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J&K High Court · body

2009 DIGILAW 670 (JK)

Joginder Lal Kuthiala v. Committee headed by Div.

2009-12-22

A.K.Shan

body2009
1. All these appeals are directed against the demand notices dated 30.7.2007 issued by respondent No:3 asking appellants to pay different sum of amounts for getting ownership rights under the above captioned Act, popularly known as Roshni Act, in respect of different moieties of land held by them in khasra No:235-min situated in Nawabad Jammu City, with the prayer for setting aside the same on variety of grounds adopted in the memo of appeals. 2. As common questions of law and facts are involved in all the appeals, so the appeals are going to be disposed of by a common judgment ,more so for avoiding repetitions of facts and law. 3. The significant broad contour of facts discernible from voluminous record leading to the filing of present appeals are captured here-as-under:- I/ During the Kingdom of the Maharaja Partap Singh, Purohit Mani Ram was royal priest and at the same time in the private office of Maharaja as well as his ADC. Maharaja was much pleased with the services rendered by Mani Ram and used to bestow gifts and presents upon him. In the year 1921, the Maharaja constructed a kothi in land measuring 4 kanals 10 marlas under khasra No:235-min situated along canal road near erstwhile Shanker Theater Jammu, before giving the same along with land as free grant to Mani Ram in lieu of his unflinching services. Mani Ram had also large chunk of ancestrol landed property like 37 kanals 17 marlas in the shape of orchard in village Paloura Jammu and 48 kanals 13 marlas of land in Gool survey land. II/- Mani Ram was drawn towards the family of his collateral on account of alienation of affection from his own wife Ram Dei and son Laxmi Chand. In order to give vent to his feelings of neglect on the part of his nearer heirs, Mani Ram executed a will of his property on 25.5.1959, in favour of Ishri Devi, a widow of his collateral who had stood firmly and served him in his bad days, especially towards the end of his life. In order to give vent to his feelings of neglect on the part of his nearer heirs, Mani Ram executed a will of his property on 25.5.1959, in favour of Ishri Devi, a widow of his collateral who had stood firmly and served him in his bad days, especially towards the end of his life. III/- The land was in possession of the appellants as tenents.Mani Ram died on 24.3.1960, upon which his son managed mutation in his name and got rent deed executed in his favour and dispossessed Ishri Devi from the kothi and land, where upon she filed a suit against Laxmi Chand, his daughter and mother for possession of the property bequeathed to her, which included all the properties referred here-in-above. It was pleaded by Ishri Devi on the ground that three items of the property were separate properties of Mani Ram and he was entitled to dispose of them under a Will. IV/- In the written statement Laxmi Chand and Ors. averred that properties belonged to joint family and they being the members of joint family, Mani Ram was not competent to dispose of same to their detriment. It was also claimed that the will was a forged one and fictitious. V/- The Hon'ble High Court hearing the suit on original side decreed the same to the extent of the Kothi and land apartment to it and dismissed it in regard to the rest of the property, after holding that kohti and land appurtenant measuring 4 kanals 10 marlas given by Maharaja was the self acquired property of Mani Ram which he was competent to dispose of by a Will and the rest constituted ancestral property. The Will was declared genuine and valid. VI/- Laxmi Chand and Ors. went in appeal before the Hon'ble Division Bench against the judgment and decree of the trial court. The Hon'ble Bench headed by the then Chief Justice Hon'ble Mr. S.M.F.Ali and Hon'ble Justice Mr. R.N.Gurtu disposed of the appeal on 12.3.1968 and confirmed the findings of trial court that property at Canal Road described in the judgment as 1 (a) was the self acquired property of Mani Ram while as remaining two properties( described as 1 (b) & 2) were ancestral one. The findings of trial court about the genuiness of will was also confirmed. The findings of trial court about the genuiness of will was also confirmed. While conforming the decree of trial court as regards item 1(a), the Hon'ble Division Bench allowed the claim of Ishro Devi regarding the other two items to the extent of one half of the share by holding that under Section 27 of J&K Hindu Succession Act. Mani Ram was competent to dispose of his interest in joint family property by will. VII/- Aggrieved by the verdict of Hon'ble Division Bench, Laxmi Chand & Ors. preferred 2nd appeal before the Hon'ble Supreme Court of India. VIII/- The Hon'ble Supreme Court presided over by he then Hon'ble Mr. Justices A.C.Gupta and P.S.Kailasan, by an elaborate judgment on 31.3.1977 confirmed the findings of the court below that item 1(a) of the property was self acquired property of Mani Ram and the decree to the extent as well. However, the case was remitted to the Hon'ble High Court for determination of question of interest as regards item 1 (b) and 2, which could be bequeathed by Mani Ram. 4. After becoming absolute owner of item 1(a) by virtue of the judgment of Hon'ble Supreme Court dated 31.3.1977, Ishri Devi sold kothi along with other super structures and land appurtenant to it measuring 4 kanal 10 marlas by four different sale deeds( two dated 14.8.1979 and two dated 6.3.1980) to the appellants, who were already holding the said property as tenants. 