The main legal point established in the judgment is that non-occupancy rights are not heritable under the Tenancy Act, and the lack of proprietary rights conferred on the deceased tenant influenced the court's decision.

This appeal arises from the judgment and order of learned Single Judge dated 24.11.2004 passed in OWP No. 168/2001 by virtue of which the writ petition preferred by the appellant was dismissed.

2. Petitioner approached the writ court seeking a direction to quash the order of respondent No. 1 ( J&K Special Tribunal, Jammu ) dated 05.03.2001 by which the restoration order dated 02.02.1980 passed by the Custodian and order dated 16.02.1995 passed by Custodian General affirming the order of Custodian under section 8 of the Evacuees (Administration of Property) Act, have been set aside.

3. The dispute pertains to the devolution of the right of non-occupancy tenancy held by Jumma on the appellant-daughter on the death of the deceased- tenant who was killed in the disturbances of 1947.

4. The case of the appellant is that her father, Jumma was in cultivating possession of the State land aggregating 54 Kanals and 5 Marlas comprising survey Nos.683 and 696 located at village Maheen Sarkar, Tehsil Samba, District Jammu as non occupancy tenant prior to 1947. Jumma was killed at Miran Sahib in 1947. The land in issue came in cultivating possession of Behari Lal, predecessor- in-interest of respondents 4 to 8, Udhay Ram, Kaiser and Kashmiru Lal, which, according to them, allotted in their favour under Government Orders LB-7 and 578-C respectively. They continued to be in possession of the said land till evicted in pursuance of order dated 02.02.1980 passed by the Custodian under section 8 of the Evacuees (Administration of Property) Act (hereinafter, for short, referred to as `the EP Act ). The appellant, Barkat Bibi, claiming to be the sole surviving heir of Jumma and entitled to the possession of the land in issue as an owner, moved an application before the Custodian in the year 1979 seeking to denotify the land in question in stating that her father, Juma, held the said land as non-occupancy tenant. The appellant further claimed restoration of the possession of the property in stating that the said property was never notified under the EP Act. The appellant also moved the Revenue Authorities asserting her claim for vesting of proprietary rights over the land in issue being the daughter of Jumma in pursuance of Council Order No. 1234-C of 1939. The claim of the appellant, however, came to be accepted by the Tehsildar, Samba, who held that Jumma, her father, being in cultivating possession of the land during the relevant period could be conferred with proprietary rights in terms of the aforesaid Council order on payment of prescribed Nazrana and production of State Subject. The Revenue Tehsildar further held that the appellant could succeed to the rights of her father being sole surviving successor and attested mutation No. 387 in conferring ownership right upon her in respect of the land in issue vide order dated 07.01.1979. This mutation, however, was challenged in appeal by the predecessor-in-interest of respondents 4 to 8 and other respondents before the Deputy Commissioner, Jammu, but the same was dismissed. Director, Land Records, Jammu before whom revision was preferred to assail the order of Deputy Commissioner, recommended the case of the appellant before him to the Financial Commissioner. The Financial Commissioner accepted the revision and set aside the mutation attested by the Tehsildar (Revenue) in favour of the appellant, vide order dated 22.12.1983. Aggrieved by the aforesaid order, the appellant approached the High Court by filing a writ petition, which came to be dismissed. The appellant also could not succeed in Letters Patent Appeal filed against and also Special Leave Petition there-from.

5. On the application of the appellant under section 8 of the Evacuee Property Act, 2006 for deletion of the land from E.P. list and restoration of the same to her, Custodian declared her to be entitled to the restoration of the possession of the land in issue and dispossessed the persons in possession of the said land