TEHAL SINGH Vs. GH SHAH

JUDGEMENT

(1.) THIS is an appeal under section 86 of the Tenancy Act against the order of the Assistant Commissioner, Doda, dated 14 -7 -1972.

(2.) THE facts which gave rise to this appeal are somewhat cumbersome. A short summary thereof is as follows : - The appellants were the landlords in respect of Khasra No. 3876/Min measuring 5 kanals situate in village Nagar Bhadarwah and the respondent, Ghulam Shah, was the tenant under them. On 12 -8 -2011 the appellants instituted a suit for ejectment of the respondent from the land aforesaid in the court of the Assistant Commissioner, Doda. The respondent appeared before the Assistant Commissioner, filed his written statement but subsequently absented himself with the result that ex parte proceedings were taken against him by the Assistant Commissioner on 19 -11 -1958. The respondent applied for setting aside the ex parte proceedings after an inordinate delay of about 4 years. This application was held by the Assistant Commissioner to be barred by time and was accordingly dismissed. The Assistant Commissioner ultimately passed an ex parte decree in favour of the appellants against the defendant respondent. An application for execution of the decree passed ex parte was made by the decree -holders on 26 -11 -1964. In the year 1964 the Jammu and Kashmir State Legislature passed the Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966. On the date of the coming into force of this Act the proceedings in execution of the decree had not been delivered to the decree -holders. By force of Section 2 of the aforesaid Act, all proceedings had to be stayed for such period as the Government might by notification in the Government Gazette determine. Consistently with the provisions of section 2 of the aforesaid Act the proceedings in the execution of the decree pending before the Assistant Commissioner on the date of the commencement of this Act were stayed by the Assistant Commissioner and it appears that the same remained stayed till the year 1969. On 11 -9 -1969, however, the decree -holders made another application for execution of the decree but the same was dismissed in default on 6 -1 -1970. The decree -holders made yet another application on 22 -2 -1970. This application, however, brought to an end the execution proceedings and the possession of the land was delivered to the decree -holders. Corresponding entries regarding delivery of possession to the decree -holders also appear to have been made in the Register of Girdawari. The first Chapter of the chequered history of the case can conveniently be said to have ended here.

(3.) IT appears that after the passing of the decree by the Assistant Commissioner the defendant -respondent made an application on 28 -11 -1964 for setting aside the ex parte decree but this application was ordered to be kept pending vide an interim order of the Assistant Commissioner which is dated 21 -9 -1966. On 17 -3 -1970 another application was made by the judgment -debtor praying that the possession of the land be restored to him as he had acquired the status of a protected tenant, in respect of the land in question and as under section 47 of the Tenancy Act all ejectment suits pending on the date of the commencement of the Jammu and Kashmir Tenancy (Amendment) Act, 1955, had abated. A grievance that he could not have been dispossessed from the land in execution of the decree at a time other than that mentioned in Appendix (B) of the Act was also made by the judgment -debtor in the said application. The Assistant Commissioner vide his order dated 6 -8 -1970 came _to the conclusion that the judgment -debtor had in fact acquired the status of a protected tenant by virtue of Act No. XII of 1955 and by virtue of section 47 of the aforesaid Act, the suit had abated against him and consequently the ex parte decree passed by his predecessor -in -office in favour of the landlords was an absolute nullity. Despite this finding the Assistant Commissioner refused the relief to the judgment -debtor holding that he had no jurisdiction to reverse the judgment of his predecessor -in -office. He, however, submitted the record of the proceedings to the Divisional Commissioner, Jammu, requesting him to set aside the decree in exercise of his revisional powers. The records along with the findings of the Assistant Commissioner came before the Divisional Commissioner. He declined to exercise his revisional powers holding that the Assistant Commissioner should have left the judgment -debtor to take resort to such remedies as were available to him in law. He directed the Assistant Commissioner by the same order to pass final orders on the application of the judgment -debtor in the light of the observations made by him. This order of the Divisional Commissioner is dated 13 -10 -1971. Thereafter the Assistant Commissioner disposed of the application of the judgment -debtor dated 17 -3 -1970 by the order impugned in this appeal.