S KIRPAL SINGH Vs. S SUCHET SINGH

JUDGEMENT

(1.) THE facts of the case in brief are these. Land measuring 48 kanals 10 marlas situate in village Bhambo Chak Tehsil Samba was alloted to late S Bella Singh under Cabinet Order No. 578 -C of 1954 as he was a displaced person from Pak occupied Kashmir. By virtue of section 3 -A of the Agrarian reforms Act, Bella Singh became occupancy tenant of the allotted land. After his death Naib Tehsildar, Samba by order dated 16 -07 -1992 attested mutation No. 29 of village Bhambo Chak in favour of the appellant and respondent -1, the two sons of Bella Singh, in equal share. This order was challenged in appeal before the Addl. Deputy Commissioner by respondent Suchet Singh. The appeal was dismissed on 18 -03 -1985 holding that the mutation has been rightly attested in favour of male lineal descendants of the occupancy tenant. A further appeal to the Divisional Commissioner met the same fate on 25 -02 -1986. The Divisional Commissioner specifically returned a finding that succession of occupancy tenant is regulated by section 67 of the Tenancy Act and, therefore, mutation was rightly attested in favour of both the sons of the deceased -tenant in equal share. The revision petition filed before the Financial Commissioner challenging the aforesaid order was also dismissed on 19 -07 -1991. One of the grounds of challenge before the appellante and revisional forums was that father of the appellant has executed a will in favour of respondent Suchet Singh by virtue of which the entire land was to vest in him. This plea was rejected by them on the ground that right of occupancy tenant cannot be transferred by will. This argument was, however, rejected by the Superior authorities holding that mode of succession of occupancy rights is governed by section 67 of the Tenancy Act and a will or bequest is not recognised by it.

(2.) NOT satisfied with the decision of the Revenue Officers respondent Suchet Singh challenged these orders by filing writ petition on the ground that if the occupancy rights can be transferred by sale, mortgage and gift, there is no reason why the will should be excluded.

(3.) THE writ court allowed the petition holding that right to transfer by sale, gift or mortgage includes other modes of transfer also. The writ court, therefore, directed that estates of Bella Singh will devolve on respondent -1 to the exclusion of the appellant.