Sardar Mohammad vs Member, J&K Special Tribunal and Others

In the revenue record in the column of ownership the land is mentioned as Shamlat Deh Hasab Rasad Khewat. In the tenancy column the land

has been described as Makboza Malikan. The petitioner who claims to be a tenant, submits that on account of his being a tenant in Kharif, 1971

right in terms of Section 4 and 8 of the Agrarian Reforms Act of 1976, be conferred on him. This prayer has been rejected. An order has been

passed by the J and K Special Tribunal, Jammu. This is subject matter of challenge in this petition.

The view expressed by the Special Tribunal is that the land having been recorded as Shamilat Deh, this would not be covered by the J and K

Agrarian Reforms Act of 1976.

It be seen that within the territorial limits of every village some portion of the lands are reserved for purposes of common pasture, for assemblies

of people, for the tethering of the village cattle, and the possible extension of the village dwellings and that lands so reserved are jealously guarded

as the common property of the original body of settlers who founded the village or their descendants and occasionally also those who assisted the

settlers in clearing the waste and bringing it under cultivation are recognized as having a share in these reserved plots. It be noticed even in villages

which have adopted separate ownership as to the cultivated area, some such plots are usually reserved as village common. It is not unusual to find

certain portions of the waste reserved for the common use of the proprietors and other portions for common village purposes. These are described

Shamilat Patti and Shamilatdeh. As a general rule only proprietors of the village (malikandeh) as distinguished from proprietors of their own

holdings (milikan makbuza khud) are entitled to share in the Shamilatdeh.

The cosharers in the Khewat are entitled to a share in proportion to the revenue paid by them. (See Malik Mohammad Sher Khan vs. Ghulam

Mohammad, AIR 1932 :Lah 334). The rights of a proprietor in the Shamilat are not a more necessary to the land held by him and therefore an

alienation of the latter does not ipsofacto confer any rights in the former to the aliencee. In the absence of custom none of the propprietors can do

anything which alters the conditions of the joint property without the consent of all the cosharers nor can any individual proprietor plant or cut trees

on the common land, nor sink a well, nor appropriate houses built for common purposes except with such consent. Nor in the absence of custom

can the will of the majority of a village common community prevail against that of the minority when the question is one as to the disposal of the

common property in such a way as to preclude all use of it by the owners. Thus, it is seen that ShamilatDeh land has certain distinctive and

characteristic features of its own and even a majority of the cosharers cannot destroy its character.

These are some of the broad concepts of Shamilatdeh.

Before proceedings further the definition of owner may also be examined. This reads as under:

Owner"" means a landholder, as defined in the Jammu and Kashmir Land Revenue Act, Samvat 1996 and includes a person claiming through him"".

For the definition of land holder reference be made to the definition so found in the J and K Land Revenue Act. This reads as under :

Landholders"" does not include a tenant or an assignee of land revenue, but does include landowner, 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 herein before in this clause mentioned who is in possession of an estate or any share or portion thereor,

or in the enjoyment of any part of the profits of an estate"". 8. If the above concept of Shamilatdeh as analysed above, is taken note of and again if

the enthes in the revenue record are taken note of then no fault can be found with the view expressed by the revenue authorities. 8 Kanals and 3

Marias of land has been shown as Gair Mumkin Makan. This would not be covered by the definition of land as occuring in the Agrarian Reforms

Act. It is only that structure of land which is used for the purposes connected with agriculture could fall with the definition of land. This would

become apparent from the perusal of Section 2(9). This section is reproduced below :

(9) Land means land which was occupied, or was let for agricultural purposes or for purposes subservient to agriculture or for pasture in Kharif,

1971 and includes a) structures on such land used for purposes connected with agriculture.

b) areas covered by or fields floating over water

c) forest land and wooden wastes;

d) trees standing on land and

e) but does not include an orchard or site of a building or a structure within municipal area, town area, notified area or village abadi or any land

appurtenant to such building or structure"".

Therefore, 8 Kanals and 3 Marlas of land would not be covered by the Act of 1976. In the ownership column the entry is shown as

Shamilatdeh Hasab Rasad Khewat. In the column of tendency it is mentioned as Makbooza Malikan. If this be the position then the petitioner

cannot contend that he being a tenant on the land is entitled to the benefit of the Act of 1976. There exists no provision in the Agrarian Reforms

Act which deals with Shamlat lands. Partitionable Shamilat land is divided among the land holders of the village according to their proprietory land

is the correct. Again the view expressed by the courts below that their existed not relationship between the landholder and the tenant is also

correct.

10 In view of the above, this petition is found to be without merits and is dismissed.