:JUDGMENT:

Per Massodi, J.

1. Subject matter of the dispute is a plot of land measuring 40 kanals and 19 marlas comprising Survey Nos. 16 & 17 situated at Village Top Sherkhania, Jammu (hereinafter called “land in dispute”). Chronologically, the litigation over the land in dispute may be divided into two phases. In the first phase, the reversionaries of original owner of the land, Shri Jodh Singh, fought a long drawn legal battle with Shri Ghasitu Ram - the tenant inducted by alienee of limited owner, namely, Smt. Dadwal widow of Jodh Singh. The litigation started in 1936 A.D and came to an end on 05.11.1986 The controversy died down once the reversionaries lost the battle, not for the reason that this Court did not find merit in their claim, but because of enactment of J&K Agrarian Reforms Act, 1976. The appellant herein - grandson of the tenant inducted by alienee of the limited owner, fought a lone battle against the reversionaries. His brothers did not join him in this battle. They, however, surfaced with their claim to the land in dispute, as legal heirs of Shri Ghasitu Ram - the tenant inducted by alienee of the limited owner after the land was mutated in appellant's favour. The second phase of litigation commenced on 21.09.1989 and continues to engage the parties.

2. Shri Raja Ram Chand - Raja of Chenani purchased land in dispute from Smt. Dadwal widow of Late Jodh Singh vide Sale Deed dated 26th Poh, 1992 Svt. (12 January, 1936) in consideration of an amount of Rs. 1600/-. He handedover its possession to one Shri Ghasitu Ram (predecessor of the parties in present appeal) for its cultivation and inducted him as a “tenant”. Shri Ghasitu Ram, thereafter, remained in cultivating possession of the land in dispute.

3. Shri Mukhtiar Singh, as next reversionar of late Jodh Singh, threw challenge to the sale deed executed by Smt. Dadwal widow of Jodh Singh, in a Civil Suit (Suit for Declaration), filed in 1936 on the ground that Smt. Dadwal having a limited interest in the subject matter of sale deed, was not competent to execute the sale deed and, in any case, she would not pass a better title than she had in the land to the vendee i.e Shri Raja Ram Chand. The Suit was decreed. The matter went up to the High Court and judgment and decree was upheld vide judgment dated 25 Poh, Svt. 1999 (1942 A.D). The execution petition filed by the reversionars did not meet success on the ground that the decree was not executable during life time of Smt. Dadwal as the transferees would continue to have a limited interest during her life.

4. Shree Yuvaraj, in the meantime, in exercise of powers under Section 5 Jammu and Kashmir Constitution Act, 1996, read with the proclamation dated 7 Har. 2006, enacted Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 (1950 A.D). The Act put a ceiling of 182 kanals on the estate held by an estate holder/landlord. The land held over and above the ceiling area i.e 182 kanals, by such estate holder was to go to the tenant in cultivating possession of the land. However, the estate holder/landlord was given a choice to select 182 kanals out of the land held by him and the land so identified was allowed to be retained by him.

5. Shri Raja Ram owned an area of land much more than 182 kanals retainable by him under the Act. He, however, did not include the land in dispute in his retainable unit. Resultantly, the land was transferred in the name of Shri Ghasitu Ram - the tenant in cultivating possession, in the revenue record and mutation under Section 5 of the Act attested in his favour on 28 Jeth Svt. 2008 (1951 A.D).

6. The reversionaries questioned mutation order dated 28 Jeth Svt. 2008 (1951 A.D) before the higher Revenue Authorities, though without any success. Smt. Dadwal widow of Jodh Singh - breathed her last on 20 Phagun Svt. 2020 (1963 A.D). The reversionaries filed application for execution of declaratory decree, earlier passed in their favour and upheld by the High Court on 25 Poh, Svt. 1999 (1942 A.D). However, its execution was vide order dated 29.07.1964 declined on the ground that it was declaratory in nature and, therefore, not executable. They, thereafter, brought a Suit for possession in the Court of City Judge, Jammu against Shri Ghasitu Ram, pleading therein that as transferee from a limited owner, would not be “owner” within the meaning of Big Landed Estates Abolition Act, Svt. 2007 (1950 A.D), the tenant inducted by transferee from a limited owner would not be entitled to benefit of transfer of land in his favour, under the Act. The suit was decreed on 30.01.1965 Shri Ghasitu Ram filed an appeal against the judgment and decree before District Judge, Jammu. The appeal was dismissed and so was the Civil Second Appeal by a Division Bench of the High Court on 19.04.1973

