Ravinder Kumar Koul And Another vs State Th. Div. Comm. Srinagar And Others

The petitioners in the instant writ petition prayed for the following reliefs:-

‘1. To command the respondent No.1 (hereinafter called Divisional Commissioner, Srinagar) not to grant any permission of sale

regarding the suit property falling under Khewat No. 5 Khata No. 9 falling under survey No. 552 measuring 6 Kanals & 4 Marlas, Survey

No. 567/1 measuring 1 Kanal 6 Marlas, survey No. 632 measuring 6 Kanals 12 Marlas, survey No. 74 measuring 26 Kanals 16 Marlas,

Survey No. 405 measuring 10 Kanals ( Abi Awal).

Khewat No. 6 Khata No. 11

Measuring 3 Kanals 3 Marlas falling under survey No. 507 (Abi Awal), 3 Kanals 4 Marlas ( Bagh Abi) in survey NO. 567, 13 Kanals 12

Marlas (Abi Awal) falling in Survey No. 609, 9 Kanals ( Bagh Abi) falling unde r survey No. 628, 18 Kanals 14 Marlas ( Bagh Awal) falling

under Survey No. 566, 7 Kanals 11 Marlas falling under survey No. 467/1.

Khewat No.5 Khata No. 17.

3 Kanals 4 Marlas falling under survey No. 552/3, 5 Marlas under survey No. 466/1, 13 Marlas under survey No. 567/1, 3 marlas under

survey No. 632, 13 Kanals under survey No. 73, 5 Kanals under survey No. 305, 1 Kanal 10 Marlas under survey No. 507, 1 Kanal 11

Marlas under survey No. 567, 6 Kanals 13 Marlas under survey No. 609 and 4 Kanals 8 Marlas under survey No. 628 situated at Murand

Dharbagh, Harwan, Tehsil North Hazratbal, District Srinagar on the basis of sale document which have been executed by one of the

shareholder without the consent of the petitioners in favour of unknown and undisclosed persons with a simple motive to grab the share of

the petitioners which they have inherited after the death of their mother.

With a further prayer to command the respondent No. 4 (hereinafter called the Deputy Commissioner, Srinagar) to evict the illegal,

forcible, unauthorized occupants under Section 4 & 5 of the Jammu and Kashmir Migrants Immovable Property (Preservation, Protection

and Restraint on Distress Act) 1997 regarding the part of the suit property which is shared by the petitioners falling under

Khewat No. 5 Khata No. 9

Falling under survey No. 552 measuring 6 Kanals & 4 Marlas, survey No. 567/1 measuring 1 Kanal 6 Marlas, survey No. 632 measuring 6

Kanals 12 Marlas, survey No. 74 measuring 26 Kanals 16 Marlas, survey No. 405 measuring 10 Kanals (Abi Awal).

Khewat No. 6 Khata No.11

Measuring 3 Kanals 3 Marlas falling under survey No. 507 (Abi Awal), 3 Kanals 4 Marlas (Bagh Abi) in survey No. 567, 13 Kanals 12

Marlas (Abi Awal) falling in survey No. 609, 9 Kanals (Bagh Abi) falling under Survey No. 628, 18 Kanals 14 Marlas ( Bagh Awal) fallilng

under survey NO. 566, 7 Kanals 11 Marlas falling under survey No. 467/1.

Khewat No. 5 Khata No. 17

3 Kanals 4 Marlas falling under survey No. 552/3, 5 Marlas , 5 Marlas under survey No. 466/1, 13 Marlas under survey No. 567/1, 3

Marlas under survey No. 632, 13 Kanals under survey No. 73, 5 Kanals under survey No. 305, 1 Kanal 10 Marlas under survey No. 507, 1

Kanal 11 Marlas under survey No. 567, 6 Kanals 13 Marlas under survey No. 609 and 4 Kanals 8 Marlas under survey No. 628 situated at

Murund Dharbagh, Harvan Tehsil North Hazratbal, District Srinagar which is absolutely and exclusively possessed jointly by the

petitioners and their shareholders as has been verified by the Revenue Authorities after spot verification and the suit property is joint and

unpartitioned.

