Per Mansoor Ahmad Mir, J.:-

1. Challenge in this LPA is to the Judgment dated 12.12.2000 passed by the writ court in OWP No. 1027/88 whereby the order passed by the respondent No. 2- J&K Special Tribunal Jammu came to be set-aside, hereinafter for short referred to as impugned judgment.

2. During the pendency of the appeal, Karnail Singh- respondent died and his legal heirs were brought on record vide order dated 23.8.2002.

BRIEF FACTS:

3. Jagan Nath S/o Fangni R/o Panjore Tehsil Jammu executed a document "Deed of Mustajri" for a period of 20 years in favour of Inder Singh S/o Kirpal Singh and Karnail Singh S/o Budhi Singh Rs/o Dubta Tehsil Jammu in lieu of Rs. 1000/-which was received by Jagan Nath in advance. After completing 20 years of Mustajri, Inder Singh and Karnail Singh had to return the possession of the land to Jagan Nath.

4. During the pendency of 'Mustajri', Jagan Nath sold 8 kanals out of said 40 kanals 8 marlas of land to Savitri Devi-appellant, who, after the expiry of 20 years-fixed term made a request to respondent Karnail Singh for handing over the possession of land, was turned down by him constraining the appellant to file a civil suit before learned City Judge, Jammu on 30th of July, 1976.

5. Vide order dated 29th of September, 1976, learned City Judge, Jammu returned the plaint to the appellant for presenting the same before the court of competent jurisdiction, was assailed before learned District Judge, Jammu. Learned District Judge modified the order and transferred the suit to Collector Agrarian Reforms in terms of Section (19) (e) of the Jammu & Kashmir Agrarian Reforms Act, 1976, hereinafter for short as Act.

6. Collector held that no relation of landlord-tenant existed between the parties and directed the respondent Karnail Singh to handover the possession to the appellant. It is apt to reproduce the operative part of the order dated 14th of November, 1983 herein:-

"The learned counsel for the respondent contended that Mustajri was a fixed term tenancy and Karnail Singh was a tiller in terms of the provisions of the Agrarian Reforms Act, 1976.

I don't find the contention of the learned counsel for the respondent to be convincing because the language of the deed and the entry of Khasra Girdawari of Kharif 2010 is very clear that after the expiry of 20 years from 2010, the land shall be restored to the landlord. A fixed amount had been paid at that time. In Kharif 1971 there is no relationship of landlord and tenant and no mention of rent payable. But for the nomenclature I think 'Mustajri' in this case is not different from mortgage which has to be redeemed under section 10 of the Agrarian Reforms Act. In case respondent is not considered a mortgagee, he can only be defined as a trespasser after kharif 1973. In both the cases, he is liable to be ejected from the land.

In view of the above, it is ordered that possession of the land measuring 8 kanals comprising Khasra No. 331 of village Panjore Tehsil Jammu be restored to Smt. Samitri applicant. Besides a lump sum amount of Rs. 500/-be also recovered from the non-applicant (Respondent) as the cost of case and part of the benefit derived from the land during the period of litigation and paid to applicant. The copy of this order be sent to Tehsildar Jammu for immediate execution."

7. Karnail Singh-respondent feeling aggrieved questioned the same by the medium of appeal before Appellate Authority-Financial Commissioner with pow­ers of Commissioner under Agrarian Reforms Act, 1976, was dismissed while confirming the finding returned by the Collector. It is profitable to reproduce the operative part of the order herein:-

"The earnings etc. from the land were to be deemed to have been adjusted against Rs. 1000/- and not a single penny was paid during the period of 'Mustajri'. I have considered these issues and am of the opinion that the appellant was not a tenant of the respondent. The land was given to the appellant and Inder Singh only to deprive profits out of it a

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