{"id":80225,"date":"2011-02-10T00:00:00","date_gmt":"2011-02-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/high-court-of-jammu-and-kashmir-at-vs-custodian-general-s-on-10-february-2011"},"modified":"2018-12-01T19:46:37","modified_gmt":"2018-12-01T14:16:37","slug":"high-court-of-jammu-and-kashmir-at-vs-custodian-general-s-on-10-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/high-court-of-jammu-and-kashmir-at-vs-custodian-general-s-on-10-february-2011","title":{"rendered":"High Court Of Jammu And Kashmir At … vs Custodian General S on 10 February, 2011"},"content":{"rendered":"
Jammu High Court<\/div>\n
High Court Of Jammu And Kashmir At … vs Custodian General S on 10 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nLPAOW NO. 4 OF 2010    \nOnkar Singh & ors. \nPetitioners\nState of J&K and ors\nRespondent  \n!Mr. R. S. Pathania, Advocate\n^Mr. A. G. Sheikh, Advocate for 3 & 4.Mr. Amrish Kapoor, Advocate for 6\n\nHonble Mr. Justice Dr. Aftab H. Saikia, Chief Justice\nHonble Mr. Justice Mansoor Ahmad Mir, Judge  \nDate: 10.02.2011 \n:J U D G M E N T :\n<\/pre>\n
Dr. Saikia, CJ:\n<\/p>\n
Heard Mr. R. S. Pathania, learned counsel for the
\nappellants as well as Mr. A. G. Sheikh, learned counsel for
\nrespondent Nos. 3 and 4 and Mr. Amrish Kapoor, learned
\ncounsel for respondent No. 6.\n<\/p>\n
2<\/span><\/p>\n
2. This Letters Patent Appeal witnesses a challenge to
\nthe Judgment dated 1.1.2010 passed by the learned Writ
\nCourt in OWP No. 507\/2007, whereby the learned Single
\nJudge dismissed the writ proceedings initiated by the
\nappellants questioning the legality and sustainability of the
\norder dated 1.6.2007 rendered by the Jammu and Kashmir
\nSpecial Tribunal, Jammu (for short, the Tribunal),
\nclaiming, inter alia, primarily that they were protected
\ntenants of the land in dispute and respondent No. 6 had no
\nlegal rights whatsoever to claim the said land, holding that\n<\/p>\n
(a) there was no record\/material to establish the status of
\nthe appellants as protected tenants; and (b) since the
\ndisputed land was deleted from the records of Evacuee
\nDepartment in the year 1983, the contention of the
\nappellants that land was allotted to them could not be
\naccepted.\n<\/p>\n
3. This case carries a chequered history. The facts of
\nthis case traced their roots way back to the time of partition
\nin the year 1947.\n<\/p>\n
4. The lis involved herein pertains to a land measuring
\n14 kanals falling in Survey Nos. 701, 720, 767 and 890 at
\nvillage Kathil Dhangu Morha Punna Tehsil Ramnagar.\n<\/p>\n
3<\/span><\/p>\n
5. Respondent No. 6, Mst. Reshma Bibi D\/o Late
\nShukurdin, is the sole surviving member of the family of
\nlate Shukurdin, who had died, along with all his other family
\nmembers during the holocaust which followed partition of
\nIndian Subcontinent in the year 1947.\n<\/p>\n
6. Respondent No. 6, who was a minor and unmarried at
\nthat time, could not cultivate and manage the property left
\nby her late father Shukurdin and the appellants, who were
\ndisplaced persons from Tehsil Shakargarh, (West Pakistan)