5. In year 1996, the Nazool Department raised its head and started claiming item 1(a) as Nazool property, whereupon the appellants jointly filed a suit for declaration that they are the owners of the property in question by arraying state, Assistant Commissioner Nazool and Divisional Commissioner Jammu as defendants, who filed a joint written statement raising vexed questions of law and facts. The specific defence adopted was that property in question was Nazool land and was leased out to Pt. Mani Ram for a period of forty years which has since expired on 17.9.1961 and the same having not been renewed, the possession of appellants/plaintiffs over the suit property is illegal. 6. The suit was originally filed in the Hon'ble High Court in the year 1996 from where it was transferred to the court of learned Additional District Judge (Matrimonial cases) Jammu. 7. 6. The suit was originally filed in the Hon'ble High Court in the year 1996 from where it was transferred to the court of learned Additional District Judge (Matrimonial cases) Jammu. 7. The learned trial court after recording evidence of the parties passed a decree in favour of petitioners on 30.3.2007, to the following effect:- A/- It is declared that plaintiffs are owners of 4 kanals and 10 marlas of land comprised in Khasra No:235-min, Nauabad, Jammu as also super structure existing on the said land to the extent and in accordance with sale deeds (exhibits EXPWJL-1, EXPWJL-2, EXPWJL-3 and EXPWJL-4 in the suit) and their predecessor in interest. Mst. Ishri Devi held valid title in the said property and it was validly bequeathed in her favour by late Prohit Mani Ram to whom the said property was given by way of free grant by the then Maharaja Bahadur. B/- I further hold that the defendants have no right in law to treat the said suit property as Nazool/State Property and, therefore, cannot interfere in the possessory and ownership rights of the plaintiffs in the suit property. 8. As per the appellants, when suit was still sub-judice in the court of Additional District Judge Jammu respondents invited applications for getting ownership rights in respect of State land under Roshni Act, which had come in force in the year 2001. 9. Since the respondents were still claiming the suit land as Nazool/State land so in order to avoid chance of losing land on technical grounds, appellants submitted applications to respondents No: 2 and 3 on 8.1.2007 for vesting of ownership rights in respect of suit land on payment of price without any prejudice to pendency of declaratory suit and with further prayer that in case suit is decided in their favour, any price paid by them be refunded to them. 10. As per record, despite the rider contained in the above applications, Price Determination Committee (herein after the Committee) constituted under Rule 9 of the Roshni Act allowed such applications and fixed rate of Rs. 1.25 crore per kanal and directed the appellants to deposit the amount proportionate to the area of lands under their occupation. The direction to deposit the amount was conveyed to appellants by respondent No:3 vide demand notice dated 30.7.2007. 11. 1.25 crore per kanal and directed the appellants to deposit the amount proportionate to the area of lands under their occupation. The direction to deposit the amount was conveyed to appellants by respondent No:3 vide demand notice dated 30.7.2007. 11. As per the memo of appeal, after passing of decree in favour of appellants by a competent civil court and in the face of rider contained in their applications supra, the land can not be held to be State land and as such the respondents have no right to demand price of land or interfere in the suit land and accordingly the decision of Committee as well as demand notice in question be set aside, being without jurisdiction. In the alternative without prejudice to above prayer, appellants have submitted that in case this Tribunal holds that appellants are still liable to pay the price for getting fresh ownership of suit land, then the same be fixed in accordance to price fixed by the State Government for purpose of charging stamp duty on sale documents, which is Rs. 40 lac per kanal. 12. I have heard the learned counsel for the appellants only as respondents have been placed exparte. 13. So for decree passed by learned Additional District Judge Jammu in favour of appellants is concerned it has attained finality, because as per information supplied to this Tribunal by learned counsel for appellants same has not been challenged by respondents. Thus in view of the decree of competent civil court, appellants are held the absolute owners of suit land. Doctrine of re-judicata also prevents this court from re-opening the question of title of appellants over the suit land and take any contrary view in declaring the suit land as State land. The learned civil court has not only declared the appellants as absolute owner of suit land but rejected the stand of respondents that land is Nazool or State land. 14. In the light of the decree supra what is the fate of decision adopted by committee and Demand notice issued by respondents No:3 is required to be examined. 