KAKA Vs. KESAR BI

JUDGEMENT

(1.) MST . Kesar Bi, plaintiff -respondent No 1 filed suit in the Court of Sub Judge, Poonch, for declaration that she was entitled to half share of the property of her father comprised in survey Nos. 1375,1376 and 1379 situated in village Dhar Gloon and one -third share of the property comprised in survey Nos. 356 & 354 situate in village Kota, tehsil Mendhar and also for possession of the same. Her case was that the land comprised in the above referred khasra numbers was owned by her father Dost Mohd to the extent mentioned above, who died leaving no male issue. She and Mst. Bi Rani, defendant -respondent No. 4, were his daughters but she being his resident daughter (Dukhtar Khana -Nasheen) was residing with him. Her father, during his lifetime, gave share of his property to other daughter Mst. Bi Rani who sold the same to one Ali Bahadur. After the death of her father and also her mother Beguma, the mutation of the abovesaid property was attested in favour of Kaka, Saifu and Alam Bi, defendants being collaterals of late Dost Mohd who afterwards migrated to Pakistan during the holocast of 1947. The abovesaid land was allotted to defendants -appellants by the Assistant Custodian in the year.1968. She challenged the mutation attested in favour of Kaka, Saifu and Alam Bi in the suit, which according to her, was invalid as also the action of the Asstt. Custodian in allotting the land to the appellants herein.

(2.) THE suit was contested by the appellants -allottees as also by the Custodian mainly on the grounds that the plaintiff Kesar Bi had four other daughters who were not made parties and further denied the custom of having Dukhtar Khananashin in the Baradari of the plaintiff. They further averred that Saifu, and Kaka migrated to Pakistan in 1947 and the suit property held by them vested in the Custodian which property under the Depopulation Scheme was allotted to the allottees -defendants by the Assistant Custodian Mendhar, Under such circumstances the jurisdiction of the Civil Court was barred. From the pleadings of the parties, the following issues were framed in the case:

(3.) I have heard learned counsel for the parties and gone through the record placed before me. In this case only two major issues : firstly, pertaining to the custom of having Dukhtar Khana Nashin in the baradari deceased Dost Mohd, father of the plaintiff -and, secondly, regarding the jurisdiction of the Civil Court in trying the present suit, have been canvassed before me. I would like to discuss the same one by one.