\nand Non State Subjects, took full advantage of the
\nprevailing circumstances and occupied the land left behind
\nby late Shukurdin and started cultivating the same without
\nany valid allotment\/contract\/lease\/engagement and
\ncontinued to be in the physical possession of the disputed
\nland till date without any legal authority.\n<\/p>\n
7. In the meantime, respondent no. 6 got married to one
\nShri Kirpal Singh resident of Batala in the district of
\nGurdaspur and could not get back the possession of the land
\nleft by her father Late Shukurdin.\n<\/p>\n
8. However, in the year 1978, inheritance mutation No.
\n368 of the disputed land was attested in favour of
\nrespondent No. 6 on 7.5.1978 and the same had also been
\n4<\/span>
\nupheld by the learned Deputy Commissioner, Udhampur
\nvide his order dated 12.1.1979 and by the learned Divisional
\nCommissioner, Jammu vide his order dated 20.05.1980 and
\nfinally approved by the Division Bench of this High Court
\nvide order dated 12.2.1981.\n<\/p>\n
9. Despite all those legal orders, the respondent No.6
\ncould not get back the possession of the land. On
\n13.08.1981, respondent No. 6 filed an application for
\nrestoration of 14 kanals of land, as described hereinabove,
\nheld by the appellants before the District Assistant
\nCustodian, Udhampur, who vide his order dated 14.06.1983
\nrestored the land in favour of respondent No. 6 deleting the
\nsame from Evacuee Property.\n<\/p>\n
10. That order was set aside by the Custodian Evacuee
\nProperty, Jammu vide order dated 5.12.1983 and the case
\nwas remanded to the District Assistant Custodian for fresh
\nenquiry. However, the District Assistant Custodian consigned
\nthe file to records in default by his order dated 18.01.1985.\n<\/p>\n
11. On the application of the respondent No. 6, the
\nCustodian called for the record of the case from the court of
\nDistrict Assistant Custodian and simultaneously the
\nappellants filed transfer application before the Custodian
\n5<\/span>
\nGeneral. The Custodian General decided the application and
\nsent the case back to the Custodian.\n<\/p>\n
12. Thereafter, the Custodian vide his order dated
\n6.1.1990 upheld the order passed by the District Assistant
\nCustodian on 14.06.1983 with further directions that
\npossession of the property be delivered to respondent No. 6
\nunder Rule 33 of the Jammu and Kashmir State Evacuees
\n(Administration of Property) Rules, Svt, 2008 framed under
\nthe Jammu and Kashmir State Evacuees (Administration of
\nProperty) Act, Svt, 2006.\n<\/p>\n
13. The appellants went on appeal before the Custodian
\nGeneral, who vide order dated 19.3.1991 upheld the order
\ndated 6.1.1990 of the Custodian Evacuee Property, Jammu.\n<\/p>\n
14. The appellants challenged order dated 19.03.1991
\npassed by the Custodian General before the Tribunal which,
\nwhile setting aside the order of the Custodian General,
\nremanded the case to the Custodian Evacuee Property vide
\norder dated 26.12.1991 for passing fresh order in the light
\nof the observations contained in the order.\n<\/p>\n
15. The Custodian passed order dated 5.11.1992 in
\npursuance of order dated 26.12.1991 passed by the
\nCustodian General. Custodians order dated 5.11.1992 was
\n6<\/span>
\nchallenged by the appellants in the revision petition which
\nwas disposed of by the Tribunal vide order dated
\n17.10.1994, wherein it was specifically reflected that the
\nissue of succession of the land in question in favour of
\nrespondent No. 6 was set at rest by upholding mutation
\nNo. 368 dated 7.5.1978 attested in favour of respondent No.\n<\/p>\n
6.\n<\/p>\n
16. For ready reference the order dated 17.10.1994 may
\nbe quoted as under:-\n<\/p>\n
.I have gone through the contents of the
\nmutation No. 368 dated 7.5.1978 whereby
\ninheritance of Mohd Mansa, Mohd, Hussain
\nand Bashir have been devolved on Resham
\nBibi. This order was upheld by the Deputy
\nCommissioner, Udhampur and Divisional
\nCommissioner, Jammu in appeals before
\nthem. In its finality, the Division Bench of the
\nHonble High Court has by virtue of order
\ndated 12.02.1981 observed as under:-
\nthe authorities below have rightly held
\nthat the petitioners being merely protected
\ntenants, they have no locus standi to
\nchallenge the mutation as regards the
\nownership of the land in dispute. Accordingly,
\nwe see no good ground for interference with
\ntheir order refusing to interfere with the
\nmutation No. 368 dated 7.5.1978 attested in
\nfavour of respondent no. 1 as an heir and
\nsuccessor to the last title holder. The
\npetitioner has no merit in it. It is dismissed
\naccordingly
\nIt becomes amply clear that the Honble
\nHigh Court has set at rest the issue of
\n7<\/span>
\nsuccession by upholding the mutation No. 368 <\/span>
\ndated 7.5.1978 attested in favour of Resham
\nBibi.\n<\/p>\n
As far as the claim of the petitioners is
\nconcerned, they are non state subjects, who
\nwere allotted land in Punjab being DPs from
\nWest Pakistan. They could not produce any
\nallotment order, even made in their favour in
\nrespect of land in dispute by any authority.
