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2008 DIGILAW 69 (JK)

Ab. Rahim Yatoo v. Custodian General

2008-03-19

MOHAMMAD YAQOOB MIR

body2008
1. Land measuring 5 kanals and 11 marlas covered by Survey no.640 situated at Moza Saderbal, Hazratbal, Srinagar, is the proprietary land of one Imam Din(evacuee).Appellants claim to be in possession of 5 kanals and 11 marlas out of the total land and also claim to have been dispossessed by the Custodian Department on 15.11.1999. Consequently, 3 kanals and 10 marlas have been allotted to respondent no. 2 & 3 by the said department. 2. Appellants herein have filed suit for declaration and Permanent injunction praying therein that they are absolute owners of land measuring 5 kanals and 5 marlas as their possession for continuous period of 12 years has ripened into ownership by prescription. Custodian department had no jurisdiction to evict them. Injunction to the effect that possession be handed over to them in alternative they be paid the compensation after its acquisition by the custodian department. 3. Learned Trial court by virtue of impugned judgment has rejected the plaint in terms of order 7 Rule 11 clause (d) of CPC. Aggrieved thereof instant appeal has been preferred. 4. Mr. S.T. Hussain, appearing counsel for the appellant contends that Section 31 of the Evacuee Administration Of Properties Act 2006 (hereinafter referred to as "Act") is not applicable because the land in question is admittedly evacuee property. The appellants are claiming ownership on the basis of adverse possession. Their contention of being owners by adverse possession cannot be settled by Custodian under the proceedings initiated under Section 8 of the "Act". The suit was not barred. Matter was required to be settled during the regular trial. In support of his contention learned counsel relied on various judgments. 5. Mr. Bala, appearing counsel for the Custodian department painfully argued that there is no question of ownership because the land immediately after the migration of Imam Din is vested to the Custodian Any person in possession thereof has a character of unauthorized possessor. In support of his contention, referred to various provisions of the Act. 6. Considered the rival submissions. Admitted position as emerge from the pleadings is that actual owner Imam Din, is an evacuee so the property is vested in the Custodian from the date evacuee has left the State. Various provisions of the Act such as Section 2, Section 3, Section 5, Section 6 to 8 are to be read conjointly alongwith Section 9 of the CPC. Admitted position as emerge from the pleadings is that actual owner Imam Din, is an evacuee so the property is vested in the Custodian from the date evacuee has left the State. Various provisions of the Act such as Section 2, Section 3, Section 5, Section 6 to 8 are to be read conjointly alongwith Section 9 of the CPC. The position of the appellants of being in possession of the evacuee property was unauthorized. In this connection, it is quite apt to reproduce Section 2 clause 5 (g) of the Act. "Unauthorized person" means any person (whether duly empowered in (his behalf by the evacuee or otherwise) who, after the [14th day of August, 1947], has been occupying supervising or managing the property of an evacuee without the approval of the Custodian. " 7. The definition of "unauthorized person" is quite obvious. So the appellants were the unauthorized persons as they were occupying property without approval of the custodian. To claim title on the basis of prescription is barred by Section 3 of the "Act" which reads as under: - "3. Act to over ride other laws -- (1) The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding any thing inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law. (2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply or be deemed ever to have applied to evacuee property.] 8. Looking at the scheme of the "Act", property of the evacuee is to be administered by the department and it is only with the object of protecting the evacuee property, Section 3 of the "Act" has been enacted which provides that all other acts shall not apply to the extent those are inconsistent with the provisions of the "Act". So if a person claims title by adverse possession, same is inconsistent with the provisions of the "Act". Applicability of such law is excluded. Section 9 of the CPC reads as under:- "The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 9. Applicability of such law is excluded. Section 9 of the CPC reads as under:- "The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. 9. Plain reading of this Section amply clarifies that courts can try all civil suits unless barred. The Civil suit filed by the appellants is barred as is express from the wording of Section 3 of the "Act". When the claim of appellants is barred, suit cannot be continued. Order 7 Rule 11 clause (d) of CPC confers the power to the Court to reject the plaint at any stage of the proceedings, if the plaint is barred. The nature of the property being evacuee property is not denied, when it is so, it has to be administered strictly in accordance with the provisions of the "Act". Under other law which guarantees any right to any person but when is inconsistent with the provisions of the "Act", has to be ignored as the "Act" has the over riding effect, otherwise what can be the right or interest of the appellants having been in possession of the suit property can be well taken care of by the Custodian in accordance with the provisions of the "Act" as contained in Section 8. The contention of learned counsel that the relief of title by prescription cannot be granted by the Custodian, is quite acceptable. Custodian cannot grant such relief but such right is not available vis-a-vis the evacuee property which has been occupied by any person after the evacuee has migrated, occupant thereafter has a character of unauthorized person as the property immediately vested to the Custodian. 10. For the reasons and circumstances stated hereinabove, learned Trial court has rightly concluded that the plaint is barred, as such, has rightly rejected it under order 7 Rule 11 clause (d) CPC. Order of the trial court is, as such, up held. Appeal dismissed.