Parkashan and others vs Abdul Rashid and others

(1) The facts of this case have been comprehensively narrated by late Bekshi J in his order dated 661972. Only such other facts as are necessary

for appreciating the points which fall for decision now are proposed to be stated here and the same are as follows :

(2) One, Nathu Ram, owned land measuring 29 kanals and 4 marlas in khasra Nos 121, 125, i25 min and 155 in khewat No. 8 in village Nehari

Tehsil Sambe. He Mortgaged this land on 1051975 Bikrami to one, Bhagoo, Abdul, Rashid, respondent in this appeal is the successorininterest of

Nathu. Rhagoo died and was succeeded by his son, Sant Ram who inducted Inder the father of respondent No. 1 into the possession of this land

as a tenant. Sant Ram also died and was succeeded by his son Sham Sarup who inducted Kishora and Kirpal, appellants and Mangal respondent

No. 2 and one, Munshi.

(3) Abdul Rashid, plaintiff filed a suit for redemption of the mortgaged property against Sham Saroop the successorininterest of the original

mortgage. The suit was decreed by the Munsiff at Samba on 27101966. The land being in possession of the tenants the plaintiff did not obtain a

decree for possession thus necessitating a suit for possession against the tenants who are the appellants in this appeal. The suit was resisted by the

defendants. A number of issues arose and ultimately the trial court of Munsiff Samba granted a decree to the plaintiff for possession against the

appellants The defendants brought an appeal to the District fudge, Jammu, who assigned the same for disposal to the Additional District Judge,

Jammu, who dismissed the appeal. The defendants have come up in second appeal to this court The appeal came up for hearing before late

Hon'ble Bakshi J who by his order dated 661972 decided most of the points arising in this case, After . having disposed of all the points raised

before His Lordship His lordship observed that an important aspect of the case had not been kept in view by the court below. Although, it was

observed, the general rule was that the right of a tenant under the mortgagee would extinguish along with she redemption if the mortgage. Section

15A of the Jammu and Kashmir Tenancy Act, 1980, provided to the contrary. According to that section tenants inducted by the mortgagee have

to be treated as protected tenants if they satisfied certain conditions mentioned in the Section itself. Since the court below had not taken into

account that aspect of the matter His lordship was pleased to remand the case to the trial court with a direction that it will hold an enquiry as to

whether the conditions envisaged by Section 15A of the Jammu and Kashmir Tenancy Act, 1980, do or do not stand satisfied by the appellants.

Pursuant to this order the learned Munsiff has held the enquiry and submitted a report. According to the report the appellants were the protected

tenants of the land in question. Counsel for the parties were allowed opportunity to file objections to the report. Mr. J. P. Singh has not chosen to

file any objection where as Mr. C. L, Kotwal has objected to the report.

(4) During the pendency of this appeal the Agrarian Reforms Act, 1972, also came into force. The appellants therefore made an application that

the proceeding* in this appeal should abate as admittedly the appellants were in possession of the land on 1st of September, 197), the dare fixed

by the Agrarian Reforms Act Objections were invited to this application also from the respondent. That application came up for hearing before me

on 8101974 After having heard the counsel for the parties for sometime I was of the opinion that the decision on the question of the applicability of

the Agrarian Reforms Act was cicely interwoven with the merits of the main appeal, I, therefore, directed that this application would also be heard

alongwith the main appeal.

(5) The two major questions therefore which now remain to be resolved are as follows:

(i) Whether the appellants have become protected tenants under Section 15A of the Tenancy Act ; and

(ii) Whether the provisions of the Agrarian Reforms Act have any bearing on the merits of this appeal ?

(6) Before I proceed to examine these questions it will be advantageous to reproduce Section 15A subsection (1) with two provisos appended to

it :

Provided that the right of protected tenancy of a tenant shall cease when a landlord resumes land for personal cultivation under section 49 of the

Act.

Provided further that the right of protected tenancy of a tenant holding under a lessee or a mortgagee, shall also cease on the expiry to the lease or

mortgage, as the case may be, if the lessor or the mortgagor was in self cultivating occupation of such land immediately before such land was

leased or mortgaged and such land including the other land in his personal cultivation does not exceed the size of the holding specified for a

landlord in clause (a) of section 45 of the Act.''

