BIHARI LAL Vs. TEHSILDAR AGRARIAN REFORMS

JUDGEMENT

(1.) CHANDU Ram, the father of the petitioners was a tenant in respect of land covered under khasra Nos 123/1 Kanal - 1 Marla; 127/4 kanals -14 marlas; and 271/135 -2 kanals 10 marlas situate at ponni Chak Wand Wazira, Jammu. After his death the mutation of succession was attested by the Tehsildar Agrarian Reforms, Jammu on January 4,1984, in favour of petitioner No. 1 and respondent No. 4 in the ratio of 1/2 each. The petitioner preferred an appeal against the order of Tehsildar Agrarian Reforms, Jammu before the Additional Commissioner Agrarian Reforms. Jammu, who vide his order dated May 28, 1986 dismissed the same. A further Revision petition was filed before respondent No.3 which was also dismissed, whereafter the present writ petition has been filed for quashing the same on the ground that the mutation of inheritance of Chandu Ram in favour of petitioner and respondent No. 4 could not have been attested in presence of the petitioner Nos. 1 and 2 who are the son and the daughter of Chandu Ram deceased and entitled to the share of 1/2 each. The provisions of section 28 of the Agrarian Reforms Act are allegedly to have been wrongly interpreted. It is, submitted that Chandu had not acquired the statues of an owner, his succession would be governed under section (sic) of the Act where by the estate of Chandu deceased was to be governed by the provisions of Hindu succession Act. It is submitted that the respondent No.4 Was not legally wedded wife of the deceased. Under section 67 of the Tenancy Act only male members of the deceasedâ„¢s family were entitled to inherit the right possessed by the deceased at the time of his death.

(2.) IN the objections filed on behalf of respondent No.4, it is submitted that the present petition did not involve any question of law and was based mainly on questions of facts deserving dismissal. The factum of Chandu Ram being tenant of the property and his death have not been denied. The attestation of Mutation, filing of Revision petition and appeal have also been admitted. Respondent No 4 has claimed to be legally wedded wife of the deceased. Deceased is admitted to be in possession of the land in Kharief 1971 on the basis of which it -is submitted that the right, title and interest in respect of the land under his personal cultivation stood transferred in favour of the state declaring Chandu Ram as prospective owner under section 4 of the Agrarian Reforms Act. Alter the death of Chandu, respondent No.4 claims to be in cultivating possession of the land a long with the petitioner. It is submitted that Mutation was legally and rightly attested by the Tehsildar in favour of the petitioner No.1 and respondent No.4, petitioner No. 2 daughter of the deceased is stated to have been married before 1971 and thus excluded from the family of the deceased as defined under sub -section 6 of section 2 of the Agrarian Reforms Act. It is alleged that mutation was attested in favour of the petitioner and respondent No.4 on the basis of the statement made by respondent No.1 to the effect that he alongwith respondent No.4 were the only legal heirs of the deceased Chandu Ram. It is submitted that the provisions of Section 67 of the Tenancy Act were not applicable to the case.

(3.) I have heard the learned counsel for the parties and perused the record -