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2020 DIGILAW 511 (JK)

Sadhu Singh v. Devinder Kour

2020-09-28

VINOD CHATTERJI KOUL

body2020
ORDER This appeal has been filed against the judgment and decree dated 20.11.2019 passed by leaned District Judge, Poonch in appeal titled Devinder Kour and others vs. Sadhu Singh, whereby the judgment and decree decreeing the suit passed by learned Sub-Judge, Poonch has been set aside and the suit dismissed after holding that the suit of the plaintiff (appellant herein) was not maintainable for lack of jurisdiction in view of the provisions contained in Section 31 of the Evacuee (Administration of property Act), Svt 2006 (for brevity “the Act”) 2. Plaintiff/appellant filed a suit before the Sub Judge, Poonch seeking declaration to the effect that plaintiff is owner in joint possession over the land measuring 16 Kanals falling in Khasra N. 697 situated at Dhara Dulla, Poonch along with defendant with a consequential relief of permanent/prohibitory injunction restraining the defendant from alienating or transferring the above said land to any person in any manner. 3. Before the trial court objection was raised with regard to the jurisdiction of the civil court and it was pleaded that in view of the provisions of Section 31 of the Act the jurisdiction of the civil court is barred. The trial court rejected this plea holding the suit maintainable and accordingly decreed. 4. The appeal against the said order was allowed by the learned District Judge, Poonch after holding that Section 31 of the Act bars the jurisdiction of the civil court and the same was triable by the authority under the Act. This order holding that the civil courts jurisdiction is barred is under challenge in this appeal and as per the appellant substantial question of law are involved in this case. In the appeal it is pleaded that the relief claimed was beyond jurisdiction of the authority under the Act and the bar created under Section 31 was not applicable to the case in question and the appellate court wrongly relied upon the provisions of law and decided the question of jurisdiction and the findings of the appellate court that the jurisdiction of the civil court is barred is wrong and illegal. 5. Section 31 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 reads as under:- 31. 5. Section 31 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 reads as under:- 31. 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. 6. As per the appellant, on the basis of the substantial questions of law raised in this appeal, the appeal is required to be admitted. 7. I have considered the contentions raised by the learned counsel for the appellant and Mr. M. I. Sherkhan, learned counsel appearing for the caveator/respondents and have also gone through the record of the file. 8. Section 100 of the Code of Civil procedure provides as under:- “100. Second appeal.—(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.” 9. In Sir Chunilal V. Mehta And Sons, Ltd v. The Century Spinning and others, 1962 SC 1314, the Constitutional Bench of the Hon’ble Supreme Court has laid down the test to determine whether the question is substantial question of law or not, which is as under:- “The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general. principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.” 10. In the memorandum of appeal the appellant had set out the following question as substantial questions of law and according to the appellant the said substantial questions of law are involved in this appeal. “(1) Whether Section 31 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 bars the jurisdiction of civil court to adjudicate any dispute between the co-sharers in the land allotted under the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006? (2) Whether the suit for declaration of joint ownership and joint possession of land allotted under the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006, is maintainable on the part of a person claiming to be a co-sharer of the allotted land? (3) Whether an occupancy tenant recorded under Section 3-A of the Agrarian Reforms Act, 1976 can file a suit for declaration claiming to be owner in joint possession of the land with the consequential relief of permanent prohibitory injunction restraining the other co-sharers from alienating the land? (4) Whether under the provisions of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006, it falls within the jurisdiction of Custodian or Custodian General to restrain a co-sharer of the allotted land from alienating the rights as an occupancy tenant? (4) Whether under the provisions of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006, it falls within the jurisdiction of Custodian or Custodian General to restrain a co-sharer of the allotted land from alienating the rights as an occupancy tenant? (5) Whether the judgment passed by the learned Single Judge of the High Court in case titled Kanta Devi and Anr. v. Kaki Devi, 2012 KLJ 144 is per incuriam, hence not binding? (6) Whether the rights of occupancy tenant devolve upon the mail lineal descendant irrespective of the will executed by the allottee? 11. Mohan Singh was the brother of the appellant. He died during the pendency of the suit and respondents are his legal representatives being, wife, sons and daughter. Sh. Gokal Singh was father of the appellant, he had two more sons, namely, S.Mohan Singh and Balbir Singh. He was a refugee from Pakistan and was allotted land in khasra No. 697 min Doyam. He executed a will in 1988 in favour of his three sons. Balbir Singh died issueless, he was not married. After the death of their father mutation was attested in favour of the appellant and his brother, S. Mohan Singh, but the land was not divided. 12. Appellant filed a suit before the trial court alleging that his brother S. Mohan Singh wanted to somehow deny the right of the appellant and he is intending to alienate the same to third party. The suit was decreed by the trial court. In the suit the dispute was between the two brothers in respect of the land which admittedly is evacuees land in respect of which allotment was made in the name of their father who executed will and the mutation had been attested in favour of the appellant and the deceased S. Mohan Singh. The dispute is inter se and relief claimed is declaration that they are co-sharers and further decree has been sought to restrain the defendants (respondents herein) from alienating the property. 13. As per the appellate court, the jurisdiction is barred in view of the provisions contained in clause 3 sub section (1) of Section 31 of the Act. 14. The dispute is inter se and relief claimed is declaration that they are co-sharers and further decree has been sought to restrain the defendants (respondents herein) from alienating the property. 13. As per the appellate court, the jurisdiction is barred in view of the provisions contained in clause 3 sub section (1) of Section 31 of the Act. 14. Now the question arises as to whether the dispute raised and the relief claimed by the plaintiff/appellant is one in respect of which Custodian General or Custodian is empowered under this Act to determine the dispute and grant the relief. 15. After having taken into consideration the provisions as contained in Section 31 of the Act, the dispute raised in the suit, grounds taken in the appeal and the findings returned by the trial court and the appellate court, I am of the opinion that the following substantial questions of law are involved in this case on which this appeal is required to be admitted. (1) Whether Section 31 of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 bars the jurisdiction of the civil court to adjudicate any dispute of the co-sharer in the land allotted under the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006? (2) Whether under the provisions of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt. 2006 which falls within the jurisdiction of Custodian General or Custodian to restrain a co-sharer of the allotted land from alienating the right as an occupant tenant? 16. Therefore, this appeal is admitted on the aforementioned substantial questions of law. 17. Issue notice to the respondents. Mr. M. I. Sherkhan, Advocate accepts notice on behalf of the respondents. 18. Call for the record. 19. In the meanwhile, operation of the judgment and decree passed by the appellate Court dated 20.11.2019, shall stay and the parties shall maintain status quo. 20. Cav. No. 5395/2019 stands discharged. 21. List again on 18.12.2020.