And take the custody of alleged suit property by exercising powers under Jammu and Kashmir Migrants Immovable Property (Preservation,

Protection and Restraint on Distress Sales Act) 1997 and rules framed thereunder being the custodian of the migrant property to take the

custody of the suit property as mentioned herein above from unauthorized, forcible and illegal occupants and hand over the possession of

the suit property to petitioners.

And also recover the usufruct of the suit property as mentioned above along with interest under Section 13 of Migrant Act from illegal

occupants who are illegally and unauthorizedly using the suit property without consent of petitioners from the date they have occupied the

suit property and be paid to the petitioners.

To command the respondent No. 6 (hereinafter called the Tehsildar North Hazratbal, Srinagar) to ensure not to change the ownership

rights of the petitioners.

To command the respondent No. 2 &3 (hereinafter called the Municipal Commissioner, Srinagar and Vice Chairman Lawda, Srinagar

respectively) not to allow the unauthorized and illegal occupants to raise the construction on any part of the suit property.

To command the respondent No. 5 &7 (hereinafter called the SSP, Srinagar and S.H.O. Police Station Harwan respectively) to give the

protection/Assistance to the petitioners for safeguarding their rights of the property and any document of sale executed by any of the

shareholder be declared as null and void and inoperative.

And

By an appropriate writ, order or direction particularly in the nature of a writ of prohibition.

To command the respondent No.1 to 7 to ensure that ownership rights of the suit property be not transferred/changed in favour of the

unauthorized persons/occupants and no permission of sale be processed regarding the suit property if any sale document is presented by

the illegal and unauthorized occupants and also to ensure that the unauthorized occupants may not raise any construction on any portion

of the suit property on a false frivolous document.’

The claim of the petitioners is that they are entitled to a share in the property of their mother namely Smt. Kamta alias Rajni Koul after her death who

was stated to be the daughter of late. Sh. Shiv Ji Bhat. It is stated that the mother of the petitioners expired in the year 2003 at Jammu and inherited

the share of the suit property after the death of her father Sh. Shiv Ji Bhat. It is further submitted that the suit property is situated at Murand Dhabagh,

Harwan Tehsil North Hazratbal, District Srinagar falling under Khewat No. as detailed out in the petition. It is submitted that the petitioners had

approached the respondent No. 8 for seeking the possession of their share which is stated to be under his possession but on resistance, the petitioners

approached the authorities for seeking the possession and protection of their share.

It is submitted that the petitioners who are migrants, had approached respondent No. 4 seeking protection of their property which as stated inherited

by them after the death of their mother under the provisions of Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and

Restraint on Distress Sales Act) 1997 (hereinafter referred to as “the Act of 1997â€). Aggrieved of the action of respondent No. 4, the petitioners

challenged the same on the grounds detailed out hereinabove.

On notice, the respondents have filed reply, wherein it is submitted by District Magistrate that the property situated at Murand Dhabagh, Harwan

Tehsil North Hazratbal, District Srinagar and the major portion of property in question is under the control of the attorney holder namely Khazir

Mohammad Bhat. In paragraph 7 & 8 it is stated that the Tehsildar concerned on inspection had reported that the land measuring 51 Kanals recorded

in the name of Som Nath, Triloki Nath and Roshan Lal Ss/O Shiv Ji has been given under the authority of Khazir Mohammad Bhat S/O Mohammad

Ramzan Bhat R/O Mufti Bagh, Harwan who has been appointed as attorney, having reference to the execution of the deed and registration of the

Power of Attorney registered by Sub-Registrar Jammu on 20.02.2000 for land measuring 23 K-10M from Khasra Nos. 493 ( 10k-16M), khasra No.