7. During pendency of the appeal, Shri Ghasitu Ram executed a will on 09.02.1965 in favour of his grandson Shri Baldev Raj - present appellant. The will was duly registered. Shri Ghasitu Ram passed away on 08.08.1972 Appellant after death of his grandfather (appellant before the High Court) filed an application for bringing him on record as legal representative of Shri Ghasitu Ram. He based his claim on the will executed by appellant in his favour on 09.02.1965 His application was accepted, though the Civil Second Appeal as already stated was dismissed on 19.04.1973

8. The reversionaries on dismissal of the Civil Second Appeal filed an execution petition before City Judge, Jammu. The execution petition was resisted by appellant on the ground that in wake of enactment of J&K Agrarian Reforms Act, 1972 (Repealed and Replaced by J&K Agrarian Reforms Act, 1976), the decree was rendered inexecutable as the land in dispute was in cultivating possession of appellant in Kharief 1971 and, therefore, rights if any of the reversionaries in the land in dispute stood extinguished. The Executing Court did not sustain the objection taken. The appellant filed an appeal against the order of the Executing Court. The appeal was allowed on 17.05.1980, and the matter as laid down by the High Court in Civil Revision No. 91 of 1978 (reported as KLJ 1980 Page 151) referred to Collector, Agrarian Reforms to determine the question of possession over land in dispute, in Kharief 1971. Collector Agrarian Reforms on 05.05.1981, holding the reversionaries to have been out of possession at the relevant time, held Ss 8 & 4 J&K Agrarian Reforms Act, 1976 to be attracted and mutation to be attested accordingly. The reversionaries filed an appeal against the finding returned by Collector Agrarian Reforms before Commissioner Agrarian Reforms. The appeal was dismissed on 22.12.1983 Challenge to order dated 22.12.1983 before J&K Special Tribunal, Jammu by the reversionaries did not succeed and the revision petition was dismissed on 05.11.1986 The reversionaries did not pursue the matter any further. This brought to an end the phase of the litigation between reversionaries and Shri Ghasitu Ram and thereafter the appellant.

09. Tehsildar, Agrarian Reforms after long drawn litigation between Shri Ghasitu Ram, his grandson (legatee) and reversionaries finally made mutation order no. 4192 under Section 4 of J&K Agrarian Reforms Act, 1976 on 06.05.1987 in favour of appellant as prospective owner of the land in dispute. This was followed by mutation order No. 4210 under Section 8 of the Act in favour of appellant as owner of the land in dispute on deposit of levy under rules. The mutation orders were made in presence of Devi Dass father of the appellant and Shri Hem Raj one of his brothers. Appellant deposited the levy and assumed the status of owner of the land in dispute. This gave rise to second phase litigation - now between appellant and his others-brothers and paternal cousins. The litigation is still pending in shape of Letters Patent Appeal on hand.

10. S/Shri Dev Raj and Sham Lal sons of Devi Dass - brothers of Baldev Raj - appellant herein, preferred appeal against the order of Tehsildar, Agrarian Reforms, Jammu dated 06.05.1987 whereby mutation under Section 4 was attested in favour of appellant as prospective owner of the land in dispute. The case up was that the appellants and other legal heirs of Shri Ghasitu Ram were entitled to share in the land in dispute and the mutation order made in favour of only one legal heir i.e Baldev Raj - present appellant, was against law and facts and, therefore, liable to be set aside. They insisted that Shri Ghasitu Ram had no right to will away the land in dispute and, therefore, the will claimed by the appellant to have been executed on 09.02.1965 was devoid of any legal consequence. Commissioner, Agrarian Reforms, Jammu dismissed the appeal on the ground of limitation, without looking into other aspects of the case set up by the appellants in the memo of appeal.