\nFor the foregoing reasons, I do not find
\nany force in the revision petition, which is
\naccordingly, rejected\n<\/p>\n
17. The order dated 17.10.1994 of the Tribunal was
\nchallenged by the appellants before this High Court through
\nthe medium of the writ petition and the High Court by its
\norder dated 09.11.2008 passed in OWP No. 779\/94, having
\nheard the parties, remanded the case to the Tribunal for
\ndisposal in accordance with law with an observation that the
\ndecision given in Chuni Lal v. Custodian General decided on
\n15th September 1998 in OWP no. 705\/1985, wherein
\nreliance was placed on the decision reported in Ashwani
\nKumar v. J&K Special Tribunal 1988 J&K 65, be also
\nnoticed. The relevant portion of the order made be quoted
\nas under:\n<\/p>\n
The above aspect of the matter appears
\nus to have been taken note of by the J&K
\nSpecial Tribunal. In view of this, the case is
\nremanded back to the Tribunal as it fits (sick)
\ndeemed proper. The petitioner would be at
\n8<\/span>
\nliberty to raise any other arguments, which be
\ndeemed proper. Decision given in Chuni Lal
\nVs. Custodian Generals, decided on 15th Sept.
\n1998 i.e. O.W.P. 705\/1985, wherein reliance
\nwas placed on the decision reported as
\nAshwani Kumar Vs. J&K Special Tribunal,
\ndisposed of accordingly. The parties through
\ntheir counsel are directed to appear before
\nthe J&K Special Tribunal on 28th December,
\n1998. Till the matter is redecided parties to
\nmaintain status quo.\n<\/p>\n
18. The Tribunal, on such remand, by its judgment and
\norder dated 1.6.2007, after hearing learned counsel for the
\nparties and also taking note of the entire facts on record as
\nwell as having discussed the related law of Tenancy,
\nexplaining the term Rent, Landlord and Tenancy, came
\nto the finding that the plea of the appellants that they
\nacquired the status of protected tenants, was untenable and,
\naccordingly, the same was rejected, recording further that
\nthere never existed any tenancy between the parties to the
\nland in dispute and the appellants were and continue to
\nremain as trespassers and deserved to be dispossessed
\nfrom the land in dispute forthwith upholding the claim of
\nrespondent No. 6. Accordingly, the Tribunal passed the
\nfollowing direction:\n<\/p>\n
In view of the foregoing discussion,
\nI have no alternative except to dismiss
\nthe petition, as there never existed any
\ntenancy between the parties to the
\ndisputed land and the petitioners were
\n9<\/span>
\ncontinued to remain as trespassers and
\ndeserve to be disposed from the disputed
\nland forthwith and uphold the claim of
\nMst. Reshma Bibi (Respondent) to get the
\npossession of the disputed land without
\nany further delay.\n<\/p>\n
I, therefore, accept the claim of the
\nrespondent (Mst. Reshma Bibi) and direct
\nthe Deputy Commissioner Udhampur to
\ndisposes the petitioners from the
\ndisputed land and put Mst. Reshma Bibi
\nin physical possession under his personal
\nsupervision after the expiry of a period of
\nthree months from the date of issue of
\nthis order. A copy of this order should
\nalso be sent to the Deputy Commissioner
\nUdhampur for his information and
\ncompliance. This being a classical case of
\nmiscarriage and denial of justice and long
\nlong harassment of the old, helpless, frail
\nand poor lady who is already sitting in
\nthe departure lounge for life) for the last
\n30 years by the rich, influential and
\nmighty petitioners, accordingly, I impose
\na cost of Rs. 10,000\/- on the petitioners
\nto be paid to Smt. Reshma Bibi. Stay
\norder if any, issued by this Tribunal is
\nalso vacated. After due completion the
\nfile can be consigned to records.\n<\/p>\n
19. Being aggrieved by the findings recorded and views
\nexpressed by the learned Tribunal by its order dated
\n01.06.2007, the appellants moved the Writ Court in the
\ninstant Writ Petition, OWP No. 507\/2007.\n<\/p>\n
20. The Writ Court by its impugned judgment and order
\ndated 1.1.2010, on consideration of extensive
\narguments of learned counsel for the parties and upon
\n10<\/span>
\nclose perusal of the Tribunals judgment and order
\ndated 01.06.2007 including the entire records so placed
\nbefore it, arrived at the findings that the issues raised in
\nthe instant writ petition were purely factual in nature
\nand the same were addressed properly and adequately
