Hasnain Massodi, Judge
1. The Civil Second Appeal on hand has been admitted on following substantial questions of law:-
(a). Whether the Civil Court has jurisdiction to try the case?
(b). Whether after conferment of occupancy rights the authorities under Evacuees Property Act have jurisdiction to adjudicate rights of the
parties.?
2. The appeal arises in the following background:-
One Shri Lahauri, after partition of the Country and occupation of a part of Jammu and Kashmir State by Pakistan, was displaced from his native
place in Pakistan occupied area and migrated to settle in this part of the State. The State Government to rehabilitate thousands of displaced
persons: like Shri Lahauri constituted a Joint Rehabilitation Board. The Board in exercise of powers under Allotment of Land to Displaced Persons
Rules, 1954 (Cabinet Order No. 578--C of 1954) allotted land measuring 63 Kanals and 17 Marlas situated at Village Ghore Bains, Tehsil R. S.
Pura in favour of Shri Lahauri and four of his other family members namely his wife -- Ananti Devi, Daughters -- Kaushalaya and Kaki and Son --
Shamsher Singh. The allottees, were later conferred Occupancy Rights over the allotted land u/s 3-A of Jammu and Kashmir Agrarian Reforms
Act, 1976. Smt. Kaushalaya and Shri Shamsher Singh passed away and in terms of Para 15-B (2) of Order No. 578-C of 1954, their shares in
the allotted land got vested in Shri Lahauri, Smt. Ananti Devi and Smt. Kaki. Shri Lahauri and Smt. Ananti Devi were blessed with one more
daughter -- Kanta Devi after they settled at Village Ghore Bhains. Smt. Kaki, the only child of Lahauri and Ananti left after demise of their son Shri
Shamsher Singh and daughter - Smt. Kaushalaya, on her marriage stayed at her parental house at Ghore Bains. However, after her younger sister
Kanta was married, Smt. Kaki shifted to her husband's house and Kanta stayed back along with her husband's with the parents. Shri Lahauri
passed away and on his death his rights in the aforesaid land were transferred in favour of his wife Ananti Devi. Smt. Ananti Devi also passed
away, whereafter Smt. Kanta Devi with her husband assumed control over the land initially allotted in favour of Shri Lahauri and his other family
members, on their getting settled at Village Ghore Bhains, R. S. Pura.
3. Smt. Kaki now living with her husband at Village Satrian, Tehsil R. S. Pura, soonafter the death of her mother Ananti Devi commenced a Civil
Suit in the Court of Munsiff, R. S. Pura against her sister Kanta Devi and brother in law Karan Singh, seeking a declaratory decree, declaring the
will attributed to her mother Ananti Devi executed and claimed to have been registered on 26th April, 1997 as void and inoperative against her
right on the ground of it having been procured by fraud, misrepresentation, coercion and undue influence and also because said Smt. Ananti Devi
was not competent to execute the will. Smt. Kaki Devi also prayed for a permanent injunction decree perpetually restraining the defendants in the
suit from forcibly dispossessing her from the allotted land.
4. The plaintiff's (Smt Kaki's) case was that she was the only surviving allottee of the suit land in question, and thus entitled to enjoy all rights
including possessory rights in respect of the land allotted to her and other family members by the Board of Rehabilitation in terms of Government
Order No. 578-C of 1954. It was pleaded that Smt. Ananti Devi was old and ailing, and under influence of defendants (Kanta Devi and Karan
Singh) and that the will attributed to Smt. Ananti Devi was outcome of fraud, coercion and undue influence practised by the defendants on her. It
was averred that the residential house constructed by the plaintiff and other allottees was in the joint possession of the parties and that the parties
as co-sharers, where under an obligation to partition the house by metes and bounds in equal shares.
5. The defendants contested the suit on the ground that Kaki Devi had lost all rights in the allotted land including the suit house on her marriage with
Shri Pritam Singh at Satrian, R.S. Pura. The defendants pleaded that Smt. Ananti Devi executed the will dated 26th April, 1997 out of her free will
without any force coercion or undue influence. The defendants claimed to have been in exclusive possession of the suit property.