11. The order of Commissioner, Agrarian Reforms, Jammu dated 16.02.2005 was assailed by Dev Raj - respondent no. 5, in a Revision Petition before J&K Special Tribunal. The Tribunal took a view contrary to one taken by the Commissioner, Agrarian Reforms. It held that tenancy rights in the land in dispute ought to have been transferred on death of Shri Ghasitu Ram in the year 1972, in light of J&K Tenancy Act, 1923 A.D and J&K Land Revenue Act, 1939 to his legal heirs; that the matter instead was deferred till 1987 when Tehsildar, Agrarian Reforms acting on the “Will” claimed by the appellant to have been executed by Shri Ghasitu Ram in his favour on 09.02.1965, attested mutation in his favour without making enquiry contemplated under the J&K Land Agrarian Reforms Act, 1972 and that too at the back of other legal heirs. The Tribunal observed that the issue whether cultivating rights can be willed away or whether such rights are to pass on to the legal heirs, irrespective of the will, was a debatable issue. It proceeded to hold that as the order of Tehsildar, Agrarian Reforms dated 06.05.1987/04.06.1987 was repugnant to the rules. The Tribunal, accordingly, held the order of Tehsildar, Agrarian Reforms dated 06.05.1987/04.06.1987 void abinitio and delay not to stand in the way of Shri Dev Raj - respondent no. 5 herein, to question the aforesaid mutation orders. The revision petition was, accordingly, accepted on 30.12.2009 and Tehsildar, Agrarian Reforms asked to conduct a fresh enquiry into the matter and pass appropriate order after giving the parties opportunity of being heard and according consideration to the evidence available on record.

12. The order of Tribunal dated 30.12.2009 was questioned by the appellant through a writ petition being OWP no. 72/2010 primarily on the ground that “cultivating possession” of the appellant having been confirmed by the Tribunal in its order dated 05.11.1986, upholding the order of Commissioner, Agrarian Reforms dated 22.12.1983 and Collector, Agrarian Reforms dated 05.05.1981, it was not open to the Tribunal to re-open the question of appellant's possession over the land in dispute in 1971 Kharief. It was pleaded that the High Court impleaded the appellant as Legal Representative of Ghasitu Ram in Civil Second Appeal filed by the reversionaries, and dismissed on 19.04.1973; that the reversionaries brought execution petition only against the appellant and none amongst the respondents contested the execution petition; that the mutation order nos. 4192 under Section 4 dated 06.05.1987 and 4210 under Section 8 dated 04.06.1987 were attested by Tehsildar, Agrarian Reforms in compliance of Tribunal order dated 05.11.1986; that the question of possession, therefore, had assumed finality and Tesildar Agrarian Reforms cannot be said to have made mutation orders on his own without examining the record.

13. It was next insisted that as the Tribunal had held the appeals not to be barred by limitation, right course for the Tribunal was to remand the matter to the Commissioner, Agrarian Reforms for disposal on merits and not to assume the role of the Appellate Forum and itself decide the matter on merits. The Tribunal was said to have failed to appreciate that the respondents had filed revision petition against the orders of Tehsildar, Agrarian Reforms dated 06.05.1987 and 04.06.1987 and not against the order of Commissioner, Agrarian Reforms dated 16.02.2005 and that in absence of challenge to order of the Commissioner Agrarian Reforms dated 16.02.2005 whereby Tehsildar, Agrarian Reforms' orders dated 06.05.1987 and 04.06.1987 were left undisturbed, the revision petition was not maintainable. It was further pleaded that as mutation orders dated 06.05.1987 and 04.06.1987 were admittedly recorded in presence of Devi Dass - father of the parties and Shri Hem Raj - brother of appellant (respondent no. 6 in present LPA), the Tribunal was not right in its conclusion that the mutation orders dated 06.05.1987 and 04.06.1987 were made at the back of the private respondents. It was argued that presence of Devi Dass - father of the private respondents would amount to their presence, inasmuch as their interests were represented by their father.