\nby the authorities below including the Tribunal. The Writ
\nCourt observed that so far as the issue of protected
\ntenancy was concerned, the Tribunal discussed the
\nmatter in details and found that the appellants failed to
\nproduce any revenue entry or Girdawari or mutation
\nunder Section 4 of the Agrarian Reforms act, 1976 (for
\nshort the Act), which declared them as protected
\ntenants\/prospective owners and consequently hesitated
\nto declare them as protected tenants.\n<\/p>\n
21. It was further held by the learned Single Judge that
\nthe land in question could not be said to be allotted in
\nfavour of the appellants as in way back in 1983, the
\nland in question was already deleted from the records of
\nthe Evacuee Department.\n<\/p>\n
22. Legality and correctness of the judgment and order
\ndated 1.1.2010 passed by the Writ Court has been
\nquestioned before this Writ Appellate Court.\n<\/p>\n
11<\/span><\/p>\n
23. Rejecting the findings and observations recorded by
\nthe Writ Court, Mr. Pathania, learned counsel, has
\nvehemently contended that the Writ Court committed
\ngrave error in law as well as on facts in dismissing the
\nwrit petition wherein the appellant categorically agitated
\nthe illegality and irregularity committed by Tribunal in
\nits judgment and order dated 01.06.2007 holding that
\nappellants were trespassers and deserved to be
\ndispossessed from the suit land and physical possession
\nof the disputed land to be handed over to respondent
\nNo.6, because respondent no.6 had never acquired any
\nright whatsoever over the land due to the fact that the
\nsame was in the continuous cultivation and occupation
\nunder them since 1948 by acquiring the status of
\nprotected tenant. It is further stated that the learned
\nSingle Judge also failed to appreciate in its proper letter
\nand spirit the mandate of Tenancy Act amended in 1965
\nmore particularly the Writ Court did not consider the
\nprovision of Section 15-A of the Act pertaining to the
\nprovision of protected tenant at all. It is also submitted
\nthat the Writ Court did not answer the question raised
\nas to whether once a property was not notified as an
\nEvacuees Property in terms of Section 6 of the Evacuees
\n12<\/span>
\nProperty Act, no application under Section 8 of the said Act
\ncould be entertained by the Evacuees Property Authority.
\nIt is also argued that where there is specific direction given
\nby Division Bench of this Court by its order dated
\n12.02.1981 to the Tribunal to take note of the decision
\ndelivered by this Court in OWP No. 705\/1985 titled Chuni
\nLal v. Custodian General and Ashwani kumar v. J&K
\nTribunal reported in 1988 KLJ 65, the Tribunal preferred
\nnot to follow the said direction of the High Court rather the
\nTribunal went step ahead declaring that appellants were
\nnot protected tenant whereas the Division Bench of this
\nCourt clearly accepted the appellants as merely protected
\ntenants. In last leg of his submissions, Mr. Pathania,
\nlearned counsel for the appellants has submitted that once
\nthe Division Bench of this Court by its order dated
\n12.2.1981 affirmed that the appellants were merely
\nprotected tenants, the authorities and the courts below
\nare not permitted to consider the same issue, inasmuch as
\nthe status of the appellants, as merely protected
\ntenants, was finally decided by this Court in Division
\nBench.\n<\/p>\n
24. In support of the impugned judgment and order,
\nMr. Kapoor, learned counsel for respondent No.6, has
\n13<\/span>
\nstraightway drawn our attention to the findings,
\nobservations and discussions recorded by the Tribunal
\nwhile passing its order on 01.06.2007. According to
\nhim, the Tribunal passed a detailed judgment wherein
\nevery aspect of facts and law were vividly dealt with and
\nhaving considered and on scrupulous scrutiny of the
\nentire factual situation, rejected all the contentions and
\nsubmissions canvassed on behalf of the appellants. The
\nTribunal in reaching at the conclusion, it is submitted,
\nheld that the respondent No.6 admittedly was the sole
\nsurvivor of her father and was legitimately entitled to
\nthe property in question whereas the appellants were
\nnever tenants and continued to remain in land in
\nquestion as trespassers and encroachers till date. The