6. The Trial Court on perusal of the pleadings settled following issues.
i. Whether Mst. Ananti Devi Wd/o Lahauri Mal was not competent to will away the suit property ? OPP
ii. In case issue No. 1 is proved in negative whether the impugned will deed executed by Mst. Ananti Devi in favour of defendants has been
procured by fraud, misrepresentation, coercion or undue influence ?OPP
iii. Whether the plaintiff alongwith defendants is in join possession of the suit property ?OPP
iv. Whether the defendants are dispossessing the plaintiff from the suit property ? OPP
v. Relief.
7. The Trial Court on a detailed discussion of the pleadings and the evidence brought on the file and after survey of case law on the subject held
Smt. Ananti Devi not to have been competent to ""will away"" the allotted land and the residential house and to execute will dated 26th April, 1997
in favour of defendant Smt. Kanta Devi. It was further held that execution of will dated 26th April, 1997 by Smt. Ananti Devi was not free from
suspicion. The Trial Court held the plaintiff to be in joint possession of the suit house. However, the plaintiff was held not to be in possession of the
allotted land other than land underneath and appurtenant to the house. The Trial Court proceeded to decree the suit and declared the will dated
26th April, 1997 attributed to Smt. Ananti Devi as null and void. The Trial Court allowed the prayer for partition of the suit house and granted a
preliminary decree for partition of the suit house by metes and bounds in equal shares between the plaintiff and her sister -- defendant No. 2 in the
suit.
8. The Trial Court judgment and decree dated 09.12.2006, was questioned both by the plaintiffs and defendants, in Civil First Appeals in the
Court of 2nd Additional District Judge, Jammu. The appeal filed by plaintiff came to be registered as 68/Appeal, while as the appeal filed by the
defendants was registered as 81/Appeal.
9. The Appellate Court disposed of both the appeals vide common Judgment dated 24th December, 2009. The Appellate Court maintained and
upheld the trial Court decree as regards partition of the residential house by metes and bounds in equal shares, holding that Smt Kaki Devi and
Kanta Devi were only surviving legal heirs of Lahauri, co-owners of the house and entitled to get it partitioned. The Appellate Court as regards the
land allotted in favour of Lahauri and others held the Civil Court to have no jurisdiction to entertain and deal with the matter. The Appellate Court
noticing that allotment was governed by Allotment of Land to Displaced Persons Rules 1954, made in exercise of powers u/s 39 of the Evacuees
(Administration of Property) Act, held Section 31 (iii) of the Act to bar jurisdiction of the Civil Court to deal with the controversies raised in the
civil suit. The Appellate Court was of the opinion that in terms of Section 10 of the Act, the Custodian Evacuees Properties is vested with the
power to vary or cancel lease or allotment made under the Act or Rules made thereunder. The Appellate Court, accordingly, allowed the appeal
and set aside the finding returned by the trial Court as regards allotted land. The parties were given liberty to approach the Competent Authority
under the Act to get their grievances redressed.
10. Kanta Devi and her husband -- appellants in Civil 1st Appeal registered as 81/Appeal, have filed Civil Second Appeal on hand, assailing the
First Appellate Court Judgment dated 24th December, 2009, on the grounds taken up in the appeal. The appellants insist that the respondent
having left parental house was not entitled to any share in the residential house left by her father and in exclusive possession of the appellants. The
appellants further questioned the finding returned by the 1st Appellate Court on authenticity of the will claimed to have been executed by Smt.
Kanta Devi in favour of appellants. The Appellate Court finding that the matter fell within jurisdiction of Authorities under Evacuees (Administration
of Property) Act is also disputed by the appellants. It is pleaded that once occupancy rights u/s 3-A of Agrarian Reforms Act were conferred on
Kanta Devi, the role, if any, of Authorities under Evacuees (Administration of Property) Act came to an end. The appellants on the strength of
grounds urged in the memorandum of appeal seek setting aside of the judgment and decree passed by Trial Court and the First Appellate Court
and dismissal of the suit commenced by the respondents.
11. I have gone through the memorandum of appeal and the record received from Courts below. I have heard counsel for the parties, at length.
