JUDGMENT The Civil Second Appeal on hand has been admitted on following substantial questions of law:- “(a). Whether the Civil Court has jurisdiction to try the case? (b). Whether after conferment of occupancy rights the authorities under Evacuees Property Act have jurisdiction to adjudicate rights of the parties.”? 2. The appeal arises in the following background:- One Shri Lahauri, after partition of the Country and occupation of a part of Jammu and Kashmir State by Paki­stan, was displaced from his native place in Pakistan occupied area and migrated to settle in this part of the State. The State Government to reha­bilitate thousands of displaced per­sons like Shri Lahauri constituted a Joint Rehabilitation Board. The Board in exercise of powers under Allotment of Land to Displaced Persons Rules, 1954 (Cabinet Order No. 578 -- C of 1954) allotted land measuring 63 Kanals and 17 Marias situated at Vil­lage Ghore Bains, Tehsil R. S. Pura in favour of Shri Lahauri and four of his other family members namely his wife -- Ananti Devi, Daughters -- Kaushalaya and Kaki and Son -- Shamsher Singh. The allottees, were later conferred Occupancy Rights over the allotted land under Section 3-A of Jammu and Kashmir Agrarian Re­forms Act, 1976. Smt. Kaushalaya and Shri Shamsher Singh passed away and in terms of Para 15- B (2) of Order No. 578-C of 1954, their shares in the allotted land got vested in Shri Lahauri, Smt. Ananti Devi and Smt. Kaki. Shri Lahauri and Smt. Ananti Devi were blessed with one more daughter -- Kanta Devi after they set­tled at Village Ghore Bhains. Smt. Kaki, the only child of Lahauri and Ananti left after demise of their son Shri Shamsher Singh and daughter -Smt. Kaushalaya, on her marriage stayed at her parental house at Ghore Bains. However, after her younger sis­ter Kanta was married, Smt. Kaki shifted to her husband’s house and Kanta stayed back along with her husband’s with the parents. Shri Lahauri passed away and on his death his rights in the aforesaid land were transferred in favour of his wife Ananti Devi. Smt Ananti Devi also passed away, whereafter Smt. Kanta Devi with her husband assumed con­trol over the land initially allotted in favour of Shri Lahauri and his other family members, on their getting set­tled at Village Ghore Bhains, R. S. Pura. 3. Smt Ananti Devi also passed away, whereafter Smt. Kanta Devi with her husband assumed con­trol over the land initially allotted in favour of Shri Lahauri and his other family members, on their getting set­tled at Village Ghore Bhains, R. S. Pura. 3. Smt. Kaki now living with her hus­band at Village Satrian, Tehsil R. S. Pura, soonafter the death of her mother Ananti Devi commenced a Civil Suit in the Court of Munsiff, R. S. Pura against her sister Kanta Devi and brother in law Karan Singh, seeking a declaratory decree, de­claring the will attributed to her mother Ananti Devi executed and claimed to have been registered on 26th April, 1997 as void and inoperative against her right on the ground of it having been procured by fraud, misrepresentation, coercion and undue in­fluence and also because said Smt. Ananti Devi was not competent to execute the will. Smt. Kaki Devi also prayed for a perma­nent injunction decree perpetually re­straining the defendants in the suit from forcibly dispossessing her from the allotted land. 4. The plaintiff’s (Smt Kaki’s) case was that she was the only surviving allottee of the suit land in question, and thus entitled to enjoy all rights including possessory rights in respect of the land allotted to her -and other family members by the Board of Rehabilitation in terms of Government Order No. 578-C of 1954. It was pleaded that Smt. Ananti Devi was old and ailing, and under influence of defendants (Kanta Devi and Karan Singh) and that the will attributed to Smt. Ananti Devi was out­come of fraud, coercion and undue influ­ence practised by the defendants on her. It was averred that the residential house con­structed by the plaintiff and other allottees was in the joint possession of the parties and that the parties as co-sharers, where under an obligation to partition the house by metes and bounds in equal shares. 5. The defendants contested the suit on the ground that Kaki Devi had lost all rights in the allotted land including the suit house on her marriage with Shri Pritam Singh at Satrian, R.S. Pura. The defen­dants pleaded that Smt. Ananti Devi exe­cuted the will dated 26th April, 1997 out of her free will without any force coercion or undue influence. The defendants claimed to have been in exclusive possession of the suit property. 6. The defen­dants pleaded that Smt. Ananti Devi exe­cuted the will dated 26th April, 1997 out of her free will without any force coercion or undue influence. The defendants claimed to have been in exclusive possession of the suit property. 