BABU RAM Vs. TEHSILDAR, BISHNAH

JUDGEMENT

(1.) PETITIONER who was owner of the land measuring 51 Kanals 3 Marlas comprised in Khasra Nos. 696, 699, 970 -72, 982 -96, 988 -89 situated in Village Bamal, Tehsil R.S. Pura, initiated proceedings for eviction of respondents No. 2 to 4 under section 46 of the Jammu and Kashmir Tenancy Act vide his application dated 7 -11 -1960 before the Collector, Jammu on the grounds that respondent No.2, who entered as a protected tenant surrendered his protected tenancy rights by an oral notice and entered into fresh agreement for the cultivation of land as a tenant at will alongwith respondents no.3 & 4. This application was resisted by the respondents on the plea that respondent No.2 being 'Karta of the Joint Hindu Family comprised of respondents No. 3 & 4 as its co -parceners, have been in cultivating possession of the land as protected tenants. They also denied the factum of surrender of protected tenancy rights and the execution of the fresh agreement for cultivation of the land as tenants at will. The Assistant Commissioner, who entertained the application granted the relief to the petitioner vide his judgment dated 16 -3 -1965 and arrived at the finding that there has been relinquishment of tenancy rights by oral notice as contemplated by Section 41 of the Tenancy Act. According to this judgment a corresponding entry was made by the Patwari of the factum of surrender of tenancy rights and entry of the fresh agreement in 'Roznamcha Wakayati. Aggrieved of the afore -said order respondents No. 2 to 4 preferred an appeal before the Collector, Jammu who treated the application filed by the petitioner as a suit for resumption of the land and declared the appeal having been abated vide its order dated 13 -12 -1965. Respondents there -after made an application to the Collector in March, 1966 requesting him to review his earlier order dated 13 -12 -1965. However, the review application was dismissed on 26 -4 -1966 on the representation of the respondents, who decided not to pursue the same. Petitioner herein approached the Collector vide his application dated 24 -12 -1965 for execution of the decree passed in his favour by the Assistant Commissioner which had been earlier transferred to him by the Collector. The Assistant Commissioner vide his order dated 17 -5 -1966 filed the proceedings in view of the order of the Collector declaring the appeal to have abated.

(2.) THE matter again came to Assistant Commissioner. He again made a reference to the Collector seeking leave to review his predecessors order dated 13 -12 -1965. The Collector in turn sought permission of the Divisional Commissioner for review of his predecessors order. This reference was contested by the parties and the Divisional Commissioner finally refused to grant permission sought by the Collector vide order dated 17 -5 -1966. Petitioner also filed an appeal against order dated 17 -5 -1966 refusing to execute the decree for ejectment of respondents 2 to 4. This appeal was also dismissed on 9 -6 -1967. This order was again challenged in appeal before the Divisional Commissioner, who treated the same as revision and made a report to the Financial Commissioner vide his order dated 23 -12 -1967 requesting setting aside of the order of the Collector dated 13 -12 -1965. The Divisional Commissioner also requested that the order passed by the Assistant Commissioner on 17 -5 -1966 refusing to execute the decree may also be vacated. The Financial Commissioner dismissed the application of the petitioner for ejectment of respondents No.2 to 4 vide his order dated 26 -2 -1969. He also set aside the entire proceedings. The Financial Commissioner observed as under: - - "The Assistant Commissioner had by deciding the original application ignored the fact that relinquishment of cultivation by an occupancy or protected tenant, even though it can be made orally, cannot be given effect to, except after an order in obtained from the competent Revenue Officer on a regular mutation entered for this purposes. As no mutation of 'Tark -I -Kasht had been entered, the status of Baldav Raj as a protected tenant persists, notwithstanding entries to the contrary made by the Patwari on his own in Roznamcha Waqiati or in Khasra Girdawari. x xx x x Baldev Raj has been entered as a protected tenant in the Khasra Girdawari in 1958 and in earlier years. That status could only be changed on the basis of a mutation order."

(3.) THIS order of the Financial Commissioner became subject matter of challenge in writ petition (WP No. 263/69) before this Court on various legal questions. I need not deal with the same, in these proceedings keeping in view the limited scope of the petition. The writ Court however, dismissed the said writ petition vide order dated 20 -11 -1969 and appeal was preferred before the Letters Patent Bench being LPA No. 10/1970/ Division Bench however, referred the matter to the Full bench, keeping in view the important questions involved. The Full Bench on consideration of the issue passed the following order on 9 -12 -1970: "The learned Financial Commissioner was therefore, not right in observing that since the relinquishment of Kasht was not followed by a regular mutation it could not be given effect to the impugned order of the Financial Commissioner appears to be based on an erroneous assumption of law, the same has to be quashed. Accordingly, I would allow the appeal, set aside the order dated November 20, 1969 of Honble Bhat J dismissing the writ petition, quash the order dated Feb 26, 1967 of the Financial Commissioner and remit the case to the latter with the direction that he should rehear the reference made to him by the Revenue Commissioner and pass fresh orders according to law or by quashing the order dated Dec 13, 1967 passed by the Collector in appeal preferred by the respondent, direct him to rehear the same and pass fresh order according to law. The latter course being in consonance with the requirement of justice will, in my opinion be preferable."