494 (16.5M), khasra No. 495 (7K-3M), khasra No. 499 (17M), khasra No. 500 (3K-5.5M), khasra No. 501 (8M) and Khasra No. 505 (4M). In

paragraph 8 it is further stated that the land measuring 10 kanals 06 Marlas under khasra No.405 (fenced partially with tin sheets) and land measuring

06 kanals 04 Marlas under Khasra No. 552 (fenced with stone walling) has attained position of „Banjar‟. It is stated that some locals stated that the

tin fencing was raised during autumn of 2017 by Triloki Nath, Soam Nath and Roshan Lal Ss/O Shiv Ji Bhat, while as a few contradicted this

statement saying that the fencing was done by Ravinder Kumar. In paragraph 9, it is stated that the Mutation in respect of the property has been

attested bearing Mutation No. 773 on the basis of the will deed which is testified by father namely Late Sh. Shiv Ji Bhat. It is further submitted that

the mutation is the subject matter of the proceedings before the Financial Commissioner Revenue who has deferred the proceedings in terms of order

dated 15.02.2005 in view of pendency of civil suit filed by the petitioners before the Court of 2nd Additional Munsiff, Judge Jammu.

Respondent No. 8 has filed objections stating there in that the husband of decease Rajni Koul @Kamta namely Jawahar Lal Kour had all along

harassed his wife and was pressing hard to get dowry in the shape of landed property which was all along objected by Rajni@Kamta and

categorically told her husband that in their family or on other relations, there is no such custom prevalent where daughters would claim property. She

also told her husband that since her father had provided good amount of dowry at the time of marriage and in addition to the said dowry, the father and

brothers were assisting all along the family of the deceased at every point of time whenever assistance was required. It is further made clear that it

was the deceased namely Kamta/ Rajni herself who pressed hard her father Late Shiv Ji Bhat that kindly execute a will deed in favour of her brothers

so that after the death of Shiv Ji Bhat or after her death, her husband who is a chronic litigant, may not harass the brothers of the deceased Kamta

including the respondent No. 8. It is further clear that the other sisters also made the same request and forced their father Shiv Ji Bhat for execution

of the will and it was at their instance, the deceased Shiv Ji Bhat executed the will in favour of his sons including respondent No. 8 with the consent of

the daughters including the mother of the petitioners. At the time of the execution of the will, the deceased Shiv Ji Bhat was in good and sound health.

The petitioners, their father Jawahar Lal Koul and all the daughters were in know of the fact that deceased Shiv Ji Bhat executed will in favour of the

respondent No.8 and other brothers. During the lifetime of the deceased Rajni/Kamta, the will was never challenged and it was only after

Rajni/Kamta expired, the chronic litigant that is the father of the petitioners started litigating with the respondent No.8 and other co-owners by

challenging the said will deed before the Court of learned 2nd Additional Munsiff, Jammu. The said suit was dismissed in default and thereafter the

petitioners filed restoration application and the said restoration application is pending consideration before the 2nd Additional Munsiff, Jammu. These

facts have not been brought to the notice of the Court and in this manner, the petitioners have concealed the material fact which warrants the

dismissal of the writ petition in hand.

Heard learned counsel for the parties, considered the matter and perused the record. The moot point for decision of this Court for entitlement of right

of the parties has reference to the applications of the provisions of the Act of 1997.

Admittedly, the parties in litigation i.e. petitioners and the respondent No.8 are migrants.

The District Magistrate who has been approached by the petitioners has submitted his report and in unambiguous terms has stated that the subject

matter of this writ petition is already under protection of the directions of the civil Court and the revenue authorities have also been reporting about the

status on possession.

There is no dispute with reference to encroachment of the property by someone who is alien but the dispute is between the co- sharers of the subject

matter of the civil suit. The survival of the claim and its entitlement depends on the decision of the civil Court.

Mr. Pandita learned counsel appearing for the petitioners submits that the Tehsildar North Srinagar has in latest report shown the petitioner in

possession of 16 Kanals and 12 Marlas.

Mr. Bhat, learned counsel for the respondents submits that the provisions of the Act of 1997 are not applicable to the parties in dispute. Since the

subject matter of this writ petition depends on the decision of civil Court, therefore, it shall be appropriate to dispose of this writ petition by providing

that the civil court shall pass appropriate order as regards the claim of the parties, depending on such decision the order already passed with reference

to protecting the rights of the parties, shall remain in force. The parties shall be at liberty to approach the civil court for seeking any relief for their

rights.

While disposing of this writ petition, it is made clear that any observation made hereinabove shall not come in the way of the civil Court for deciding

the matter in favour of either of the parties.