6. The Trial Court on perusal of the pleadings settled following issues. i. Whether Mst. Ananti Devi Wd/o Lahauri Mai was not competent to will away the suit property ? OPP ii. In case issue No. 1 is proved in negative whether the impugned will deed executed by Mst. Ananti Devi in favour of defendants has been procured by fraud, misrepresentation, coercion or undue influence ?OPP iii. Whether the plaintiff alongwith defendants is in join possession of the suit property ?OPP iv. Whether the defendants are dispossessing the plaintiff from the suit property? OPP v. Relief. 7. The Trial Court on a detailed discus­sion of the pleadings and the evidence brought on the file and after survey of case law on the subject held Smt. Ananti Devi not to have been competent to “will away” the allotted land and the residential house and to execute will dated 26th April, 1997 in favour of defendant Smt. Kanta Devi. It was further held that execution of will dated 26th April, 1997 by Smt. Ananti Devi was not free from suspicion. The Trial Court held the plaintiff to be in joint pos­session of the suit house. However, the plaintiff was held not to be in possession of the allotted land other than land under­neath and appurtenant to the house. The Trial Court proceeded to decree the suit and declared the will dated 26th April, 1997 attributed to Smt. Ananti Devi as null and void. The Trial Court allowed the prayer for partition of the suit house and granted a preliminary decree for partition of the suit house by metes and bounds in equal shares between the plaintiff and her sister -- defendant No. 2 in the suit. 8. The Trial Court judgment and decree dated 09.12.2006, was questioned both by the plaintiffs and defendants, in Civil First Appeals in the Court of 2nd Additional District Judge, Jammu. The appeal filed by plaintiff came to be registered as 68/Ap-peal, while as the appeal filed by the defen­dants was registered as 81/Appeal. 9. The Appellate Court disposed of both the appeals vide common Judgment dated 24th December, 2009. The appeal filed by plaintiff came to be registered as 68/Ap-peal, while as the appeal filed by the defen­dants was registered as 81/Appeal. 9. The Appellate Court disposed of both the appeals vide common Judgment dated 24th December, 2009. The Appellate Court maintained and upheld the trial Court de­cree as regards partition of the residential house by metes and bounds in equal shares, holding that Smt Kaki Devi and Kanta Devi were only surviving legal heirs of Lahauri, co-owners of the house and enti­tled to get it partitioned. The Appellate Court as regards the land allotted in favour of Lahauri and others held the Civil Court to have no jurisdiction to entertain and deal with the matter. The Appellate Court no­ticing that allotment was governed by Al­lotment of Land to Displaced Persons Rules 1954, made in exercise of powers under section 39 of the Evacuees (Administration of Property) Act, held Section 31 (iii) of the Act to bar jurisdiction of the Civil Court to deal with the controversies raised in the civil suit. The Appellate Court was of the opinion that in terms of Section 10 of the Act, the Custodian Evacuees Properties is vested with the power to vary or cancel lease or allotment made under the Act or Rules made thereunder. The Appellate Court, accordingly, allowed the appeal and set aside the finding “eturned by the trial Court as regards allotted land. The parties were given liberty to approach the Compe­tent Authority under the Act to get their grievances redressed. 10. Kanta Devi and her husband -- ap­pellants in Civil 1st Appeal registered as 8 I/Appeal, have filed Civil Second Appeal on hand, assailing the First Appellate Court Judgment dated 24th December, 2009, on the grounds taken up in the ap­peal. The appellants insist that the respon­dent having left parental house was not entitled to any share in the residential house left by her father and in exclusive possession of the appellants. The appel­lants further questioned the finding re­turned by the 1st Appellate Court on authenticity of the will claimed to have been executed by Smt. Kanta Devi in fa­vour of appellants. The Appellate Court finding that the matter fell within jurisdic­tion of Authorities under Evacuees (Ad­ministration of Property) Act is also disputed by the appellants. The appel­lants further questioned the finding re­turned by the 1st Appellate Court on authenticity of the will claimed to have been executed by Smt. Kanta Devi in fa­vour of appellants. The Appellate Court finding that the matter fell within jurisdic­tion of Authorities under Evacuees (Ad­ministration of Property) Act is also disputed by the appellants. It is pleaded that once occupancy rights under Section 3-A of Agrarian Reforms Act were con­ferred on Kanta Devi, the role, if any, of Authorities under Evacuees (Administra­tion of Property) Act came to an end. The appellants on the strength of grounds urged in the memorandum of appeal seek setting aside of the judgment and decree passed by Trial Court and the First Appel­late Court and dismissal of the suit com­menced by the respondents. 