Attar Singh vs J and K Special Tribunal and Others

O.P. Sharma, J.—Facts of the case in brief are these. One Garba Singh husband of Mst. kapoora Devi respondent-5 was admittedly in

possession of land measuring 10 kanals 12 marlas comprising Kh.No. 658 and 659 situate in village Targwal Tehsil Akhnoor. He died in the year

1970. Tehsildar Akhnoor Vide order dated 26.11.77 directed that name of petitioner Attar Singh be recorded, in the Girdawari with effect from

Khariff 1971 and vide order dated 14.09.81 passed on mutation No. 421 be held that the land has vested in the state u/s 4 of the Agrarian

Reforms Act. By the same order, he also held the petitioner to the prospective owner. Both these orders were challenged by the petitioner in

appeal before the commissioner, Agrarian Reforms, Jammu. The appeal was, however, dismissed on 25.04.84. The petitioner filed revision against

the order of the commissioner rejecting the appeal. This revision was allowed by the Special Tribunal on 10.07.86 who remanded the case to the

Tehsildar, Akhnoor with a direction to pass fresh after holding the enquiry. Tehsildar, Akhnoor vide order dated 12.12.1991 held that after the

death of Garba Singh in January 1970, land was cultivated by his widow respondent-5 and she was in possession in Khariff, 1971. He further held

that petitioner was wrongly entered in possession in Rabi 1972.

The petitioner challenged this order in appeal before the commissioner Agrarian Reforms who by his order dated 23.07.1993 set-aside the

order passed by the Tehsildar and directed that the appellant be recorded in cultivating possession of land in Khariff 1971 and all the rights under

Agrarian Reforms Act be conferred upon him. This order was set-aside by the Special Tribunal who restored the order dated 12.12.1991 passes

by the Tehsildar, Akhnoor.

It is this order of Special Tribunal which is challenged by the petitioner on the ground that the member, Special Tribunal exceeded the

jurisdiction while determining the question of fact when neither any question of law nor public interest was involved which is sine-qua-non for

exercising jurisdiction u/s 21 of the Agrarian Reforms Act.

Mr. Basotra appearing for the petitioner argued that the question whether widow of Garba Singh continued in possession after his death is a

question of fact which has been decided by the appellate authority. The petition of revision u/s 21(2) of the Act would lie only if any question of

law or public interest was involved. Since the factum of possession is neither a question of law nor public interest, therefore, revision petition was

not maintainable. The Tribunal according to him has assumed the jurisdiction was not vested in it. Mr. Razdan on the other hand argued that the

question of possession in this case after the death of Garba Singh who admittedly was a tenant is a question of law and not of fact. Since Garba

Singh is recorded as a protected tenant after his death in July 1970 his widow would be deemed to be in possession in terms of section 2(17) of

the Act. His further argument is that as land had been ploughed/broken in khariff 1971, therefore, the person who was personally cultivating it

immediately before khariff 1971 will be deemed to be in possession in terms of clause(3) of the second proviso to sub-section (12) of section 2 of

the Act.

In order to appreciate the controversy sudden admitted facts are required to be documented even at the cost of petition. It is admitted that the

land was in the cultivating possession of Garba Singh before his death in January 1970. It is also admitted that he was cultivating the land as tenant

of the land. It is also admitted fact that in the register of Girdawari, entry recorded is ""Tradidi"" in khariff 1971 means the land was broken for

cultivation or sowing, but not crop was sown. However, name of person who had ploughed the land is not mentioned. It is also admitted that in

Rabi, 1972, the land recorded in possession of Attar Singh and Ajab Singh. It is also admitted that Ajab Singh had made a statement that he had

never cultivated the land which according to him was in the exclusive cultivation of the petitioner. The Commissioner Agrarian Reforms has

mentioned these facts in his order dated 23.07.1993.

However, if the statement of Ajab Singh is correct, then the entry of possession of the petitioner and Ajab Singh in Rabi 1972 has to be held

fictitious because if he never cultivated the land, the same will be true of Attar Singh. His statement cannot be relied in support of the petitioner and

justify the entry in his favour. Moreover, no new tenancy could be created after the enforcement of Agrarian Reforms Act. So the affidavit of Gian

Chand recorded owner of the land that after the death of Garba Singh he inducted the petitioner as tenant has been wrongly entertained by the

commissioner, Agrarian Reforms as no reliance could be placed on such illegal transaction. Even if it is assumed that there was such a transaction

though no evidence was furnished to the Tehsildar in support of this, it is against section 13(2) of the Act.