\nlearned counsel has emphasized that the decision of the
\nTribunal was wholly based on the materials available on
\nrecord. It is pointed out by the learned counsel for the
\nrespondent No. 6, that the entire issues raised before
\nthe Writ Court would clearly go to show that the
\nappellants carried a bundle of disputed facts for
\nadjudication before the Writ Court which did not come
\nwithin the purview of the writ jurisdiction. According to
\nhim, the Writ Court by the impugned order rightly and
\n14<\/span>
\nlegitimately accepted the findings arrived at by the
\nTribunal in its order dated 01.06.2007 and taking
\nsimilar view that of the Tribunal, dismissed the writ
\npetition. The impugned judgment and order does not,
\ntherefore, warrant any interference by the Writ
\nAppellate Court.\n<\/p>\n
25. Due consideration has been given to the in-depth
\narguments and submissions placed before us by the
\nlearned counsel representing the parties. The entire
\nrecords including various judgments and orders passed
\nby all the authorities on different times pertaining to
\nthis issue have been meticulously scrutinized.\n<\/p>\n
26. Having considered the facts and circumstances of the
\ncase in its totality, it appears that the basic issue that
\nrevolves around is the inheritance of the property in
\nquestion.\n<\/p>\n
27. It is concurrently held by the authorities and Courts
\nbelow that the land in question was left by one Shukurdin,
\nfather of respondent No. 6, who along with other family
\nmembers including her brothers were killed during the
\nmassacre at the time of partition in 1947 and, at the relevant
\ntime, she was minor and, later on, got married to one Kirpal
\n15<\/span>
\nSingh. During the turmoil, the appellants, who were
\ndisplaced persons, taking full advantage of the prevailing
\ncircumstances, occupied the land left by her father and
\nstarted cultivating the same without any valid documents as
\nregards allotment or lease whatsoever and continued to be in
\nphysical possession and cultivating without any legal
\nauthority.\n<\/p>\n
28. Respondent No. 6, however, got inheritance mutation of
\nthe land in question being mutation no. 368 dated 7.5.1978
\nand this was finally upheld by the Division Bench of the High
\nCourt by order dated 12.02.1981, which attained finality.
\nOrder dated 12.2.1981 would be necessary to read and the
\nsame is quoted as under:-\n<\/p>\n
The authorities below have rightly held
\nthat the petitioners being merely protected
\ntenants they have no locus standi to challenge
\nthe mutation as regards the ownership of the
\nland in dispute accordingly we see no good
\nground for interfering with their order refusing
\nto interfere with the mutation No. 368 dated
\n07.05.1978 attested in favour of respondent
\nno. 1 as heir and successor to the last title
\nholder. The petition has no merit in it. It is
\ndismissed accordingly.\n<\/p>\n
29. The above order clearly reflects that the ownership to
\nthe land in dispute has been vested upon respondent No. 6
\n16<\/span>
\nbeing heir\/successor of the last title holder and the
\nappellants are being merely protected tenants.\n<\/p>\n
30. In view of the above position, the primary questions to
\nbe answered herein is that (i) as to whether the appellants
\nare the protected tenants and (ii) what is the effect of
\nexpression merely protected tenants and the answer to this
\nquestion would clinch the whole issue.\n<\/p>\n
31. To become a protected tenant, the person must be a
\ntenant first. The word tenant has been defined in the
\nJammu and Kashmir Tenancy Act, 1980 (1923 A.D.)(for short
\nthe Tenancy Act), which reads as under:-
\n2(5) tenant means a person who
\nholds land, under the State, or under
\nanother person, and is, or but for a special
\ncontract in that behalf would be, liable to
\npay rent for that land, to the State or to
\nthat person; but it does not include
\ni. an inferior landholder, or
\nii. a person to whom a holding
\nhas been transferred, or an
\nestate or holding has been let
\non farm, for the recovery of an
\narrear of land revenue, or of a
\nsum recoverable as such, or
\niii. a mortgagee of the rights of a
\nlandholder.\n<\/p>\n
32. The above definition would go to show that to become
\na tenant, a person must hold land under an individual or
\n17<\/span>
\nState with a fixed liability to pay rent for that land under an