14. The Writ Court did not find any merit in the writ petition and dismissed it on 17.07.2010 Learned Single Judge held Shri Ghasitu Ram to have been occupancy tenant of the land in question and competent to transfer tenancy rights in the land in dispute in terms of Section 60 J&K Tenancy Act, by sale, mortgage or gift but not through “Will” as is said to have been done by Shri Ghasitu Ram in present case. This apart, in the opinion of the Writ Court, Section 20 Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 (1950 A.D), would stand in way of Shri Ghasitu Ram in transferring his interest in the disputed land, inasmuch as, the land was transferred to him under the Act on 28 Jeth Svt. 2008 (1951 A.D).

15. It was held that in terms of Section 67 of J&K Tenancy Act, 1923 on death of a tenant having right of occupancy in any land, such right is to devolve on male lineal descendants, if any, in the male line of descent and the rights in the disputed land, therefore, devolved on all the male lineal descendants of Shri Ghasitu Ram on his death. Learned Single Judge did not find appellant's case to fall even under Section 68 of the Tenancy Act, inasmuch as, the appellant though taken to be an appointed heir, was not to succeed to the tenancy rights as requisite consent was not obtained from the landlord.

16. Learned Single Judge while arriving at aforestated conclusions placed reliance on Division Bench Judgment reported as S. Kirpal Singh v. S. Suchet Singh2000 SLJ 225 as also a Lahore High Court Judgment reported as Sawan Singh v. Kartar SinghAIR 1933 Lahore 400. It held that merely because appellant was impleaded as legal representative of Ghasitu Ram, in Civil Second Appeal would not confer a right on the appellant to be declared owner of the property of deceased, forming subject matter of the appeal. Reliance was also placed on Kalu Ram v. Charan SinghAIR 1994 Rajasthan 31 in this regard.

17. The Writ Court judgment dated 17.07.2010, is questioned in Letter Patent Appeal on hand, on the ground urged in the memo of appeal.

18. We have gone through the memo of appeal, the writ Court judgment as well as writ record. We have heard learned counsel for the parties at length.

19. The Writ Court has based its conclusions on the assumption that Shri Ghasitu Ram was an occupancy tenant on the date he executed Will in favour of present appellant and that as the tenancy rights in terms of Section 60 J&K Tenancy Act, 1923 A.D are not transferable through a Will, the Will pressed into service by the appellant did not transfer any interest in the disputed land to the appellant. In the opinion of the Writ Court Section 67 J&K Tenancy Act, would govern devolution of tenancy rights on death of an occupancy tenant.

20. Shri Ghasitu Ram, as the record available on the file would reveal, was inducted as tenant by alienee of a limited owner. He, therefore, remained in authorized possession of the land in dispute during life time of the limited owner i.e till 20 Phagun Svt. 2020 (1963 A.D). His possession, thereafter, was unauthorized. The mutation order made in his favour under Section 5 Jammu and Kashmir Big Landed Estates Abolition Act, Svt. 2007 (1950 A.D) was stripped of its value by the judgment dated 19.04.1973, dismissing his Civil Second Appeal, whereby decree and judgment of City Judge, Jammu as also that of 1st Appellate Court were called in question.

21. Division Bench of the High Court while dismissing the Civil Second Appeal held Shri Ghasitu Ram not entitled to status of protected tenant. Shri Ghasitu Ram's status as tenant of the land in dispute was coterminus with the interest of alienee of limited owner i.e Raja Ram Chand. Shri Raja Ram Chand interests and rights in the land in dispute came to an end with the death of Dadwal on 20 Phagun Svt. 2020 (1963 A.D). The disputed land on death of Dadwal reverted to the reversionaries of original owner Shri Jodh Singh i.e Mukhtiyar Singh and ors. It would be appropriate to extract hereunder the observations in this regard made by the Division Bench of the High Court while dismissing Civil Second Appeal on 19.04.1973:-

“It follows that before a person acquires the right of a protected tenant, he must be a tenant. Since Raja Ram Chand himself was not a landlord he could not have leased out the land beyond the period for which he was in enjoyment of the property. It is well settled that a limited owner cannot confer an absolute right on his tenant when he himself does not possess that right.”

