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The term “Ghair Marusi” refers to a non-occupancy tenant or a tenant who has abandoned or relinquished the possession of the rented property. The term is commonly used in the revenue records and land laws of Jammu and Kashmir.
The term “Ghair Marusi” originates from the Persian language. In Persian, “Ghair” means “other” or “non,” and “Marusi” means “occupied” or “inhabited.” When combined, “Ghair Marusi” translates to “non-occupied” or “uninhabited.”
When a tenant is classified as “Ghair Marusi,” it indicates that the tenant is no longer residing in or utilizing the rented property. The property may be lying vacant, and the tenant is considered to have given up their rights and claims over the property.
Breakdown
The question of whether an unprotected tenant, also known as ghair marusi, can transfer or surrender land to another party or for a graveyard in Jammu & Kashmir is a complex one.
First of all, what is an unprotected tenant or ghair marusi? According to the Jammu & Kashmir Agrarian Reforms Act, 1976, an unprotected tenant is a person who holds land from a landowner without any written agreement or lease and pays rent in cash or kind. An unprotected tenant does not have any security of tenure and can be evicted by the landowner at any time. An unprotected tenant is also not entitled to any compensation or benefits under the land reforms law.
Secondly, what are the reasons for an unprotected tenant to transfer or surrender land to another party or for a graveyard?
There could be various reasons for this, such as:
– The unprotected tenant may want to sell the land to another person for a higher price and make some profit.
– The unprotected tenant may want to give up the land to the landowner or another person in exchange for some favour or relief from rent or harassment.
– The unprotected tenant may want to donate the land for a charitable or religious purpose, such as building a mosque, a school, a hospital, or a graveyard.
– The unprotected tenant may want to vacate the land due to personal reasons, such as migration, illness, death, etc.
Thirdly, what are the legal implications of transferring or surrendering land by an unprotected tenant? The legal implications of this depend on the nature and validity of the transfer or surrender. According to the Jammu & Kashmir Agrarian Reforms Act, 1976, an unprotected tenant cannot transfer or surrender land without the consent of the landowner and the approval of the revenue authorities. Any transfer or surrender made without such consent and approval is null and void and does not affect the rights of the landowner. Moreover, any transfer or surrender made by an unprotected tenant for a graveyard is also prohibited by law. Section 13(2) of the Jammu & Kashmir Muslim Personal Law (Shariat) Application Act, 2007 states that no person can alienate any immovable property by way of gift (hiba) for a graveyard unless it is absolutely necessary and there is no other suitable place available for burial.
Therefore, if an unprotected tenant transfers or surrenders land to another party or for a graveyard without following the legal procedure, he/she may face several consequences, such as:
– The transfer or surrender may be challenged and cancelled by the landowner or the revenue authorities.
– The transferor or surrenderor may lose his/her possession and cultivation rights over the land and may have to vacate it.
– The transferee or surrenderee may not get any legal title or ownership rights over the land and may have to face eviction or litigation.
– The transferor or surrenderor and the transferee or surrenderee may be liable for criminal prosecution and punishment under various laws.
Precedents on the Subject
Boddam Narsimha v. Hasan Ali Khan (Dead) By Lrs. And Others
Facts
On the demise of Nawaz Jung Bahadur, one of his sons Mohd. Ali Khan filed a suit for partition of the properties oflate Nawaz Jung Bahadur. The scheduled property was Item 6 of Schedule B in Suit No. 42 of 1962 filed in the CityCivil Court, Hyderabad. In the plaint it was stated that Item 6 was in possession of the tenants. This kaulanama wasexecuted by one Hamid Ali Khan, son of Mohd. Nawaz Jung. Hamid Ali Khan sold his share to Bala on 23-11-1959through a registered sale deed. Accordingly, Bala became a pattedar in place of Hamid Ali Khan in respect of the suitland. The alienation in favour of Bala was during the pendency of the suit for partition of the ancestral propertiesbelonging to Nawaz Jung Bahadur. Bala died in 1975. In the said application, it was alleged for the first time that lateBala was a protected tenant. Bala was the paternal uncle of the appellant herein. He, during his lifetime, did not claimto be a protected tenant. Even his LRs did not claim that Bala was a protected tenant in respect of the said land,therefore, for the first time, the nephew of Bala, the appellant herein, sought a declaration that Bala was a protectedtenant under Section 37-A and accordingly claimed an ownership certificate under Section 38-E of the Act after alapse of more than 40 years.
Issues
- Whether Bala was a protected tenant under Section 37-A of the Act?
- Whether the appellant is entitled to an ownership certificate under Section 38-E of the Act?
- Whether the appellant’s claim of protected tenancy is barred by delay and laches?
Decision
The appellant is not entitled to the ownership certificate or a declaration of protected tenancy under the Act. TheHigh Court was right in dismissing the petition on the ground of delay and laches. The civil appeal is dismissed withno order as to costs.
