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2012 Supreme(J&K) 721
J&K SPECIAL TRIBUNAL AT JAMMU
Sanjay Gupta, J.
Om Parkash & Anr. -Appellant
Versus
Custodian General J&K Govt. Srinagar & Ors. -Resopndent
STJ-662-2009
Decided On : 23-02-2012
A daughter is not entitled to succeed the occupancy right of her father as per Section 67 of the Tenancy Act.
Headnote:
Custodian Evacuee Property - Unauthorized Possession - Section 67 of Tenancy Act - [Section 67 of Tenancy Act] - The court found that the petitioners were in unauthorized possession of the land and had no legal right over it. The court referred to Section 67 of the Tenancy Act, which dictates the succession to the right of occupancy, and concluded that a daughter is not entitled to succeed the occupancy right of her father. The court emphasized that any alienation or transfer of occupancy right made by the daughter and her husband of the original allottee was illegal and non-existent in the eyes of the law. The court also highlighted that a person who is not in legal possession of property of the custodian and is only a trespasser has no right to retain it.
Fact of the Case:
The petitioner was found to be in unauthorized possession of the land and had no legal right over it. The court concluded that the custodian shall initiate proceedings for leasing out the property under the law.
Finding of the Court:
The court found that the petitioners were in unauthorized possession of the land and had no legal right over it. The court also held that the custodian shall initiate proceedings for leasing out the property under the law.
Issues: Unauthorized possession of land, legal right over the land, initiation of proceedings for leasing out the property
Ratio Decidendi: The court relied on Section 67 of the Tenancy Act to determine the succession to the right of occupancy and emphasized that a daughter is not entitled to succeed the occupancy right of her father. The court also highlighted that any alienation or transfer of occupancy right made by the daughter and her husband of the original allottee was illegal and non-existent in the eyes of the law.
Final Decision: The revision petition was dismissed as it did not suffer from any legal infirmity, and the file of the court below was sent back along with a copy of the order.
2. Brief facts of the case are that one Kanta Devi approached the Custodian Evacuee Property and filed a petition, stating that petitioner herein have illegally and unauthorizedly occupied the Evacuee Property measuring 2K-13M under kh. 286 situated at Chak Malka Tehsil Jammu. That the said land was earlier allotted to her father Dhana Megh and she has been included in the allotment of Mangi Wd/o Dhana as per register of cancellation 1970.That petitioners herein raising the construction over the land without any authority and bent upon to alienate the same. Accordingly Kanta Devi, prayed for restraining the petitioners herein from indulging in such activities.
Custodian Evacuee Property Jammu on 12-7-04 passed an interim direction of maintaining of status quo on spot. Meantime Kanta Devi presented one more application, thereby requesting the Custodian Evacuee Property for keeping the land on superdari, as petitioners herein were alienating the property. Custodian Evacuee Property on 12-10-04 kept the land on Superdanama of Lambardar and Chowkidar of the area.
Petitioners herein filed a revision petition before Tribunal against order dated 12-10-04, but petitioners were advised to approach Custodian General for redressal of his grievances.
3. Accordingly, matter was taken before court below. During the course of argument before the court below it was pleaded on behalf of the petitioners that original allottee Dhana Megh and his wife were having no male issue. The land in question thus came into cultivating possession of their daughter Jeeto Devi who was married to Tilak Raj. Both of them expired but during life time they inducted petitioners in cultivation possession of land. As they have no other land, so they have constructed shed for accommodating their family.
Accordingly it was argued that order of Custodian Evacuee Property dated 12-10-04, thereby keeping the land on superdama of lambardar and chowkidari be set aside.
4. Court below after examining the rival contentions and record, came to conclusion that petitioners are in unauthorized possession of land in question and they have no legal right over the land, accordingly court below dismissed the revision and also held that in the interest of evacuee department that the custodian shall initiate proceeding for leasing out the property under law.
5. I have given my thoughtful consideration to the whole aspect of the matter.
From the perusal of record, I have not found any single legal document from which, it can be inferred, that petitioners at all were given possession of land. It is fact that the land was originally allotted to Dhana Megh and after his death land came into possession of his daughter Jeeto Devi and her husband Tilak Raj. The said original allottee was having no male child. Section 67 of Tenancy Act is relevant for deciding the matter,
6. Section 67 of Tenancy Act reads as under:-
Succession to right of occupancy
(1) When a tenant having a right of occupancy in any land dies, the right shall devolve-
(a) on his male lineal descendants, if any, in the male line of descent;
Explanation - "Male lineal descendants" includes a son, formally adopted according to Hindu Law, and in accordance with any Acts in force in the State regarding such adoptions;
(b) Failing such male lineal descendants on (i) his widows, or (ii) father's widow, or (iii) the widow of male lineal descendant in the male line of descent, who predeceased the late tenant; Provided that, such widow has not remarried, and further that the right of female succeeding to a right of occupancy under this clause shall be extinguished when she dies or remarries, or abandons the land, or is under the provisions of this Act ejected therefrom, and
(c) failing such descendants and widows, or if a fe
