MOHD HUSSAIN Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THE petitioners are owners of land comprising in Khasra Nos: 555,556 and 556/1 situate in village Fatepur Tehsil Rajouri. Before the Revenue authorities it was an admitted case of respondent No: 4 and the petitioners that -respondent No: 4 was a tenant under Kala Ram and other, the occupancy tenants of the petitioners. The land was eroded by floods somewhere in 1955 -56 and could not be reclaimed till 1971 -72. Respondent No: 4 filed an application before the Deputy Commissioner, Rajouri, on 4 -7 -1972 (presumably under Section 55 of the Tenancy Act, 1980) alleging therein that the landlords -petitioners were preventing him to cultivate the land which had been reclaimed by the petitioners herein. The Deputy Commissioner vide his order dated 23 -6 -1975 repelled the arguments addressed on behalf of the landlords to the effect that respondent No: 4 herein had relinquished his possession by his in -action to cultivate the land. He observed that since the land was not cultivable, the tenant of the occupancy tenants could not cultivate it till it had been reclaimed and in those circumstances it could not be said that he had relinquished his possession over the land of which he was recorded as a tenant under the occupancy tenants in the revenue records. In an appeal before the Divisional Commissioner, this finding was upheld and the learned Divisional Commissioner, vide his order dated 9 -3 -1976, held that respondent No. 4 was a protected tenant and that he had not relinquished his tenancy. It was also held by him that as soon as the land had become fit for cultivation and the owner landlord had reclaimed it, respondent No. 4 had started agitating his right to cultivate that land and the resistance on behalf of the landlord entitled the tenant to seek reinstatement under Section 56 of the Tenancy Act. A second appeal was preferred before the learned Financial Commissioner who vide order dated 4 -1 -1977, affirmed the findings of the Collector (Deputy Commissioner) dated 23 -6 -1975 and of the Divisional Commissioner dated 9 -3 -1976 and held that the tenant had not relinquished his tenancy and that the landlord had entered into the, land in 1972, prior to which the possession of the tenant of the occupancy tenants had been recorded in the Girdawaris throughout and as such the tenant was entitled to reclaim possession which the landlord had denied to him. Aggrieved by the findings recorded by the Revenue authorities, the petitioners -landlords have come up to this Court by means of this writ petition.

(2.) MR . Salaria, learned counsel for the petitioners, has in the first place urged that since the tenant of the occupancy tenants was not in the physical possession of the land in 1972 when the land lord entered into possession he had no right to maintain an application under Section 56 of the Tenancy Act. In reply Mr. T. S. Thakur, learned counsel for respondent No. 4 has submitted that actual cultivation of the land by the tenant is not a necessary attribute of possession and since the land was not fit for cultivation prior to 1972, it would be futile to contend that the tenant had relinquished his tenancy over that land and that since in 1972 when the landlord entered into possession, they prevented the tenant to cultivate it, the tenant had the right to seek relief under section 56 of the Tenancy Act.

(3.) APART from the fact that the Collector, the Divisional Commissioner and, the Financial Commissioner have all returned concurrent findings of fact to the effect that respondent No. 4 had not relinquished his possession over the land which was under his sub -tenancy, by his in -action to cultivate the land, that the said land had been shown in the revenue records (Girdawaries) to be under possession of respondent No. 4 till 1972, when for the first time the possession of the landlords came to be entered in the revenue record, and sitting in exercise of the extraordinary jurisdiction of this Court, it is neither proper not desirable to disturb such a finding of fact, I find that the argument of Mr. Salaria even otherwise is not well -founded and the findings recorded by the Revenue Officers on this aspect of the case are correct.