11. I have.gone through the memoran­dum of appeal and the record received from Courts below. I have heard counsel for the parties, at length. 12. The subject matter of the civil suit between the parties and the proceedings emanating there from admittedly, is evac­uee property within the meaning of Section 2 (d) of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006 (hereinafter called as Evacuees Property Act). The suit property had been allotted to the father of respondent and his family members including the respondent under Allotment of Land to Displaced Per­sons Rules 1954 (Cabinet Order No. 578-C of 1959 dated 07.05.1954). The Rules have been made in exercise of powers under Sec­tion 39 (2)(e),(i) and (g) of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006. Section 31 of Evacuees Property Act excludes/bars, ju­risdiction of Civil Courts as regards certain matters identified therein. It would be ad­vantageous to reproduce hereunder Sec­tion 31 of Evacuees Property Act; “Jurisdiction of Civil Courts barred in certain matters (1) Save as otherwise expressly pro­vided in this Act, no civil Court shall have jurisdiction- (i) to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property; or (ii) to question the legality of any action taken by the Custodian General or the Custodian under this Act, (iii) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine.” 13. The first Appellate Court has taken the view that jurisdiction of Civil Court is barred as regards the question raised in the suit to the extent they relate to entitlement of the parties to the suit land and get the suit land partitioned by metes and bounds. Before making an effort to find answers to the substantive question of law on which the present Civil 2nd Appeal has been ad­mitted, it would be appropriate to recapit­ulate and revisit the controversy involved in the suit. The respondent -- Kaki Devi was born sometime before 7th May, 1954 and accompanied her parents from the area of the State presently under occupation of Pakistan and settled in village Ghore Bains, Tehsil R. S. Pura. The respondent was, thus, one of the allottees of the land in question allotted by Joint Rehabilitation Board in exercise of powers under Allot­ment of Land to Displaced Persons Rules 1954. It is pertinent to point out that in terms of afore-stated Rules, the land is allotted to a family and not to the head of the family. In terms of Explanation to Rule 2, “family” includes husband, wife, unmar­ried children, dependent parents and other relatives actually living together. The re­spondent -- Kaki Devi born sometime be­fore 7th May, 1954, is the only surviving member of the family that migrated from Pakistan occupied territory and settled in Ghore Bhains, Ranbir Singh Pora, Jammu. In other words, the respondent is the only surviving allottee of the land in question. The respondent’s case before the Trial Court has been that she is entitled to one-half of the land allotted in her favour and other family members, on the ground that she is the only original surviving allottee and, thus, entitled to share the suit land in equal shares with her sister -- Kanta Devi, who became member of the family by birth - appellant No. 1 herein. 14. The respondent’s claim is opposed by the appellants on the ground that the re­spondent having married and settled at a place other than her village, she has lost all rights in the suit land in terms of Rule 15(b), Allotment of Land to Displaced Per­sons Rules 1954 incorporated vide SRO 328 dated 23.06.1969. It would be advanta­geous to reproduce hereunder the relevant part of the Rules 15(b)(2). It would be advanta­geous to reproduce hereunder the relevant part of the Rules 15(b)(2). It reads; “If an allottee dies, his interest in the allotted land shall devolve on other members of his family in whose favour allotment of land has been originally made or regularized under these rules and on those who may have become members of the family by way of mar­riage, birth or adoption after such al­lotment, excluding those who may have died earlier or may have left the family on account of marriage or adop­tion:” 15. Acloser look at Rule 15 (b) Sub-Rule-2 reveals that where an allottee dies, his interest in the allotted land is to devolve as under; (a) to his co-allottees, i.e. other member of his family in whose favour, allotment of land has been originally made or regularized under Allotment of Land to Displaced Persons Rules 1954 and, (b) the members of the family who though not original allottees but have become members of the family after the land was allotted by marriage, birth or adoption. 