HAJI SHABAN DAR Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) RESPONDENTS 2 to 4, who are the owners of a piece of land, filed an application under sections 46. 47 (i) (b) and 48 (2) of the Jammu and Kashmir Tenancy Act (hereinafter referred to as the Tenancy Act), against the petitioners seeking ejectment of the latter, on the ground that they were tenants -at -will, who could not have even otherwise acquired the status of protected tenants, as the land was situated within the limits of Notified Area, Srinagar. This application was resisted by the petitioners, inter alia on the grounds that they had acquired protected tenancy rights in respect of the land long before the same was brought within the limits of Notified Area, Srinagar, and that they had effected improvements by planting fruit bearing trees on it and also reduced it into vegetable growing which otherwise was a barren piece of land. The Assistant Commissioner, before whom the application was filed, dismissed the same, holding that the petitioners were protected tenants qua the land, and were, as such, not liable to ejectment. An appeal was later on taken up by the respondents to the Collector against the aforesaid order of the Assistant Commissioner, but here too they did not succeed, and the Collector dismissed their appeal, holding that the petitioners were protected tenants and not mere tenants -at -will qua the land in dispute. Not being satisfied with the orders of the two officers below, the respondents went in second appeal before the Divisional Commissioner, who accepted the same, holding that the land had been in fact converted into an orchard long before the coming into force of the Jammu and Kashmir Tenancy (Amendment) Act, 1955, to which the provisions of section 15 -A of the Tenancy Act were not attracted. He, therefore, overset the orders of the two officers below, held the petitioners to be mere tenants -at -will, and remanded the case back to the Assistant Commissioner for disposing of the respondents application for ejectment in accordance with law. This time, the petitioners felt aggrieved, and challenged the order of the Divisional Commissioner in a revision petition before the Financial Commissioner, respondent No. 1 herein, but without any success. Respondent No. 1 upheld the findings of fact arrived at by the Divisional Commissioner and dismissed the revision petition holding that the land was an orchard before the year 1955 qua which protected tenancy rights could not have been acquired under section 15 -A of the Tenancy Act. The petitioners have felt aggrieved of the orders passed by the Divisional Commissioner and the Financial Commissioner and have prayed that the same may be quashed because:

(2.) DEVELOPING his first two points, Mr. Raina has argued that the Divisional Commissioner had exceeded his jurisdiction in oversetting the concurrent findings of fact arrived at by the two officers below that the petitioners were protected tenants qua the land in dispute. In any event, argued the learned counsel, the respondents could not get any relief on the ground that the land was an orchard to which the provisions of section 15 -A of the Tenancy Act did not apply, as the respondents had never pleaded that the land was an orchard. The petitioners, contended the learned counsel have been prejudiced by the procedure adopted by the Divisional Commissioner in giving relief to the respondents on the basis of an averment made by the petitioners in the objections to the application for ejectment that they had planted some fruit bearing trees on the land. As a matter of fact, the land was not an orchard, maintained the learned counsel, and the petitioners had been clearly taken by surprise. He has invited my attention to proviso 1 to section 11 of the Land Revenue Act in support of his aforesaid argument. As for the revisional powers of the Financial Commissioner under section 15 of the Land Revenue Act, Mr. Raina has argued, that these powers are in part material with the powers of the High Court under section 15 C. P. C., so that the Financial Commissionerâ„¢s is powers are in pari material with the powers of the High Court of concurrent findings of fact arrived at by courts or officers below.

(3.) ON terms of proviso 1 to section 11 of the Land Revenue Act, no second appeal would lie, except on the grounds mentioned in clauses (a), (b), or (c) of section 100 C. P. C. where an original order has been confirmed on first appeal. Clauses (a), (b) and (c) of the Code of Civil Procedure are reproduced as below: -