22. Shri Ghasitu Ram, therefore, did not have rights as an “occupancy tenant” in the land in dispute on 09.02.1965 - the date Will was executed in favour of appellant, the position continued to be the same on his death on 08.08.1972 - the date Will became operational. On both the dates his status was that of a person in unauthorized possession of the land in dispute. The Agrarian Reforms Act of 1972, enforced with effect from 01.05.1973 vide SRO 112 of 14.03.1973, unlike the Agrarian Reforms Act of 1976, did not declare tenant inducted by alienee of a limited owner and continuing in possession after interest of alienee came to an end, to be in “personal cultivation” of the land in his possession for the purposes of the Act. Shri Ghasitu Ram in possession of the land in dispute on 01.05.1973 i.e the date the Agrarian Reforms Act of 1972 came into force, was not a “protected tenant” as held by the High Court vide judgment dated 19.04.1973 nor to be treated as a person, in “personal cultivation” of the land in dispute within meaning of Section 2(7) of the Act. The Agrarian Reforms Act of 1976, however, included a person inducted as a tenant by alienee of a limited owner and in continuous cultivating possession of such land for not less than twenty years prior to Kharief 1971, within the definition of person in “personal cultivation”. Section 2(12)(x) of the Act needs to be noticed. It reads:-

“(x) Where a person, after having been inducted as tenant by alienee of a limited owner, has been in continuous cultivating possession of such land for not less than twenty years prior to Kharief, 1971, such person shall be deemed to be in personal cultivation of such land, any judgment, decree or order of any court or authority notwithstanding.”

23. Even if it is assumed that Shri Ghasitu not alive on 13.07.1978 i.e the date Agrarian Reforms Act, 1976 came into force vide SRO 295 of 01.06.1978, is to be taken to have been in “cultivating possession” of land in dispute in Kharief 1971 within meaning of Section 2(12)(x) of the Agrarian Reforms Act, 1976, inasmuch as, he on the said date was in possession of the land in dispute for more than twenty years having been inducted as a tenant by alienee of a limited owner in the year 1936, the appellant would not get any right or interest in the disputed land because of the Will and could not claim any preferential right in the disputed land superior to or to the exclusion of other legal heirs of Shri Ghasitu Ram exclusively on the basis of Will. His claim to transfer of land in dispute in his favour under Section 4 Agrarian Reforms Act, 1976 as “prospective owner” and thereafter under Section 8 Agrarian Reforms Act, as the “owner” would rest on his claim of exclusive cultivating possession of the land in dispute in Kharief 1971.

24. Be that as it may, the Tehsildar, Agrarian Reforms while passing mutation orders dated 06.05.1987 and 04.06.1987 was influenced by the Will dated 09.02.1965 executed by Shri Ghasitu Ram in favour of the appellant and the outcome of litigation between reversionaries of Shri Jodh Singh - the original owner and the appellant. The Tehsildar, Agrarian Reforms failed to appreciate that the core of controversy in litigation between the reversionaries and the appellant was whether the judgment and decree for possession earned by the reversionaries in Civil Suit decided on 30.01.1965 and upheld in First Appeal by District Judge, Jammu and in Civil Second Appeal by the High Court on 19.04.1973 continued to be executable in wake of enactment of J&K Agrarian Reforms Act, 1976. Though, the Executing Court held the decree to be executable notwithstanding enactment of J&K Agrarian Reforms Act, 1976, the finding was overset by the Appellate Court (Additional District Judge, Jammu) and matter sent to the Collector, Agrarian Reforms.