15. The learned civil court has not only declared the appellants as absolute owner of suit land but rejected the stand of respondents that land is Nazool or State land. 14. In the light of the decree supra what is the fate of decision adopted by committee and Demand notice issued by respondents No:3 is required to be examined. 15. In fact the appellants wanted to remain over cautious and not to lose the land at any cost on account of legal snags or technicalities, so despite pendency of their suit with regard to nature of land and title to it, they filed an application for conferment of ownership rights as noticed here-in-above. 16. The learned counsel for the appellants submitted that there was another compulsion for appellants to file said applications and that was the time prescribed for filing application under Roshni Act. According to him, had the appellants lost the civil suit filed by them and by that time time for filing applications would have run out, the there would have been no scope to claim ownership rights under the said Act and appellants would have suffered cllosal pecuniary loss as well as suffered metal agony and torture. 17. In the light of submissions made by learned counsel for appellants I do not find that appellants made any mistake or wanted to play some mischief in filing the applications in question. The appellants also had approached respondents No:2 and 3 with clean hands. The prayer for ownership was made by them without prejudice to the civil suit pending in the civil court, to which respondent No;2 was also one of the defendant. This respondent was also made aware that in case suit is decreed in favour of appellants, any price of land deposited by them shall be refunded to them. 18. In the nature of offer made by appellants the respondents 2 and 3 should have remained at guard and waited for the decision of civil court. Any exercise undertaken otherwise would have turned sour, as has happened now. These respondents should have acted diligently and waited for the result of civil suit, at least. But to the contrary they referred the applications to the Committee, which decided the applications of appellants on 16.7.2007 when by that civil court had decreed the suit in favour of appellants on 30.3.2007. These respondents should have acted diligently and waited for the result of civil suit, at least. But to the contrary they referred the applications to the Committee, which decided the applications of appellants on 16.7.2007 when by that civil court had decreed the suit in favour of appellants on 30.3.2007. This decision was announced in the presence of respondent No:2, who was defendant in the civil suit. 19. Once the appellants had filed conditional applications, the respondents should have deferred their own decision till the disposal of civil case or stopped acting on the applications after the decision of civil court that suit land is not Nazool/State land but the proprietary land of appellants. Not only on account of the decision of the civil court the respondents should have also kept into consideration the judgment of the Honble Supreme Court that Ishri Devi was the absolute owner of the disputed land. In the face of the judgment officils of the State arrayed as respondents here should have desisted from laying hand over the land. 20. As such both the decision of committee in accepting the said applications and sending Demand notice for payment of price fixed by the Committee, are not sustainable in the yes of law. First of all Committee had no jurisdiction to adopt such course, under the Roshni Act, which pre-supposes the existing of land as state land for vesting of ownership rights to the occupants of such land. 2ndly in view of decree of civil court, which has attained finality, the committee or respondents were stopped from declaring or holding the suit land as state/Nazool land, in view of the principles of res-judicata. 21. Coming to the jurisdiction of this Tribunal in entertaining the appeal ld. Counsel for the appellants cited sec.3 of the Special Tribunal Act as well a judgment reported in 2007 JKJ. 22. Having adopted the above view, there is no necessity for this Tribunal to consider the 2nd prayer made in alternative by the appellants. 23. Accordingly this appeal is allowed and decision of committee in accepting the applications in question by fixing some price of suit land to be paid by appellants, is set aside being void ab initio and non est, in the light of the decree passed by civil court on 30.3.2007, declaring appellants as owners of suit land. No cost. 24. 23. Accordingly this appeal is allowed and decision of committee in accepting the applications in question by fixing some price of suit land to be paid by appellants, is set aside being void ab initio and non est, in the light of the decree passed by civil court on 30.3.2007, declaring appellants as owners of suit land. No cost. 24. Record of the court below be sent back. Copy of this order be placed on the other three files, which after due compilation be consigned to record.