(7) According to the first proviso to subsection (1) of Section 15A of the Tenancy Act the right of protected tenancy of the tenant ceases when a

landlord resumes land for personal cultivation under section 49 of the Act. According to the second proviso the right of protected tenancy of the

tenant holding under a lessee or a mortgagee must also cease on the expiry of the lease or mortgage as the case may be, if the lessor or the

mortgagor was in self cultivating occupation of such land immediately before such land was leased or mortgaged and such land including the other

land in his personal cultivation* does not exceed the size of the holding specified for a landlord in clause (a) of Section 45 of Act. Two conditions

therefore must enexist to entitle a tenant to a protected tenancy right in respect of the mortgaged land. The first condition is that the mortgagor was

in self cultivating occupation of such land immediately before such land was mortgaged The second requirement is that such land including that

other land in his personal cultivation does not exceed the size of the holding specified for a landlord in clause (a) of Section 45 of the Act.

(8) According to the report of the Munsiff, land measuring 15 kanals and 17 marlas in survey No. 121, was in self cultivating occupation of Nathu,

the mortgagor whereas Khasra Nos. 125 min and 155 were not in his self cultivating occupation immediately before the date of the mortgage. So

far as the holding of the plaintiff is concerned, the Munsiff has reported that the plaintiff is in cultivating occupation of 41 kanals and 16 marlas of

Khushki land out of which he holds only 10 kanals and 15 marlas in proprietory rights and the rest is held by him in tenancy right. The land in

dispute in this appeal comprising of all the khasra Nos. comes to 29 kanals and 4 marlas. The total land in the cultivating occupation of the plaintiff

and the one involved in this appeal comes to 7l kanals On this premises the Munsiff has reported that the size of the holding of the plaintiff landlord

exceed the size of the holding specified in Sec 45 (a) of the Tenancy Act. This finding has been based by the Munsiff on the statement of the

patwari concerned and the record. Mr Kotwal appearing for the respondent has not seriously disputed the correctness of the finding that Nathu,

the mortgagor, was in cultivating occupation of only 15 kanals and 17 rmrlas of land out of 29 kanals and 4 marlas covered by the mortgage. The

first requirement contemplated by the second proviso therefore is satisfied in respect of 15 kanals and 17 marlas of land only which has been

proved to be in the occupation of the respondent immediately before the date of the mortgage.

(9) There is, however, a substantial dispute in regard to the fulfilment of the second condition contained in the second proviso to subsection (1) of

Section 15 of the Tenancy Act.

(10) Mr. J P. Singh, counsel for the appellant, submitted that the second condition is not satisfied in the present case. According to him, the size of

the holding of the respondent exceeds the size of the holding prescribed in Section 45 (a) of the Tenancy Act, as according to the statement of the

patwari, the total land held by the respondent both as an owner and as a tenant comes to 71 kanals. Mr. Singh wants me to hold that the land held

by the respondent in tenancy rights also falls within the term ""personal Cultivation for purposes of Section 45 (a) and the proviso to subsection 1

Section 15 (A). This in my opinion is not the correct state of law. The word ""holding"" has been defined in the Land Revenue Act. Section 3

subsection 4 of the Act reads as under:

Holding means a share or portion of an estate held by one landholder or jointly by two or more share holders.

(11) The term ''landholder"" has been defined in sub section 3 of Section of the land Revenue Act, as under :

Landholder"" does not include a tenant or an assignee of land revenue, but does include land owner, chakdar, and a person to whom a holding has

been transferred or an estate or holding has been let in farm under this Act for the recovery of an arrear of land revenue or of a sum recoverable as

such arrear, and every other person not here in before in this clause mentioned who is in possession of an estate or any share or portion thereof, or

in the enjoyment of any part of the profits of an estate.

(12) A joint reading of these two terms conclusively suggests that the land in the tenancy rights was not to be treated as a part of the holding.

Section 2 subsection 10 of the Tenancy Act provides that the aforesaid two terms shall have the same meaning as is assigned to those terms in the

Jammu and Kashmir Land Revenue Act, 1980. It is not the before permissible to take into account the land held by the respondent in tenancy

rights for purposes of determining the size of his holding under section 45 (a) of the Tenancy Act.

(13) Mr. Singh further argued that proviso to Section 15 (A) of the Tenancy Act contains the words ""Such Land"" including the other land in his

personal cultivation does not exceed the size of the holding specified for a landlord in clause (a) of Section 45 of the Act. He contends that even

when a mortgage was in personal cultivation as a tenant of land other than that covered by the mortgage it must be counted for purposes of

determining the size of the holding This contention also in my opinion is not legally correct as the word ""personal cultivation"" occurring in Section 15

(A) and Section 45 (a) must be deemed to have been used only in relation to the land which is owned by a person and is in his cultivation. A

person can be said to be in personal cultivation of particular land only when he is the owner thereof. A person in cultivating possession as a tenant

of the land belonging to somebody else can be described as a person in cultivating possession and not in personal cultivation. Giving therefore the

plain etymological meaning to the word ""personal cultivation"" it appear to me that the intention of the legislature was to count only the land in

ownership rights for purposes of clause (a) of Section 45 and not the land held in tenancy rights. According to the patwari the land owned by the

respondent in his personal cultivation is only 10 kanals and 15 marlas. Adding 29 kanals and 4 marlas being the land covered by the mortgage the

total comes to far less than 8 acres being the size of the holding prescribed by clause (a) of Section 45 of the Tenancy Act.