\nagreement. At the same time, both Rent and Landlord are
\nalso defined in Section 2(2) and Section 2(6) of the Tenancy
\nAct respectively. Sections 2(2)and 2(6) of the Tenancy Act
\nread as under:\n<\/p>\n
2(2) rent means what ever is
\npayable to a landlord in money, kind or
\nservice by a tenant, on account of the
\nuse or occupation of land held by him or
\non account of the use of water for
\nirrigation.\n<\/p>\n
2(6) Landlord means a person
\nunder whom a tenant holds land, and to
\nwhom the tenant is, or but for a special
\ncontract would be, liable to pay rent for
\nthat land.\n<\/p>\n
33. The definitions reproduced above would explicitly
\nindicate that there must be tenancy created and existed
\nbetween the parties so as to become a tenant and landlord
\nand that too, obviously, by paying the rent.\n<\/p>\n
34. Chapter 2-A of the Tenancy Act has exclusively dealt
\nwith the Protected Tenants and the same contains in as
\nmany as three Sections namely, 15-A, substituted by act XII
\nof 1955, Section 15-B substituted by Act XVI of 1965 and
\nSection 15-C inserted by Act VII of 2005.\n<\/p>\n
18<\/span><\/p>\n
35. For determination of the issue in hand, it would be
\nrelevant and necessary to read Section 15-A, which provides
\nfor Protected Tenants and 15-B which lays down the
\nProcedure for declaration of Protected Tenants. These
\nSections may be quoted as under:\n<\/p>\n
15-A Protected Tenants
\n(1) All tenants other than occupancy
\ntenants and such fixed terms tenants as
\nhold malairi or vegetable growing land shall
\nbe deemed to be protected tenants and
\nrecorded as such in respect of such land as
\nis held by them in their cultivating
\noccupation at the time of the
\ncommencement of the Jammu and Kashmir
\nTenancy (Amendment) Act (1965).\n<\/p>\n
Provided that the right of protected
\ntenancy of a tenant shall cease when a
\nlandlord resumes land for personal
\ncultivation under Section 49 of the Act:
\nProvided further that the right of the
\nprotected tenancy of a tenant holding under
\na lessee or a mortgagee shall also cease on
\nthe expiry of the lease or mortgage, as the
\ncase may be, if the lesser or the mortgager
\nwas in self cultivating occupation of such
\nland immediately before such land was
\nleased or mortgaged and such land
\nincluding the other land in his personal
\ncultivation does not exceed the size of the
\nholding specified for a landlord in clause (a)
\nof Section 45 of the Act;\n<\/p>\n
Provided also that the right of protected
\ntenancy shall not accrue to a tenant
\nadmitted by a protected tenant;\n<\/p>\n
19<\/span><\/p>\n
Provided further that a tenant admitted
\nafter the coming into force of Act XII of
\n1955 shall not be entitled to such right in
\nrespect of such portion of land as together
\nwith what he holds in ownership right or in
\ntenancy right as an occupancy or protected
\ntenant or both does not exceed 2 acres of
\nAbi or 4 acres of Khushki land in Kashmir
\nprovince including the Districts of Ladakh
\nand Gilgit and 4 acres of Abi or 6 acres of
\nKhushki in Jammu province.\n<\/p>\n
15-B Procedure for declaration as
\nProtected Tenant\n<\/p>\n
(i) Any tenant who is entitled to a right
\nof protected tenancy but is not entered as
\nsuch may make an application for being
\ndeclared and entered as a protected tenant
\nwithin one year of the attestation of the
\nquadrennial Jamabandi of the village in
\nwhich such land is situate prepared
\nimmediately after coming into force of
\nJammu and Kashmir Tenancy (Amendment)
\nAct 1965.\n<\/p>\n
Provided that where the quadrennial
\nJamabandi is attested without the note
\nbeing recorded, or without the entries being
\nread out to the tenants and landlord in the
\nmanner prescribed under Section 15-A, the
\nperiod of one year shall be reckoned form
\nthe date the Jamabandi is attested in such
\nmanner.\n<\/p>\n
(ii)Notice of every application presented
\nby the tenant under Sub Section (i) shall be
\ngiven to the landlord and no order shall be
\nmade on such application unless the land
\nlord has been given an opportunity to be
\nheard.\n<\/p>\n
(iii) On an application by the landlord or
\na tenant, a tenant may be declared a
\nprotected tenant and recorded as such, if
\n20<\/span>
\nthe land lord has agreed to confer on him
\nthe right of protected tenancy.\n<\/p>\n
