MAJID PIR Vs. MOHD PEER

JUDGEMENT

(1.) THIS revision is directed against an order passed on 21. 9. 1979 by District Judge, Srinagar, on an application made by the petitioner, Ahmed Pir, under the Succession (Property protection) Act, 1977 (1920 A. D.), (hereinafter called The Act), in regard to certain movable and immovable property allegedly left by his brother. The petitioners case was that he was the only legal heir and successor to the property left behind by the deceased. His further case was that the opposite party had forcibly entered into possession without any lawful title. He prayed that the opposite party be directed to deliver the property to him. The opposite party opposed the application. After recording the evidence and hearing the arguments of parties, the learned District Judge dismissed the application observing as under: - "It is proved from the evidence on record that the non -applicants are in peaceful possession of the property and that their possession is not in any way forcibly or unlawful. The petitioner claims to be the legal heir of the deceased but in this petition it is not possible for me to determine his legal right or claim."

(2.) THE argument of the learned counsel for the petitioner is that the learned District Judge has completely misdirected himself. His finding was not sufficient in order to entitle the District Judge to order dismissal of the application. He referred to Sec. 3 of the Act and contended that what the learned District Judge had to satisfy himself about was firstly, whether the opposite party had any lawful title : secondly, whether the petitioner was really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a regular suit, and thirdly, whether the application was made bonafied. He contended that the learned District Judge has not applied his mind to any of these questions and has dismissed the application, on consideration which are wholly extraneous to the Act. The judgment is vitiated and cannot be sustained in law. In reply, learned Counsel for the opposite party referred to the preamble of the Act and contemplates action where the property has been taken or is being taken on pretended claims of right by gift or succession. He further contended that the learned District Judge had found that the opposite party was in peaceful possession of the property and consequently he was justified in ordering dismissal of the application. Section 3 of the Act reads as under: - "The judge to whom such application shall be made shall, in the first place, enquire by the solemn declaration of the complainant, and by witnesses and documents at his discretion whether there be strong reasons for believing that the party in possession or taking forcible means for seizing possessions has no lawful title, and that applicant, or the person on whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a regular suit and that the application is made bonafide."

(3.) CLEARLY , this section requires the District Judge to hold an enquiry and to determine three points. Firstly, whether the opposite party has no lawful title: secondly, whether the applicant is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a regular suit, and thirdly, whether the application is made bonafide. To the same effect are the decisions in Phul Chand Lal Vs. Kishmish Koer, 6 I, C 630 and Bahatarini Devi Vs. Profulla, A I. R. 1933 Cal. 17. In the present case, the learned District Judge has nowhere determined these points. All that he has found is that the opposite party is in peaceful possession of the property. In my opinion, this finding was not sufficient in order to entitle the District Judge to dismiss the application. It is true that pre -amble of the Act speaks about the pretended claims of right by gift or succession, but the pre -amble cannot limit the operation of the substantive provisions of the Act which have a wider scope. It must necessarily be read in the light of the substantive provisions of the Act. Section 3 speaks of a person having no lawful title and what the learned District Judge had to enquire and determine was, whether the opposite party had no lawful title to the property and also whether the petitioner is entitled to the property and is likely to be materially prejudiced if left to the ordinary remedy of a regular suit and also whether his application was bonafide. The conclusion arrived at by the District Judge does not satisfy the requirements of Sec. 3 and consequently, in the exercise of jurisdiction vested in him, he has acted illegally and with material irregularity.