It is in this background that the finding recorded by the appellate authority in his order dated 23.07.93 has to be appreciated. The relevant

portion of this order reads:- ,

There is no doubt that the land was in cultivating possession of Garba Singh as a tenant before and during 1970. He is reported to have died on

08.01.970 as per death certificate available on the file. However cultivating possession of Garba Singh has continued in the revenue record in Rabi

1971. In kharif 1971 the land has been recorded as ""Tardi"" which means that it has been ploughed and prepared for sowing for the next crop i.e

Rabi 1972. The cultivating possession of the appellant has been recorded as tenant paying annual rent of 1/3 rd share of produce in Rabi 1972 and

thereafter. This position has been continued till the land was requisitioned by the army in the year Rabi 1979. No doubt possession of the army has

been recorded in Rabi 1974, but in kharief 1974 cultivating possession of the appellant has been recorded which has been established that it was

appellant who had prepared and ploughed the land for cultivation in kharief 1971 and has sown the wheat crop in the next crop i.e Rabi 1972.

This possession of the appellant has been continued upto kharief 1970 till the land came under the possession of the Army in Rabi 1979.

This is a perverse view of the evidence furnished by the Revenue record. It is wrong on the part of such a senior officer to assume that the

person who was recorded in possession in Rabi 1972 is deemed to have cultivated the land in kharif 1971 because the presumption is in favour of

a person who has been cultivating the land prior to this date. Had the person in whose favour entry was recorded in Rabi 1972 cultivated the land

in kharif 1971, nothing prevented the Patwari to record him in possession. This therefore, is erroneous view. It was thus a question of public

interest and the Special Tribunal would be justified in allowing the revision if it is found that the finding was perverse and contrary to the provisions

of Agrarian Reforms Act.

How this finding is against the mandate of law now be examined. Sub-section (17) of section 2 of the Act reads:-

(17) 'tiller' means tenant cultivating land personally and shall mean and include a person who was tiller in kharif, 1971 or his legal heirs or his

transferee in the case of any valid transfer of land made between 1st Sept.1971 and 1st.May 1973, subject to the competent Revenue Officer

being satisfied about the existence of a bona-flde transfer to this effect. So widow being the legal heirs of Garba Singh became automatically tiller

of the land. Although Garba Singh was recorded as protected tenant, but even if he was not so, he admittedly was a tenant paying share of

produce as rent to the landlor. He was thus a tiller of the land. This land is recorded as warhal Awal. Such kind of land is prepared' for sowing rabi

crop. If it was not brought under kharif crop, same could be either for want of sufficient rain, necessary for kharif crop or for other reason. Clause

(iii) of the second proviso to sub-section (12) of section 2 reads as under:-

(iii) where any land has been left fallow during kharif, 1971 in normal course of animal husbandry, person cultivation of such land in kharif, 1971

shall be deemed to be of the person who personally cultivated it for three consecutive harvests prior to Kharif, 1971.

Such type of land can be left fallow during kharif 1971 in normal course of animal husbandry in the absence of rain. So merely because it was

left fallow, it could not be construed that it was not in possession of legal heirs of tenant Garba Singh. It is in the light of these admitted facts and

legal position that the order of the Special Tribunal has to be appreciated. Commissioner Agrarian Reforms has ignored the finding returned by the

Tehsildar in his order dated 12.12.91 that the land was in possession of Mst. Kapooro Devi after the death of her husband and she had got it

ploughed in kharif 1971 as per evidence furnished before him. There is not even a whisper in the order of the Tribunal as to why he did not accept

the fact returned by the Tehsildar which is based on a evidence of the witnesses produced before him by the parties. He has specifically returned a

finding that the entry in favour of the petitioner is fictitious as he never cultivated the land and this is supported by the fact that no tenancy could be

created after the enforcement of this Act. The finding of this appellate authority is based on surmises and conjectures which has been rightly set-

aside by the Tribunal. The revision petition was thus maintainable u/s 21 because it involved substantial question of law and public interest

regarding the question of possession after the death of Gian Chand recorded owner to the effect that he had inducted the petitioner as the tenant of

the land in 1972 could be accepted. Sub-section(2) of section 13 of the Act reads as under:

Restriction on utilization of land.

(1).........

(2) Except as otherwise provided in this Act, no tenancy created or continued after the first day of May, 1973 in respect of any land shall be

valid.

So no new tenancy could be created after the enforcement of this Act. If that be so as it really is, the affidavit of Gian Singh relied by the

commissioner Agrarian Reforms in support of his finding is excluded from consideration being inadmissible in evidence. This was an erroneous

view of the law. Looked from any angle, no fault could be found with the order of the Special Tribunal. There is thus no merit in the petition which

is dismissed with costs.