A co-sharer in possession cannot claim tenancy against other co-sharers, as personal cultivation by one is deemed for all, making Agrarian Reforms Act provisions inapplicable.

JUDGEMENT

1. Petitioner is aggrieved of the order of the J&K Special Tribunal dated 20.09.1991 in case titled "Sadanand v. Prithipal & Ors.", vide which, the revision petition filed by the petitioner was disposed of and the order of the Agrarian Reforms Commissioner was upheld to the extent of holding the respondent Nos. 1 to 6 entitled to the share of 27 kanals 3 marlas.

2. Briefly stated the material facts are as under:-

a. land measuring 100 kanals falling under khasra No. 1, 2, 3 and 68/17 at village Rajiani (Kathua) was given to the mother of late Amar Nath for the services rendered by him in the Army at war, since the father of late Amar Nath had already died, therefore, the land was given to the mother Kubjaan.

b. The mother of Amarnath namely Kubjaan, who has four children Amarnath, Vasdev, Ratno Devi and Shanti Devi. It was on the death of Amar Nath that the land was given to his mother and, therefore, all these surviving three children became co-owners after the death of their mother. The mutation was, thus, accordingly attested in favour of Vasdev, Ratno Devi and Shanti Devi.

c. In the jamabandi of Kharief 1968-69 of Village Rajiani Tehsil Kathua, Sadanand, son of Vasdev, was recorded as a protected tenant/co-sharer in 38 kanals 11 marlas each. Similarly in Khasra Girdawari of Kharief 1971 Sadanand was recorded as co-sharer.

d. Vide mutation No. 67 dated 11.06.1979 (inheritance), the estates of Kubjaan was divided into three shares and devolved upon Koushalya W/o late Vasudev, Shanti Devi and Ratno Devi daughters of Kubjaan in equal shares. After the death of Ratno Devi, the share was devolved upon her successors. The father of the petitioner Sadanand and Ratno Devi and Shanti Devi were real brothers and sisters and respondent No. 4 to 9 and performa respondent No. 10 started cultivating the land as co-sharers.

e. The controversy started vide mutation No. 79 dated 18.10.1986 under Section 4 of the AGRARIAN REFORMS ACT , land measuring 63 kanals and 6 marlas was hand over to the state on the basis of entries made in the revenue record in Kharief 1971 in favour of Vasdev, who was shown to be in cultivation of the petitioner as one of the co-sharer.

f. The father of the petitioner was only entitled to 1/3rd of the land out of the land of his predecessor in interest and vide mutation No. 84, by virtue of private agreement under Section 12 of the AGRARIAN REFORMS ACT , Shanti Devi relinquished her share in favour of the petitioner. The performa respondent No. 10 also got land measuring 2 kanals and 5 marlas on the basis of exemption application filed by him under Section 7 of the AGRARIAN REFORMS ACT .

g. Aggrieved of the mutation under Section 4 and 8 of the AGRARIAN REFORMS ACT , the respondents preferred an appeal in the court of Joint Agrarian Reforms Commissioner, Jammu, who vide order dated 18.10.1986 passed on mutation No. 79 attested by the Naib Tehsildar Kathua, vide which, 63 kanals and 6 marlas of land comprising of Khasra No. 1 min, 2 min, 160/84/68/17, 161/84/ 68/17 were mutated in the name of the State and on 15.11.1987, rights under Section 8 of the AGRARIAN REFORMS ACT were conferred in favour of the petitioner.

h. The Agrarian Reforms Commissioner after considering the appeal held that the appellants and the respondents as discernible from the record have been recorded as co-sharers/co-owners in cultivating possession in Kharief 1971, as the respondents were cultivating the same as one of the owners and, therefore, the question of creating the tenancy on the land does not arise. Since the respondent being owner of the land in appeal was not liable to be recorded as tenant, thus, the provisions of Section 4 of the AGRARIAN REFORMS ACT was not applicable. Accordingly, the Joint Agrarian Reforms Commissioner