(14) Mr. Singh then contended that it is the size of the holding which the landlord is entitled to resume under section 45 (a) which should be the test

and not the size of the holding which a landlord holds. This argument, how even does not requite an examination as assuming what Mr. Singh says

is correct the sum total of the land covered by the mortgage and that owned by the respondent according to the statement of the patwari is even

below 6 acres of land which according to Mr. Singh should be the size of the holding.

(15) Judging the matter therefore from every angle it appears that the mortgagor in the present case cannot be deemed to be holding land more

than the size of the holding specified by Section 45 (a) and therefore there is no escape from the conclusion that the second condition contained in

the second proviso to section 15 (A) of the Tenancy Act also stands satisfied but only in respect of 15 kanals and 17 marlas of land which was in

self cultivating possession of the mortgagor at the time the mortgage was created.

(16) The next question which falls for decision is as to the effect of the J & K Agrarian Reforms Act, 1972, on the merits of the case Mr. C L

Kotwal submitted that the Act had no application to the facts of the present case as the possession of the defendants over the land from the date of

the redemption of the mortgage must be deemed to be unauthorised. The answer to this question therefore will depend on what was the nature of

possession of the defendant over the suit land. In case they are held to have been in possession as tenant undoubtedly the ownership rights of the

plaintiff in the land must be taken to have extinguished under Section 3 of the Agrarian Reforms Act with the result of nonsuiting the plaintiff. In the

event, however, of the defendants being held to be in unauthorised occupation of the land the Act cannot be said to have any application From

what has been stated in the preceding paras of this judgment it is obvious that the possession of the defendants over 15 kanals and L7 marlas of

land lying under khasra No : 121 which was in self cultivating occupation of the mortgagor immediately before the date of the creation of the

mortgage and which together with other land in his personal cultivation does not exceed the size of the holding specified for a landlord in clause (3)

of Section 45 of the Act, was rendered unauthorised as the tenancy rights of the defendants to the extent of that portion of the land cease to exist

by virtue of the second proviso to subsection (1) of Section 15 (A) of the Act. The said proviso gave a right to the mortgagor to recover

possession of that land simultaneously terminating the tenancy rights of the defendants. In respect of this portion of the land, therefore, over which

the possession of the defendants has to be deemed to be unauthorised the ownership rights of the plaintifflandlord cannot be said to have

extinguished under section 3 of the Agrarian Reforms Act. In regard to the remaining land measuring 13 kanals and 7 marlas, however the tenancy

rights of the defendants which were otherwise liable to terminate on the cessation of the mortgage were protected by the aforesaid provision of the

Tenancy Act. With the aid of this provision the tenancy rights of the defendants were protected disentitling the landlord from recovering possession

of that land as a concomitant of the redemption of the mortgage The possession of the defendants therefore on 1.9.1971 as also on, the date of the

commencement of the Agrarian Reforms Act was not that of a trespasser or an unauthorised occupant but of a tenant. The plaintiffland lord

therefore has to be deemed as not in personal cultivation of the land and the ownership rights of the plaintiff therefore must extinguish under Section

3 of the aforesaid Act To the extent of 13 kanals and 7 marlas of land therefore the plaintiff's right of ownership having extinguished the claim for

possession must fail.

(17) In consequence therefore the appeal being a continuation of the S.U.K must abate to the extent of 13 kanals and 7 marlas but so far as 15

kinals and 17 marlas of land is concerned, the plaintiff has to be held entitled to a decree for possession, The rights of the parties in relation to the

land measuring 13 kanals and 7 marlas in respeer of which the appeal is held to have abated, shall have to be determined by the authorities under

the Agrarian Reforms Act consistently with the provisions of that Act.

(18) In the result the appeal is allowed in part and the plaintiffs suit for possession of 15 kanals and 17 marlas of land lying under khasra No 121

situate in village Niadi Tehsil Saraha is decreed The plaintiff's claim regarding the rest of the land shall have to be determined by the authorities

under the Agrarian Reforms Act as indicated above,.

Sd/ D. D. Thakur J.

At this stage the counsel for the parties seek to leave to appeal under the letters Patent against this Judgment. Keeping in view the complexity of

the question involved in this appeal and the possibility of the contrary view thing correct I grant leave to both the parties to appeal to the Division

Bench under the letters Patent.