36. An ordinary reading of the above provisions of law
\npertaining to protected tenants would amply go to show that
\nthe protected tenants are those who are tenants other than
\noccupancy tenants and such fixed term tenants as hold
\nmaliari or vegetable growing land shall be deemed to be
\nprotected tenants and recorded as such in respect of such
\nland as is held by them in their cultivating occupation at the
\ntime of the commencement of the Act since its amendment
\nin 1965.\n<\/p>\n
37. At the same time, Section 15-B provides for Procedure
\nfor declaration of Protected Tenant which stipulates that a
\ntenant, who is entitled to a right of protected tenancy but is
\nnot entered as such, may make an application for being
\ndeclared and entered as a protected tenant within one year
\nof the attestation of the quadrennial Jamabandi of the village
\nin which such land is situated prepared immediately after
\ncoming into force of the Act as amended in 1965.\n<\/p>\n
38. In the instant case, as has been revealed from careful
\nscrutiny of the records, the appellants at no point of time
\nwere protected tenants or got any such declaration as
\nprovided under Section 15-A and 15-B respectively. The
\n21<\/span>
\nrecord made available does not even make any whisper that
\nthere was any entry declaring the appellants as protected
\ntenants in their respective Jamabandi as required under
\nSection 15-B of the Tenancy Act.\n<\/p>\n
39. Only plea which has been continuously and consistently
\npressed upon in the contentions and submissions canvassed
\non behalf of the appellants that they are in continuous
\npossession of the disputed land and have been cultivating the
\nsame right since 1948 and hence they cannot be
\ndispossessed save and except following the procedure for
\nejectment provided under the Statute especially when
\nrespondent No.6 never proceeded for the resumption of the
\ndisputed land under Section 49 of the Tenancy Act, which
\nprescribes for ejectment in case of resumption for personal
\ncultivation, by landlord, does not hold water in the given fact
\nsituation.\n<\/p>\n
40. It is surprising that how the question of eviction of the
\nappellants from the land in question by respondent No.6
\naccepting her to be the landlord, would, in the backdrop of
\nfactual premises as narrated above, arise. In the humble
\nopinion of the Court, supported by the concurrent findings
\nof all the competent authorities below including the Division
\n22<\/span>
\nBench of this Court, it is pure and simply case of ownership
\nwhich has been vested upon respondent No.6 by virtue of
\nMutation 368 dated 7.5.1978 and also land on being deleted
\nas Evacuee Property vide order dated 14.6.1983 by the
\nAssistant Custodian, Udhampur.\n<\/p>\n
41. Having gone through the definition of tenant, rent,
\nlandlord and protected tenant, as quoted above, there is
\nnothing on record to authenticate that the appellants have
\never got the status of mere protected tenants.\n<\/p>\n
42. In the case in hand, on consideration of the judgments
\nand orders passed by various authorities, it is seen that the
\nappellants except claiming that they have been cultivating
\nthe land in question since 1948, they failed to produce any
\nsuch document\/documents to impress this Court with regard
\nto creation of any tenancy or allotment or revenue entry so
\nas to make them protected tenants. Even in the order dated
\n12.2.1981 passed by the Division Bench of this Court in Writ
\nPetition No. 629\/1981, as quoted above, which has been
\nstrongly relied upon by the appellants as to be the final order
\nof declaring them to be protected tenants, ex-facie, it is
\nabundantly clear, that High Court only observed to the effect
\nthat authorities below had rightly held the appellants being
\n23<\/span>
\nmerely protected tenants had not locus standi to challenge
\nthe mutation as regards ownership of the land in dispute.
\nThe appellants were simply termed as merely protected
\ntenants and not beyond that.\n<\/p>\n
43. Now, the question is what is the scope of word merely
\nqualifying the expression protected tenants. The Dictionary
\nmeaning of the word merely being adverb is derived from
\nthe word mere, being Noun. The word mere when is
\nused as an adjective, means that it is used when one wants
\nto emphasise how small or unimportant etc. the matter is.
