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2012 DIGILAW 169 (JK)

Daya Ram v. Custodian EP, Jammu

2012-04-17

Sanjay Gupta

body2012
1. By virtue of this order, I am disposing of two revision petitions filed by sons of Late Jameet Singh, against the order of Custodian Jammu dated 16-08-2007. 2. Brief facts of the case is that one Jameet Singh was allotted land measuring, 09 kanals under khasra No.284/17, 3kanals 18marlas under khasra No.26, 9 marlas under khasra No.26 min, 5 kanals 07 marlas under khasra No.330/62, 1kanal 11 marlas under khasra No.332/62 min, 1kanal 4 marlas under khasra No.266/68 and 5 kanals 2 marlas under khasra No.246/153/98 total land 26 kanals 11 marlas,situated at village Khamb, Tehsil R.S.pur in terms of Govt.Order No. 578-C of 1954 as local allottee. 3. The said Jameet Singh died and his one son Amar Nath, petitioner herein,filed a petition before Custodian E P, Jammu,for partition of land mentioned above. On 10-04-07 Custodian, Jammu passed an order, thereby observing that, partition of land can be adjudicated upon, by Assistant Custodian (Tehsildar concerned) and accordingly, he entrusted the case to Asstt. Custodian R.S.Pura. 4. In compliance to this order, Asstt. Custodian, on 16-08-2007 passed an order in which he held that, land in question was allotted to deceased Jameet Singh by Custodian. The said Jameet Raj has died and after his death both Amar Nath and Daya have been appointed as head of family on 02-11-05. But land in question is in possession of one son namely Daya Ram. Accordingly the Assistant Custodian R.S.Pura ordered for partition of land in equal share between both brothers, in terms of SRO 739 by virtue of which RULE 15-B was inserted in, Cabinet order No;578-C of 1954. 5. This order was challenged by Daya Ram before Custodian EP, Jammu on various grounds. Custodian EP, Jammu on 31-01-08 disposed of the revision petition and passed the following orders:- "After going through the records available on the case file and the arguments put forth by the counsel for the parties. 5. This order was challenged by Daya Ram before Custodian EP, Jammu on various grounds. Custodian EP, Jammu on 31-01-08 disposed of the revision petition and passed the following orders:- "After going through the records available on the case file and the arguments put forth by the counsel for the parties. I came to conclusion that the land measuring 26 kls 11mls is in physical possession of the petitioner who is cultivating the said land, as such, can be allowed to retain one part of the land but against one hundred rupees per kanal per annum and the remaining part of land is to be resumed by the department as the respondent has already relinquished the possession of land and is putting up at present at Bakshinagar, Jammu, therefore, can mis-manage the property by way of alienation etc. As such, the land in question to the extent of his share i.e. = (one half) be retained by the department in order to manage and administer it departmentally. Assistant Custodian concerned be intimated accordingly so that the order passed is implemented in letter and spirit besides the records relating to court below be sent back and file be consigned to records. Bare perusal of this order, it is evident, that while deciding matter, court has passed two directions, one is that Daya ram shall retain = of land and secondly, other half of land shall be resumed by custodian for management LC for Daya Ram has challenged this order on the grounds that, whole of land is in his possession. That court below has passed order on pleas, which were not raised before him. That civil court has restrained his brother from forcibly taking possession of land from petitioner. That respondent Amar Nath his brother is not residing in same village. Whereas counsel for Amar Nath has challenged the order on the grounds, that every members of family is entitled to his share in land allotted in term of govt. order no 578-c of 1954. 6. I have given my thoughtful consideration to whole aspects of matter and gone through relevant law. 7. Decree of Civil Court dt. 19.10.2007, passed by Munsiff R.s.Pura reveals that, petitioner Daya Ram filed a suit for permanent prohibitory injunction thereby restraining his brother Amar Nath from forcibly dispossessing him from the land measuring 9 kanals under Kh. 6. I have given my thoughtful consideration to whole aspects of matter and gone through relevant law. 7. Decree of Civil Court dt. 19.10.2007, passed by Munsiff R.s.Pura reveals that, petitioner Daya Ram filed a suit for permanent prohibitory injunction thereby restraining his brother Amar Nath from forcibly dispossessing him from the land measuring 9 kanals under Kh. No. 282/17 min, 3 kanal 18 marlas under Kh.no. 26,5 Kanals 7 marlas under Kh. No. 330/62, I Kanal 04 marlas under Kh.No. 216/68 and 14 marlas under Kh.No. 218/69. In this case Amar Nath admitted the claim of plaintiff thereon and accordingly Civil Court passed a consent Decree,thereby restraining Amar Nath from dispossessing Daya Ram from the land without adopting due course of law. This decree has been passed after the Asst. Custodian passed order of partition of land in term of rule 15-B of cabinet order 578-C of 1954, on 16.8.2007. 8. Cabinet order no. 578-C of 1954 was made for allotment of land to displaced person. This order prescribes procedure for allotment of land to displaced person as per family strength. Vide SRO 328 DATED 23. 6.1969 rule 15-B was inserted for procedure regarding survivorship. It reads as under:- 15-B. Procedure regarding Survivorship (1) -- -- -- -- -- (2) if an allottee dies, his interest in the allotted and 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. -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- A plain reading of this provision, it is evident that, if a allottee, who has been allotted land in term of Cabinet Order 578-C of 1954, dies, his interest in the allotted land shall devolve on the members of his family, in whose favour of allotment of land has originally been made or regularized under these rules and on those also who may have become members of family by way of marriage, birth or adoption after such allotment. 9. 9. In present case, it is admitted fact that deceased Jameet Singh, father of petitioners, was allotted land vide cabinet order no 578-c of 1954. It is also a fact that, he was survived by two sons, petitioners herein. As per rule 15-B mentioned above, both sons of deceased are equally entitle for land in equal shares. Mere declaring a member as head of family and retaining possession in exclusion to other members, does entitle him to inherit whole land. Further, if a member of family reside at other place than, where land is situated or if a member temporarily shifted to another place and lives there, it does not disqualify him from getting benefit under rule 15-B of cabinet order 578-c of 1954. 10. In view of what has been discussed above, I am of the considered opinion that order of Court below by virtue of which half of the land has been directed to be retained by evacuee department. is without jurisdiction. Order of Asst. Custodian dt. 16.8.2007 is correct as it has been passed in accordance with rule 15-B of Cabinet Order 578-C of 1954. However Asst. custodian is directed to consider the decision of civil decree while executing his order dt.16.8.2007. 11. Both the revision petitions are accordingly disposed off. A copy of order is placed in both the files. Record of Court below is sent back along with this Order. 12. This file consigned to records after due completion.