16. However, a member of the family is excluded from survivor-ship who on ac­count of marriage or adoption has left the family before the death of the allottee whose interest in the allotted land is to devolve on the original allottees and newly added members of the family as the case may be. 17. The controversy involved in the liti­gation between the parties gives rise to following questions; (i) Whether Kaki Devi as an original allottee is entitled to a share in the allotted land in her own right irrespective of her entitlement to succeed to the part of the allotted land held by her mother, Smt. Ananti Devi, (ii) Whether Kaki Devi had a right to succeed along with her mother, Ananti Devi and sister Kanta Devi to the part of the allotted land held by her after Shri Lahauri in terms of Rule 15(b)(2), Allotment of Land to Displaced Persons Rules 1954 in equal shares, (iii) Whether Kaki Devi and Kanta Devi are entitled to succeed by survivor-ship to the part of the allotted land held by Ananti Devi on her death, (iv) Whether application of exclusion clause whereby, a family member who by marriage, birth or adoption has left the family before death of her allottee, is restricted to the newly added family member or extends also to the original allottee. 18. 18. The fate of rival claim set up by two sisters to the allotted land, hinges on an­swer to the above questions. The question remains whether the Civil Court in terms of Section 31 of the Evacuee Property Act jurisdiction of Civil Court would be barred to deal with the said questions and the controversies between the parties. 19. Section 9 Code of Civil Procedure 1977 confers jurisdiction on the Civil Court to try all suits of the civil nature excepting suits of which their cognizance is either expressly or impliedly barred. It follows that ordinarily a suit of civil nature is to be tried by a Civil Court and a party question­ing jurisdiction has to substantiate that cognizance of the civil suit is expressly or impliedly barred. 20. It is well settled law that exclusion of the jurisdiction of Civil Court is not to be readily inferred. Whenever reference is made to an Act or any of its provisions to plead exclusion of jurisdiction, the Court is not only required to see whether such pro­vision does as a matter of fact, expressly or impliedly bar the jurisdiction of the Civil Court but also to satisfy itself whether under the scheme of the Act, there is a remedy available to the person who though not competent to commence a civil suit made nonetheless, fall back upon remedy so provided under the Act. The provisions for a remedy under the Act is bound to strengthen the case set up by a person questioning jurisdiction of Civil Court to deal with the matter that the exclusion to the jurisdiction of the Civil Court is in­tended under the Act. The Court, it needs to be emphasized would, as consistently laid down by the authoritative Judicial pro­nouncement, lean in favour of an interpre­tation upholding jurisdiction of the Civil Court. 21. In the present case, the controversy between the parties does not relate to sta­tus of the land in question as evacuee prop­erty or claim the right of evacuee in the property. It does not also relate to the le­gality of any action taken by the Custodian General or the Custodian under the Evac­uees Property Act. It, nonetheless, is to be examined whether the Custodian General or the Custodian is empowered under the Evacuees Property Act to deal and decide the questions raised in suit between the parties and spelt out herein above. It, nonetheless, is to be examined whether the Custodian General or the Custodian is empowered under the Evacuees Property Act to deal and decide the questions raised in suit between the parties and spelt out herein above. In other words, while the dispute between the parties admittedly does not fall with Section 31(1), (i) and (ii), it still is to be examined whether the matter falls within Section 31(1), (iii), so as to bar and exclude jurisdic­tion of the Civil Court. The controversy as already pointed out revolves around rival claims of the allottees/persons. claiming under allottees of the evacuee property al­lotted under Allotment of Land to Dis­placed Persons Rules 1954 framed in exercise of power under Section 39(2)(e),(i) and (g) of the Evacuees Property Act. Sec­tion 4 of the Evacuees Property Act empow­ers the Government to appoint one or more Custodians of the evacuee property to dis­charge the duties imposed under the Act. In terms of Section 5 of the Evacuees Prop­erty Act, subject matter of the suit is to be deemed to have vested in the Custodian. The Custodian, in terms of Section 7, is empowered to take possession of evacuee property vested in him and deal with the claims, if any, set up by the interested persons in the evacuee property. Section 9 enumerates the powers and duties of the Custodian, Section 9(2)(1) empowers the Custodian to allot in accordance with any rules or transfer in any manner whatso­ever any evacuee property, notwithstand­ing anything contained in any law or agreement to the contrary relating thereto. Section 9 (2)(11) empowers the Custodian to allow any displaced person to raise con­struction on the allotted land and in terms of Section 