DABOLI Vs. RAMU

JUDGEMENT

(1.) THE plaintiff has come up in this civil second appeal against the judgment of the learned District Judge, Bhadarwah, confirming on appeal the judgment of the trial court of Munsiff Doda, in a civil suit for possession of land brought by the plaintiff -appellant against the defendants -respondents. Briefly put, the facts of the case leading up to this appeal are as follows:

(2.) DHUMA , the original owner of the suit land was the father of the appellant and respondent No: 2, and husband of respondent No. 1 Dhuma died some time in the year 1962 and on his death the suit land was mutated in equal shares in favour of respondents 1 and 2 to the exclusion of the appellant, vide mutation No. 931 of village Bagwa Tehsil Doda, dated May 8, 1962. The appellant challenged the aforesaid mutation and claimed possession of one third share in the land left by her father Dhuma thereby conceding vesting of the other two shares in respondents 1 and 2. The suit was resisted by respondents 1 and 2 on two grounds: (1) that respondent No: 2 was a Khana Nishin daughter of her father and therefore, excluded the other heirs of Dhuma from inheriting his property; and, (2) that Dhuma had executed a will on respect of his entire property, movable and immovable, in favour of respondent No 2 on Katik 22, 2006 Bik. It appears that the respondents did not invite trial on the issue relating to the plea of Dukhtar Khana Nishin. The parties however, joined issues relating to the execution of the will dated 22nd Katik, 2006 Bk. alleged to have been executed by Dhuma in favour of respondent No. 2. The trial court came to the conclusion that Dhuma did execute the aforesaid will in favour of respondent No: 2 and therefore dismissed the appellants suit. The appellant went in appeal against the Judgment of the trial court to the District Judge, Bhadarwah, who also confirmed the finding of the trial court on the issue relating to will and dismissed the appeal. Having lost the battle all along the line, the appellant has come up to this court in second appeal.

(3.) THE appeal in normal course came up for hearing before a Single Bench of this Court (Honble Chief Justice S. M. F. Ali, as his lordship then was) but being of the opinion that the appeal involved an interpretation of the word "transfer" as used in Section 20 of the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 (hereinafter referred to as the Act) and there being no authority of this court directly on the point, the appeal was referred by his Lordship to a Division Bench for an authoritative pronouncement. This is how this appeal is before us.