PARKASHAN Vs. AB RASHID

JUDGEMENT

(1.) THE facts of this case have been comprehensively narrated by late Bakshi J in his order dated 6 -6 -1972. Only such other facts as are necessary for appreciating the points which fall for decision now are proposed to be stated here and the same are as follows:

(2.) ONE , Nathu Ram, owned land measuring 29 kanals and 4 marlas in khasra Nos 121, 125, 125 min and 155 in khewat No. 8 in village Nehari Tehsil Samba. He mortgaged this land on 10 -5 -1975 Bikratni to one, Bhagoo, Abdul, Rashid, respondent in this appeal is the successor -in -interest of Nathu. Bhagoo died and was succeeded by his son, Sant Ram who inducted Inder the father of respondent No. 1 into the possession of this land as a tenant. Sant Ram also died and was succeeded by his son Sham Sarup who inducted Kishora and Kirpal, appellants and Mangal respondent No. 2 and one, Munshi.

(3.) ABDUL Rashid, plaintiff filed a suit for redemption of the mortgaged property against Sham Saroop the successor -in -interest of the original mortgage. The suit was decreed by the Munsiff at Samba on 27 -10 -1966. The land being in possession of the tenants the plaintiff did not obtain a decree for possession thus necessitating a suit for possession against the tenants who are the appellants in this appeal. The suit was resisted by the defendants. A number of issues arose and ultimately the trial court of Munsiff Samba granted a decree to the plaintiff for possession against the appellants. The defendants brought an appeal to the District Judge, Jammu, who assigned the same for disposal to the Additional District Judge, Jammu, who dismissed the appeal. The defendants have come up in second appeal to this court The appeal came up for hearing before late Honble Bakshi J who by his order dated 6 -6 -1972 decided most of the points arising in this case. After having disposed of all the points raised before His Lordship His lordship observed that an important aspect of the case had not been kept in view by the court below. Although, it was observed, the general rule was that the rights of a tenant under the mortgagee we could extinguish along with the redemption of the mortgage. Section 15 -A of the Jammu and Kashmir Tenancy Act. 1980, provided to the contrary. According to that section tenants inducted by the mortgagee have to be treated as protected tenants if they satisfied certain conditions mentioned in the Section itself. Since the court below had not taken into account that aspect of the matter His lordship was pleased to remand the case to the trial court with a direction that it will hold an enquiry as to whether the conditions envisaged by Section 15 -A of the Jammu and Kashmir Tenancy Act, 1980, do or do not stand satisfied by the appellants. Pursuant to this order the learned Munsiff has held the enquiry and submitted a report. According to the report the appellants were the protected tenants of the land in question. Counsel for the parties were allowed opportunity to file objections to the report. Mr. J. P. Singh has not chosen to file any objection where as Mr. C. L. Kotwal has objected to the report.