aftab H. Saikia)
Judge Chief Justice
Jammu:
February 10, 2011
Tilak, Secy.
