RIAZ JAN MAST Vs. ASIF JAVEED

JUDGEMENT

(1.) pondents sons of Javeed Rasool moved an application in the Court of District Judge, Srinagar for possession of items of property specified in the application against their uncle Javeed Riyaz under Succession (Property Protection) Act, 1977, here-in-after for short "Act". The District Judge Srinagar on the basis of material on record on the belief that the applicant's prima facie, as successors to their father Javeed Rasool, did have interest in the specified Matrooka Property and in case they are left to ordinary course of regular suit, material prejudice would be caused to them and on satisfaction of other requirements, issued notice and proceeded to determine summarily their right to possession. On enquiry, after considering the pleadings, copies of the documents and other material on record the District Judge Srinagar came to the conclusion that the petitioners are entitled to the possession and have an immediate right to possession of residential/commercial properties situated at Hari Singh High Street, except the shop housing the business concern 'M/s. Metal Mart'. L d. District Judge further held that with regard to other specified items of property, the petitioners have no right to exclusive possession being in joint ownership of petitioners late father and his brother, the respondents. These properties, the Judge concluded cannot be said to be held without lawful claim. Therefore, settling of possession with regard to these items has been declined. This pronouncement of the District Judge vide his order dated 29-2-2000 is under challenge in this revision.

(2.) At the out set, Respondent's counsel raises objection to the maintainability of the revision on the ground that the District Judge Srinagar in terms of provisions of the Act is not a Presiding Officer of Civil Court, but discharges his functions as Persona Designata. As the Act is a special Act, therefore, provisions of general Act have to give way to the provisions of the Special Act. It is further submitted that Sections 17 and 18 of the Act specifically provide that the decision as to settling of the actual possession shall be final not amenable to any appeal or review. The application of the powers of revision of the High Court are necessarily excluded.

(3.) The counsel for revision petitioner submits that the discharge of duties and functions of District Judge under the Act are out and out judicial in nature and the District Judge answers the discription of Presiding Officer of a civil Court, as the District Judge is Presiding over a Civil Court, thereby negating the concept of Persona Designata. This position is made clear by Section 18 of the Act which specifically gives finality to the decision of settling the actual possession and specifically mentions that it is to be deemed as "decision of the Judge".