GORI SHANKER Vs. MANGOO RAM

JUDGEMENT

(1.) This Letters Patent Appeal arises from the order of learned Single Judge dated 16.2.1999 passed in OWP No.597/1990,whereby the order passed by Special Tribunal Jammu remanding the case back has been upheld. The relevant facts of the case briefly stated are that Ishru was the protected tenant of the land measuring 16 kanals and 8 marls comprising in khasra No.195 situated at village Kalar-himti Tehsil Udhampur. He died somewhere in 1964. After his death his tenancy rights came to be inherited by his minor son Ashok Kumar and entry to this effect was recorded on 22.4.1971 by Tehsildar Udhampur. In khasra girdawari land was recorded in actual cultivation of Gouri Shankar appellant, the real uncle of Ashok Kumar minor. This order of Tehsildar was challenged in appeal before the collector where Gouri Shanker appellant admitted that he was cultivating the land on behalf of his minor nephew Ashok Kumar. The Collector by his order dated 18.3.1972 directed that Ashok Kumar be entered as tenant in actual cultivating possession of the disputed land. Thus the said Ashok Kumar was held to be tenant in actual cultivating possession. It appears that the respondent Mangoo had purchased the disputed land from the owners thereof. On 11.4.1974 Naib Tehsildar after making some enquiry attested a mutation in favour of the respondent Mangoo and recorded him to be in actual cultivating possession of the disputed land since kharif 1971 for the first time.

(2.) The mutation order dated 11.4.1974 was challenged in appeal by minor Ashok Kumar through his uncle Gouri Shanker. The Deputy Commissioner Udhampur (Collector) allowed the appeal by his order dated 16.5.1974,set aside the order of Naib-Tehsildar on the ground that order of vesting of tenancy rights in favour of Ashok Kumar after the death of his father Ishru had become final and therefore entry of his cultivating possession ought to have continued in his favour. The respondent challenged the order of Collector before Financial Commissioner in second appeal but remained unsuccessful, therefore, he filed revision petition before the J&K Special Tribunal Jammu. Learned Special Tribunal by its order dated 03.7.1990 remanded the case back to the Collector for de-novo enquiry and this order of the Tribunal was the subject matter of challenge in OWP No.597/90.

(3.) Some more facts need be noticed. Before the passing of the mutation order dated 11.4.1974 by the Naib-Tehsildar whereby the respondent for the time was recorded to be in cultivating possession of the land, the respondent on 4.5.1973 instituted a civil suit against Gouri Shankar appellant and Ashok Kumar for seeking restoration of possession of the suit land, on the ground that Ishru was sub-tenant under Sarswati an occupancy tenant and after death of Ishru his tenancy stood terminated meaning thereby that Ashok Kumar son of Ishru could not have inherited the tenancy rights and therefore mutation recording possession of Ashok Kumar was illegal. Learned Sub-Judge Udhampur by his order dated 10.8.1973 held the suit abated in view of the provisions of J&K Agrarian Reforms Act for the reason that (plaintiff) respondent was out of possession on 1.9.1971 the crucial date and therefore his rights if any in the land stood extinguished. Learned Sub-Judge observed:- From the perusal of the plaint and the order of the Dy.Commissioner (Collector) dated 18.3.1972 it transpires that the defendant No.2 is in occupation of the suit land while the plaintiff was out of possession on 1.9.1971. In view of the section 3 of the Act the right of ownership of any person extinguishes if the land is not held by him in his personal cultivation on the first day of September 1971. Section 36 of the said Act bars the jurisdiction of the civil court to settle, decide or deal with any question or to determine any matter which is by or under this Act or the rules made thereunder required to be settled decided or deal with or to be determined by the officer or authority appointed under this Act or the rules made thereunder. The plaintiff having extinguished his right in view of section 3 of J&K Agrarian Reforms Act shall lead to the abatement of the suit u/s 52 of the said Act.