Khurshid Ahmad and others vs Mohd Bashir Ahmad and others

Mian Jalaluddin, J.—This is a revision petition and is directed against the orders dated 10-11-1969 and 15-12-1969 passed by the District

Judge Srinagar assuming jurisdiction in proceedings under Succession (Property Protection) Act of 1977 (hereinafter called 'the Act') and

appointing a curator u/s 4 of the Act.

On an application made by the present respondents under Sections 1 and 3 of the Act that Kh. Mohd. Maqbool the deceased had left huge

movable and immovable property and that the respondents were his heirs and that the present petitioners before this court were misappropriating

the property changing its condition and intending to forcibly deprive the respondents from enjoying the fruits of inheritance, the learned District

Judge after recording his satisfaction that mere were strong grounds for proceeding and determining the rights summarily under the Act issued

notices to the petitioners, and with a view to preserve the property from being misappropriated appointed a curator u/s 4 of the Act. The

petitioners appeared before the District Judge and by means of a petition challenged the jurisdiction of the court to take cognizance of the matter.

The application was disposed of by the learned District Judge on 15-12-1969. The court rejected the request and it held that it had assumed

jurisdiction after being satisfied of the existence of the circumstances and requirements envisaged u/s 3 of the Act. Aggrieved by these two orders

the respondents in the main petition have come up in revision before this court.

A preliminary objection has been raised by Mr. S.L. Kaul counsel for the respondents in the revision petition that no revision is competent

inasmuch as the Judge of the court of the District who has to take cognizance of an application u/s 1 of the Act is not sitting as the Presiding Officer

of a ' civil court but he functions only as a persona designata. Where a person discharges his functions as persona designata his orders are not

amenable to the revisional jurisdiction of the High Court u/s 115 of the Civil Procedure Code.

In my opinion there is no merit in this contention because there is no warrant for the proposition enunciated that a Judge of the District while

discharging his functions u/s 1 of the Act is only a persona designate and not the court. The expression ""the Judge of the Court of District"" used in

Section 1 means that it is the District Judge who is to act and is empowered to assume jurisdiction for the purposes of this Act. 'Judge' is defined in

the CPC as the Presiding Officer of a Civil Court; no other connotation can be attached to this word. Moreover, S. 18 of the Act is clear. It

provides that the decision of the Judge in these proceedings shall be final not subject to any appeal or review. It implies that the legislature did not

intend to give right of appeal or of review to the aggrieved person. Were the Judge to act as a persona designate in these proceedings as the

argument is then his order ipso facto would not be subject to an appeal or review and in that event there was no necessity for the legislature to

have incorporated the provisions in Section 18 relating to appeal and review. A similar point arose for consideration in AIR 1938 753 (Lahore) .

The learned Judge decided the point by holding that although no appeal or review is allowed from an order in summary proceedings by a District

Judge yet there is nothing in the section or the Act which takes away the right of revision by the High Court. By virtue of Section 141 of CPC the

procedure is that the Code, in absence of a provision to the contrary, governs these proceedings. The learned Judge was unable to see as to why

revision should not be competent u/s 115, C.P.C. A Full Bench of the Punjab Chief Court in 66 Pun Re 1882 (FB) also came to the same

conclusion. Moreover, the scheme of the Act shows that the Judge has to adjudicate upon the civil rights of the parties. Although the scope of

enquiry in these proceedings is limited for a definite purpose yet it cannot be said that an order passed by him undoubtedly affects the civil rights of

the parties. Therefore to say that the Judge acts only as a persona designata and not as a Judge of the court is meaningless. I, therefore, overrule

this preliminary objection.

On merits it is argued that the District Judge should not have initiated any action on the application made by the petitioners in that case because

that application did not disclose the facts that would give jurisdiction to the court to proceed thereon. According to Sections 1 and 3 the Judge

taking cognizance of the application must be satisfied and he must record reasons for his believing that (1) the applicants' possession is threatened

or that his actual possession has been disturbed, (2) that the party taking forcible means for seizing possession of the property has no lawful title;

(3) that the applicant is really entitled to the property, and that the application is made bona fide. In the present case no such ingredients are found

therefore the application, it is contended, is misconceived.

As against this it is pointed out by the learned counsel for the respondents that the learned Judge has recorded his reasons of belief to proceed

with the application and he has in so many words observed that he is satisfied with regard to the existence of the circumstances and the facts of the

case which would warrant the taking of an action under this Act.

It would indeed be profitable to lay down certain guidelines for the courts below as to in what circumstances a Judge of a District should assume

jurisdiction under the provisions of the Act. The Act postulates that it is only when a person in possession of the property of the deceased is

dispossessed by another person having no lawful title thereto or it is apprehended that he will be disposed, and that the person making the

application is really entitled to the property and the application is made bona fide, then the Judge of a District can assume jurisdiction and can

initiate proceedings under this Act. The jurisdiction of the Judge is founded upon his belief of the existence of the above mentioned conditions and

not otherwise. He must record the reasons and his firm belief in regard to the existence of the circumstances that would warrant the initiation of the

action by him under Sections 1 and 3 of the Act. In the instant case it appears that the Judge has no doubt recorded his belief with regard to the

existence of the facts and circumstances but it would appear that his order is not express and explicit in this behalf. I am, however, given to

understand that a civil suit relating to the property in dispute has been instituted and is pending before a Bench of this Hon'ble Court. In my opinion

no useful purpose will be served by giving a direction to the District Judge to proceed in a certain way in the application before him. It would be

meaningless to hold parallel enquiries one by the District Judge in the application and the other by the Civil Court seized of the regular case.

Learned counsel for the respondents has submitted that his clients would have no objection if the proceedings pending before the District Judge

are also sent to the Civil Court where the suit is pending in order to avoid any conflict of decision.

On a consideration of the matter that the jurisdiction of the District Judge in these proceedings is limited it would, in my opinion, be quite

appropriate to ask the District Judge to stay his hands in these proceedings and send the entire case record to the Hon'ble Bench where the regular

suit is pending. All orders passed by the District Judge will remain subject to the orders passed by the Hon'ble Bench of this Court.

With these observations the revision petition is otherwise disposed of.