Reasoning
The statutory rights of the protected tenant conferred under Section 37-A upon cultivating tenants in possession on12-3-1956 are automatic and not dependent on applications to be made. No notice was ever given to the appellantthough the appellant’s family continued to remain in possession. As no such notice was ever issued, the applicationmade by the appellant in 1998 under Section 38-E should have been treated as an objection to the provisional list and,therefore, the Tribunal had wrongly rejected the appellant’s application for ownership certificate. However, Balabecame a pattedar in 1959 and under Section 38-E, ownership rights are conferred only upon persons who continue tobe protected tenants as on 1-1-1973. Therefore, in any view of the matter, the appellant herein was not entitled to theownership certificate under Section 38-E of the Act. Bala was a lessee from Hamid Ali Khan and since the presentappellant is not the LR of Bala, he is not entitled to an ownership certificate or a declaration of protected tenancyunder the Act. The present appellant falsely claimed to be a protected tenant as on 1-1-1973 and the entire exercisewas an abuse of process of law. In the circumstances, the High Court was right in dismissing the petition on theground of delay and laches.
Sada v. Tahsildar, Utnoor, Adilabad District
Issues:
- Questions concerning the rights of protected tenants
- Statutory conferment of ownership rights on protected tenants under S. 38-E of the Act
Facts:
- In Chinnaboini Narsaiah v. Tahsildar, Mahaboobabad, Warangal District, (1979) 1 Andh WR (HC) 23 aDivision Bench of this Court consisting of Madhava Reddy, J. (as he then was) and Narsinga Rao, J. hadoccasion to deal with S. 38-E and connected provisions of the Act.
- The Legislature amended the Act by the Amending Act 2 of 1979 after the above-mentioned judgment.
- G.O.Ms No. 3 Rev.(G) was issued by the Government on 1-1-1973 notifying all the districts in Telangana underS. 38-E(1) for purposes of statutory transfer of ownership to protected tenants.
- The landholders filed a batch of writ petitions questioning the Amending Act 15 of 1971 and the proviso andthe explanation. The Rules of 1973 were also questioned. The writ petitions were dismissed.
- Jeevan Reddi, J. dismissed the writ petitions on 12-12-1977.
Ruling:
- For the vesting of the ownership of land ?held? by a protected tenant under S. 38-E(1), it is not necessary thatthe protected tenant should have been in physical possession on the date of notification.
- The restoration of possession to the protected tenant under the latter part of the Explanation to S. 38-E(1) isnot a condition precedent for initiation or grant of ownership certificate under Section 38-E(2).
- If under Ss. 19, 32 and 44, the protected tenants have ceased to be such, by the date of notification, there is noquestion of declaring them to be owners.
- The new proviso to S. 38-E(2) added by Act 2 of 1979 is retrospective and permits restoration of possessionwhere ownership certificate is issued before 11-1-1979 when Act 2 of 1979 has come into force.
- Ss. 19 and 32 apply to ?tenants? as well as to ?protected tenants?.
- Pleas of adverse possession are not admissible against protected tenants.
- The plaintiffs did not pursue the matter in appeal or revision under the Act and are barred from seekingpossession and the declaration sought for.
- The appellants shall not be evicted from the property till 30th November, 1987.
B. Bal Reddy v. Teegala Narayana Reddy And Others
Facts
Teegala Shivaiah was a Protected Tenant of agricultural lands in Koheda Village. The respondents are the heirs andsuccessors of Teegala Shivaiah. Even though Teegala Shivaiah died in 1964, the respondents moved an application in2001 for grant of Succession Certificate in their favour. Pursuant to an order dated 13.07.2004, possession wasrestored in favour of the respondents on 30.08.2004. The appellants preferred appeals challenging the orders dated27.04.2004 and 13.07.2004. The High Court considered Civil Revision Petition No. 4904 of 2006 as the lead matter.
Issue
Whether the legal heirs and representatives of a Protected Tenant are entitled to restoration of possession in theabsence of valid termination of the Protected Tenant’s status?
Decision
The High Court allowed the Civil Revision Petitions in favour of the respondents and dismissed the appeals of theappellants with costs quantified at Rs. 25,000/- in each of the appeals to be paid by the appellants to the respondentsi.e the heirs and legal representatives of the Protected Tenant.
Rationale
As per the Hyderabad Tenancy and Agricultural Lands Act, 1950, the interest of a Protected Tenant continues to beoperative and subsisting in law and could devolve on his legal heirs and representatives who could then claimrestoration of possession. Even if the Protected Tenant had lost possession, without there being valid termination ofhis status as a Protected Tenant, he would still be entitled to all incidents of protection under the Act. Therefore, theHigh Court’s view in allowing Civil Revision Petitions in favour of the respondents was justified.
