KAKA Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THIS case has a chequered history even though the issue in controversy is within a narrow compass. The petitioners are seeking intervention in a matter where they claim they have locus to agitate. In order to appreciate the controversy involved in this writ petition, it is pertinent to state some relevant facts hereinbelow:-

(2.) THE petitioners claim their right to land measuring 30 kanals 15 marlas as allottees on the basis of Depopulation Scheme formulated by the State Government in the year 1966. It is their case that as a result of eviction of the petitioners from the border area they were denied the right to cultivate the land owned and possessed by them. The Government in order to accentuate their miseries, formulated depopulation Scheme vide their order dated 17. 10. 1966. Perusal of the order reveals that they were to hold this property as superdars. It is also revealed that the land which is to be allotted to them would sustain them in day to day life. Two categories of land were required to be allotted to them, one State land and the other evacuee land.

(3.) THEY claim to have been allotted evacuee land under Survey no. 1375,1376 and 1379 in village Dhar Galoon. It is not in dispute that the petitioners were in possession of the said land. The respondent No. 2 who contested claim of the petitioners filed a civil suit before Munsiff Mendhar claiming declaration that she is entitled to half share of the property of her father comprised in survey No. 1375,1376 and 1379 situated in village Dhar Galoon and one third share of the property comprised in Survey No. 356 and 354 situated in village Kota. She claims the property as Khana Nishan Dukhtar of dost Mohd Khan who died without leaving beyond a male issue. The land claimed by the respondents has been allotted to the petitioners as being evacuee land. The contention was that this land has not been notifieid as evacuee land under section 6 of the Jammu and Kashmir state Evacuee ( Administration of Property ) Act, 2006 ( for short the act), as such its allotment in favour of the petitioners could not have been made. The suit of respondents was dismissed by Munsiff mendhar. The finding of Munsiff was set aside by the Ist. Appellate court by decreeing the suit of the respondents. It is against this order civil second appeal No. 97/1975 was taken before this court. Two issues were raised before this court, one relating to the status of the respondent No. 2 as Khananisheen daughter and the second civil court has no jurisdiction to entertain any suit regarding evacuee property. The appellate court confirmed the finding of the first appellate court that respondent No. 2 was Khananisheen dukhtar of late Dost Mohd Khan. With respect to second plea raised it set aside the finding of first appellate court and held that the property as evacuee property and section 31 of the Act debar the jurisdiction of the court to entertain or adjudicate upon any question regarding the property being evacuee or otherwise. Opportunity was given to respondent to move an appropriate application before the Custodian evacuee Property. On an application filed before the Custodian evacuee Property her claim was accepted and it was declared that the property was not notified as evacuee property as such she was entitled to possession of said property.