\n(Oxford Advanced Learners Dictionary by A. S. Horn by 6th
\nEdition (2000).\n<\/p>\n
44. Although the word mere is defined in Blacks Law
\nDictionary 7th Edition (1999) (for short Blacks) as (Law of
\nFrench) Mother, as in the phrase en ventre sa mere (in its
\nmothers womb), the same can be well understood and
\nconstrued by another definition of the phrase mere right
\nwhich means an abstract right in property without possession
\nor even the right of possession (Blacks). It is also quoted in
\nBlacks that referring to Commentaries on the Laws of
\nEngland 197-98 (1766) William Blackstone, as under:
\nThe mere right of property, the jus
\npropprietatis, without either possession or
\n24<\/span>
\neven the right of possession. This is
\nfrequently spoken of in our books under the
\nname of the mere right, jus merum; and the
\nestate of the owner is in such cases said to
\nbe totally devested, and put to a right. A
\nperson in this situation may have the true
\nultimate property of the lands in himself: but
\nby the intervention of certain circum-stances,
\neither by his own negligence, the solemn act
\nof his ancestor, or the determination of a
\ncourt of justice, the presumptive evidence of
\nthat right is strongly in favour of his
\nantagonist; who has thereby obtained the
\nabsolute right of possession..The heir
\ntherefore in this case has only a mere right,
\nand must be strictly held to the proof of it, in
\norder to recover the lands. 2 William
\nBlackstone, Commentaries on the Laws of
\nEngland 197-98 (1766).\n<\/p>\n
45. Having regard to the above definitions and also taking
\ninto account the use of word merely as a prefix in
\nprotected tenants, it can be said that in a case of merely
\nprotected tenants, one must be put to strict proof to claim
\nsuch right. In other words, merely word is used as
\nunimportant and simple. As such, in case of mere right, the
\npresumptive evidence of that right is always strongly in
\nfavour of his opponent who has thereby obtained the
\nabsolute right of possession.\n<\/p>\n
46. Bearing in mind the definition and explanation of the
\nexpression mere right and applying the same in the case in
\nhand, it can be safely said that the appellants must be put to
\nstrict proof that they can be deemed to be protected tenants.\n<\/p>\n
25<\/span><\/p>\n
47. From the perusal of the records , it is seen that the
\nappellants even cannot satisfy any of the conditions so as to
\nbring them within the purview of expression merely
\nprotected tenants and not to speak of tenants or protected
\ntenants, definitions of which have already been discussed
\nherein above. The expression merely protected tenants
\ndoes not vest any right of tenancy whatsoever within the
\nambit of Tenancy Act upon the appellants.\n<\/p>\n
48. Be it noted herein that at one stage, during the
\ncourse of hearing, learned counsel for the appellants has
\ntried to impress upon this Court by submitting that since
\nDivision Bench of this Court had already declared the
\nappellants to be merely protected tenants, any authorities
\nand the Courts below including this Court are not permitted
\nagain to sit upon the question of merely protected tenants,
\nas it is barred by res judicata. We do not find any sufficient
\nforce in such submissions in view of the judicial authority laid
\ndown in this regard. The Supreme Court in a case Madhvi
\nAmma Bhawani Amma and others v. Kunjikutty Pillai
\nMeenakshi Pillai and others<\/a> reported in AIR 2000 SC 2301,
\ndiscussed such issue in paragraph 7, the relevant portion of
\nwhich is quoted hereunder:\n<\/p>\n
26<\/span><\/p>\n
..Thus there should be an issue
\nraised and decided, not merely any
\nfinding on any incidental question for
\nreaching such a decision. So if no such
\nissue is raised and if on any other issue,
\nif incidentally any finding is recorded it
\nwould not come within the periphery of
\nthe principal of res judicata.\n<\/p>\n
49. The issue of merely protected tenants, in the case
\nin hand, was never raised directly and decided by the
\nDivision Bench of this Court, as claimed, when the Division
\nBench only made the observation incidentally while affirming
\nthe status of respondent No. 6 as heir and successor to the
\nlast title holder, which is manifestly evident from the order
\ndated 12.2.1981.\n<\/p>\n
50. In the premises above, it is held that the findings
\nrecorded and the views expressed by the learned Single
\nJudge as well as by the Tribunal, cannot be said to be faulty
\nand this Court is in full agreement with the same which
\nstands approved.\n<\/p>\n
51. In the result, this Court holds that this appeal is
\nbereft of merit and the same stands, accordingly, dismissed.\n<\/p>\n
52. However, having considered the facts and
\ncircumstances of the case in its entirety and keeping in view
\nthe continuing litigations, mostly initiated by the appellants,
\n27<\/span>
\ndragging the respondent No. 6 all the time, before judicial
\nand quasi-judicial forum, we affirm and endorse the
\ndirections given by the Tribunal in its last two paragraphs of
\nthe judgment and order dated 1.6.2007, as quoted in
\nparagraph no. 18 of this judgment and the competent
\nauthority\/authorities is\/are directed to cause proper and
\neffective implementation of the same at the earliest possible,
\nin any case, within a period of 90 days from today.
\n(Mansoor Ahmad Mir) (Dr. Aftab H. Saikia)
\nJudge Chief Justice
\nJammu:\n<\/p>\n
February 10, 2011
\nTilak, Secy.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court High Court Of Jammu And Kashmir At … vs Custodian General S on 10 February, 2011 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-80225","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nHigh Court Of Jammu And Kashmir At ... vs Custodian General S on 10 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/high-court-of-jammu-and-kashmir-at-vs-custodian-general-s-on-10-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"High Court Of Jammu And Kashmir At ... vs Custodian General S on 10 February, 2011 - 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