9-A, no construction can be raised on evacuee property without sanc­tion in writing of the Custodian. Section 10 empowers the Custodian to cancel any al­lotment or terminate any lease or amend the terms of any such lease or of any agree­ment on which any evacuee property is held or occupied by any person. The Custodian General under Section 30 (1)(b) is conferred power and given jurisdiction to hear appeal against the order made by the Custodian under provisions detailed under Section 30(1) of the Evacuees Property Act. The Custodian General under Section 30 (1)(b) is conferred power and given jurisdiction to hear appeal against the order made by the Custodian under provisions detailed under Section 30(1) of the Evacuees Property Act. The Custodian General is also empowered under Section 30(4), either on his own mo­tion or on application made to him send for the record of any proceeding under this Act whether pending or disposed of to satisfy himself as to the legality or propriety of any order passed in such proceeding and to pass such order in relation thereto as he thinks fit. 22. The above brief survey of the powers of Custodian General and Custodian under the scheme laid down in Evacuees Property Act, would reveal that the controversy be­tween the parties and the questions arising out of such controversy are to fall within the ambit and scope of powers conferred on the Custodian. The nature of controversy involved creates bar to jurisdiction of the Civil Court in terms of Section 3l(1)(i) and (ii) of the Evacuees Property Act to deal with it. The Evacuees Property Act does not only clothe the Custodian with the power to deal with and decide inter-se claims of allottee of the land allotted under Allot­ment of Land to Displaced Persons Rules 1954 but provides the forum to an allottee or a person claiming under him aggrieved with the order of the Custodian to question such order in a appeal or revision. 23. So viewed, there is no scope for any disagreement with the 1st Appellate Court that the suit as regards entitlement of the parties to the allotted land and their right to get it partitioned by metes and bounds falls within the ambit of the powers of Cus­todian under Evacuees Property Act and jurisdiction of the Civil Court is barred in terms of Section 31 of the Evacuees Prop­erty Act. 24. The fact that in terms of Section 3-A of the Jammu and Kashmir Agrarian Re­forms act, 1976, “Occupancy Tenancy Rights” have been conferred on the dis­placed persons cultivating evacuees’ land personally and that such displaced persons are given right to transfer of occupancy tenancy by sale, mortgage or gift, does not change complexion of the matter. 24. The fact that in terms of Section 3-A of the Jammu and Kashmir Agrarian Re­forms act, 1976, “Occupancy Tenancy Rights” have been conferred on the dis­placed persons cultivating evacuees’ land personally and that such displaced persons are given right to transfer of occupancy tenancy by sale, mortgage or gift, does not change complexion of the matter. Section 3-A of the Agrarian Reforms Act, 1976 makes use of the “occupancy tenancy” only to identify the status and rights of dis­placed persons granted, land under the Al­lotment of Land to Displaced Persons Rules 1954 and the Evacuees Property Act as also the Rules made there under continue to govern all the matters relating to end, flow­ing out of allotment of the land to the dis­placed persons under the Allotment of Land to Displaced Persons Rules 1954. In terms of Section 3-A of the Agrarian Re­forms Act, whereby the displaced persons cultivating evacuees’ land personally are to be deemed to be occupancy tenants and recorded as such, does not divest the Cus­todian in whom evacuee property is vested in terms of Section 5 of the Evacuees Prop­erty Act of such property. It is pertinent to point out that in terms of Section 3 of the Agrarian Reforms Act, 1976, the applica­tion of Agrarian Reforms Act, 1976 to the evacuees land is restricted to Sections 4(2)(c), 5, 7,13,14 and 26(3). It is expressly provided that the provisions of the Agrar­ian Reforms Act, 1976 would not confer any ownership rights upon a displaced person or other person in any evacuees’ land or affect or interfere with the rights of posses­sion or legal obligation of a displaced or other person conferred or imposed by or under any law, rule or order, for the time being in force, in respect of such land. The conferment of Occupancy Tenancy Rights on displaced person in terms of Section 3-A of the Agrarian Reforms Act, 1976, does not divest the authorities under Evacuees Property Act of the jurisdiction to adjudic­ate rights of the allottees -- parties in the present case. For the reasons discussed above, the substantial questions of law on which the appeal was admitted are answered in neg­ative. Resultantly the judgment of 1st Ap­pellate Court dated 24th December, 2009 registered as 8 I/Appeal is upheld and the Civil Second Appeal is dismissed.