25. The Collector, Agrarian Reforms held the decree holders (reversionaries) out of possession in Kharief 1971 and the decree for possession in their favour not to be executable. The finding was confirmed by the Appellate Court (Commissioner, Agrarian Reforms) on 22.12.1983 and thereafter by the Revisional Court (J&K Special Tribunal) on 05.11.1986 The litigation between the reversionaries and the appellant came to an end with the judgment dated 05.11.1986 and did not continue any further. The question of possession over the land in dispute, therefore, was not central to the dispute so as to absolve the Tehsildar, Agrarian Reforms of his duty to make enquiry within the meaning of J&K Agrarian Reforms Act, 1976 and the rules made thereunder as regards actual possession in Kharief 1971 over the land in dispute. Once the dispute between the appellant and the reversionaries came to an end, and the decree for possession in favour of the reversionaries was held not executable, the next step to be taken was to find out who was in cultivating possession of the land in dispute on the relevant date in terms of J&K Agrarian Reforms Act, 1976.

26. Chapter IV J&K Agrarian Reforms Rules, 1977 prescribes procedure for compilation of Form 4 and attestation of mutation. In terms of Rule 10 a Revenue Officer is required to get statement in Form 4 compiled by each Patwari within his jurisdiction, in respect of each person, holding land, whether as owner or otherwise or partly in one capacity and party in other capacity or capacities in any village or villages in the State. The statement is to indicate the extent and identify the whole of such land held by such person in the entire State and one such statement is to be got prepared for each village. The Revenue Officer while getting requisite information compiled would be competent to ascertain from any person or any other Revenue Officer particulars of land held by such person within the jurisdiction of such other Revenue Officer. The statements in terms of Rule 10(5) are to be got checked 100% by the Girdawar, 50% by Naib Tehsildar, 25% by Tehsildar and 25% by Collector. The statement is, thereafter, to be certified and signed by each of the officers. It is only after the exercise is completed that Rule 12 would come into play and mutation written up and attested giving effect to the extinguishment of rights in the land not in personal cultivation in Kharief 1971 and vesting of such rights in the State. The tiller, personally cultivating in Kharief 1971, the land in respect whereof rights stand vested in the State, is to be recorded as prospective owner. However, where such tiller has died prior to first day of May, 1973 and mutation of succession relating to him has already been written up and attested or not written up and attested, Tehsildar, Agrarian Reforms has to follow either of the courses mapped out in Rule 12(1)(b)(i) to (iiv). Where the tiller who was personally cultivating land in Kharief 1971 had died prior to 1 May, 1973 but had transferred his rights under valid transfer and the Tehsildar, Agrarian Reforms is satisfied that the transfer is bona fide, he has to adhere to the procedure laid down in Rule 12(1)(c)(i) or (ii). To sum up, J&K Agrarian Reforms Rules prescribes an elaborate procedure to be followed by Tehsildar, Agrarian Reforms while attesting mutation under Ss 4 and 8 J&K Agrarian Reforms, Act.

27. Tehsildar, Agrarian Reforms, as the record would reveal and as rightly pointed out by the Tribunal in its order dated 05.11.1986, has not followed the procedure while attesting mutations in question, but allowed himself to be influenced by the Will claimed by the appellant to have been executed in his favour, his impleadment as legal representatives of Shri Ghasitu Ram in Civil Second Appeal filed by him against the reversionaries, the observations made by the authorities at different levels (Collector, Agrarian Reforms, Commissioner, Agrarian Reforms, & J&K Special Tribunal) while dealing with the litigation between the reversionaries and the appellant and that too at the back of some of the legal heirs of Shri Ghasitu Ram. While all the aforesaid factors, could have been taken into account by the Tehsildar, Agrarian Reforms while deciding the question of mutations under Ss 4 and 8 J&K Agrarian Reforms Act, 1976, yet these factors would not warrant writing up and attesting mutations as a matter of course and without any enquiry contemplated under J&K Agrarian Reforms Rules, 1977 in presence of the parties, giving them reasonable and adequate opportunity to put forth their stand.

28. For the reasons discussed, we don't find a case made out by the appellant as would persuade us to take a view different from one taken by the learned Single Judge. The appeal is devoid of any merit and deserves to be dismissed.

29. Dismissed.