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2003 DIGILAW 194 (JK)

Brij Lal v. Savitri Devi

2003-06-11

R.C.GANDHI, Y.P.NARGOTRA

body2003
This Letters Patent Appeal has been directed against the judgment and order dated 30.6.1999 passed by the learned Single Judge in OWP No. 769/86, remanding the case back to the Deputy Custodian General to hold denovo enquiry and as appropriate orders. 2. Facts and circumstances which are necessary for the disposal of this LPA are that: 3. Deputy Nath, having family of three members, was allotted 18 kanals 18 marlas of land bearing Survey Nos. 194, 193, 239, 243, 445, 475 and 194 of village Jasoore tehsil R.S. Pura, in terms of Cabinet Order 578-C of 1954. 4. Deputy Nath and his widow Bhagwanti died in the year 1964 and 1977 respectively (the exact month and year regarding the death of Bhagwanti is not established). Savitri Devi daughter of Deputy Nath was the sole survivor in the family of Deputy Nath. Savitri Devi was married to Yog Raj had his own allotment of land measuring 11 Kanals 17 marlas. The family of Yog Raj consisted of three members i.e self, wife and daughter. Appellant informed of the authorities - respondents that Yog Raj is having the benefit of double allotment. The Provincial Rehabilitation Officer (Deputy Custodian General) as per learned counsel for the appellant, has issued a direction for cancellation of land measuring 4 kanals 3 marlas out of the land allotted in favour of Yog Raj. There is no allotment order in favour of the appellant as admitted. 5. Learned Single Judge on hearing the learned counsel for the parties and appreciating facts viz-a-viz legal position as contained in Para-15-B of Cabinet Order No. 578-C of 1954 as amended on 17.11.1976, returned the following findings: "(i) that under the rules prevalent before 17.11.1976 there was no disqualification on a person walking out of the family; (ii) Deputy Nath having died some-where in the year 1964 his estate would devolve on his widow and the daughter; (i) on the death of Bhagwanti Devi, the estate would devolve on Mst Savitri Devi petitioner; but this would depend upon date on which she died. If she died earlier to 17.11.1976, then Mst Savitri Devi would become entitled to inherit the property and if Bhagwanti Devi died after 17.11.1976, then position may be different. She would inherit her fathers share only. If she died earlier to 17.11.1976, then Mst Savitri Devi would become entitled to inherit the property and if Bhagwanti Devi died after 17.11.1976, then position may be different. She would inherit her fathers share only. As the respondent-authorities have not taken care of above aspect of the matter; the matter is remanded back to the Deputy Custodian General who passed the order on 24.1.1983 or any other officer exercising the same power, to decide the matter denovo. Till then the parties would maintain status-quo in respect of the land in question." 6. The Judgment under appeal has been challenged on the ground that the learned Single Judge has not taken into consideration Para-12 of the Cabinet Order No. 578-C of 1954 and that the land has devolved upon Savitri Devi which cannot be said to be a case of double allotment. 7. We have heard learned counsel for the parties and perused the record. 8. Learned counsel for the appellant relying upon para 12 of the Cabinet Order No. 578-C of 1954, has submitted that respondents Savitri Devi and Yog Raj were entitled to retain the allotment made in favour of Deputy Nath only in terms of Para 2 sub-para (b) of Cabinet Order No. 578-C of 1954, which reads as under: "(b) in case of the family consisting of three or less members be not less than: (i) 2 acres of abi or 3 acres of khushki in the Ranbir Singh Pura and Jammu Tehsils." Sub Para-II of Para-12 of the Cabinet Order No. 578-C of 1954 is also reproduced as under: " If any family has secured more than one allotment of land as indicated in clause (i) in its favour, it may within one month of the date of the commencement of this order, communicate the fact to the Tehsildar of the tehsil in which it has been allotted land or to the Provincial Rehabilitation Officer, indicating at the same time the particular allotment which it wants to retain with itself. Upon such information being communicated, the Tehsildar or the Provincial Rehabilitation Officer shall cancel the spurious Allotment or allotments made in favour of such family." 9. Upon such information being communicated, the Tehsildar or the Provincial Rehabilitation Officer shall cancel the spurious Allotment or allotments made in favour of such family." 9. It is evident from the perusal of above provision of law that the respondents Savitri Devi and Yog Raj are entitled to retain the land only in terms of sub-para (ii) of para 12 of the Cabinet Order No. 578-C of 1954, which contains option for such allottee to inform the Tehsildar or the Provincial Rehabilitation Officer indicating that which part of the allotment he wants to retain with itself and upon such information, the Tehsildar or the Provincial Rehabilitation Officer shall cancel the spurious allotment made in favour of such family. 10. It is thus evident form the conjoint reading of sub-para b(i) of para 2 and sub-para ii of para 12 of the Cabinet Order No. 578-C of 1954 that in case of a family consisting of three or less members, such family shall be entitled for allotment of 2 acres of abi or 3 acres of khushki land in Ranbirsinghpora & Jammu Tehsils. The parties hail from Ranbirsinghpora tehsil. The family of Yog Raj consists of 3 members. Therefore, Yog Raj is entitled to retain the land according to his allotment based on the strength of the members of the family. 11. The learned Single Judge has referred the matter to the Tehsildar, R.S. Pura for denovo enquiry. We have seen from the perusal of the record that even if the matter is considered by the Tehsildar, the legal position for retention of land by Yog Raj has to be maintained. 12. At this stage, learned counsel for the respondents has been asked to exercise option for retention of land. It is submitted by the learned counsel that the respondents are in possession of land allotted to Deputy Nath, therefore, the respondents be permitted to retain the said allotment. It is not disputed by the other side. 13. In the facts and circumstances of the case, we direct that Yog Raj shall be entitled to retain the land of Deputy Nath measuring 18 kanals 18 marlas situated in village Jasoore tehsil R.S.Pura. This position is agreed by the appellant also. Appeal is disposed of accordingly.