12. The subject matter of the civil suit between the parties and the proceedings emanating there from admittedly, is evacuee property within the
meaning of Section 2 (d) of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006 (hereinafter called as Evacuees
Property Act). The suit property had been allotted to the father of respondent and his family members including the respondent under Allotment of
Land to Displaced Persons Rules 1954 (Cabinet Order No. 578-C of 1959 dated 07.05.1954). The Rules have been made in exercise of powers
u/s 39 (2)(e),(i) and (g) of the Jammu and Kashmir State Evacuees (Administration of Property) Act, Svt.2006. Section 31 of Evacuees Property
Act excludes/bars, jurisdiction of Civil Courts as regards certain matters identified therein. It would be advantageous to reproduce hereunder
Section 31 of Evacuees Property Act;
Jurisdiction of Civil Courts barred in certain matters
(1) Save as otherwise expressly provided in this Act, no civil Court shall have jurisdiction-
(i) to entertain or adjudicate upon any question whether any property is or is not evacuee property or whether an evacuee has or has not any right
or interest in any evacuee property; or
(ii) to question the legality of any action taken by the Custodian General or the Custodian under this Act,
(iii) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine.
13. The first Appellate Court has taken the view that jurisdiction of Civil Court is barred as regards the question raised in the suit to the extent they
relate to entitlement of the parties to the suit land and get the suit land partitioned by metes and bounds. Before making an effort to find answers to
the substantive question of law on which the present Civil 2nd Appeal has been admitted, it would be appropriate to recapitulate and revisit the
controversy involved in the suit. The respondent -- Kaki Devi was born sometime before 7th May, 1954 and accompanied her parents from the
area of the State presently under occupation of Pakistan and settled in village Ghore Bains, Tehsil R. S. Pura. The respondent was, thus, one of the
allottees of the land in question allotted by Joint Rehabilitation Board in exercise of powers under Allotment of Land to Displaced Persons Rules
1954. It is pertinent to point out that in terms of afore-stated Rules, the land is allotted to a family and not to the head of the family. In terms of
Explanation to Rule 2, ""family"" includes husband, wife, unmarried children, dependent parents and other relatives actually living together. The
respondent -- Kaki Devi born sometime before 7th May, 1954, is the only surviving member of the family that migrated from Pakistan occupied
territory and settled in Ghore Bhains, Ranbir Singh Pora, Jammu. In other words, the respondent is the only surviving allottee of the land in
question. The respondent's case before the Trial Court has been that she is entitled to one-half of the land allotted in her favour and other family
members, on the ground that she is the only original surviving allottee and, thus, entitled to share the suit land in equal shares with her sister --
Kanta Devi, who became member of the family by birth - appellant No. 1 herein.
14. The respondent's claim is opposed by the appellants on the ground that the respondent having married and settled at a place other than her
village, she has lost all rights in the suit land in terms of Rule 15(b), Allotment of Land to Displaced Persons Rules 1954 incorporated vide SRO
328 dated 23.06.1969. It would be advantageous to reproduce hereunder the relevant part of the Rules 15(b)(2). It reads;
If an allottee dies, his interest in the allotted land shall devolve on other members of his family in whose favour allotment of land has been originally
made or regularized under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such
allotment, excluding those who may have died earlier or may have left the family on account of marriage or adoption.
15. A closer look at Rule 15 (b) Sub-Rule-2 reveals that where an allottee dies, his interest in the allotted land is to devolve as under;
(a) to his co-allottees, i.e. other member of his family in whose favour, allotment of land has been originally made or regularized under Allotment of
Land to Displaced Persons Rules 1954 and,
(b) the members of the family who though not original allottees but have become members of the family after the land was allotted by marriage,
birth or adoption.
16. However, a member of the family is excluded from survivor-ship who on account of marriage or adoption has left the family before the death
of the allottee whose interest in the allotted land is to devolve on the original allottees and newly added members of the family as the case may be.
17. The controversy involved in the litigation between the parties gives rise to following questions;
(i) Whether Kaki Devi as an original allottee is entitled to a share in the allotted land in her own right irrespective of her entitlement to succeed to
the part of the allotted land held by her mother, Smt. Ananti Devi,
(ii) Whether Kaki Devi had a right to succeed along with her mother, Ananti Devi and sister Kanta Devi to the part of the allotted land held by her
after Shri Lahauri in terms of Rule 15(b)(2), Allotment of Land to Displaced Persons Rules 1954 in equal shares,
(iii) Whether Kaki Devi and Kanta Devi are entitled to succeed by survivor-ship to the part of the allotted land held by Ananti Devi on her death,
(iv) Whether application of exclusion clause whereby, a family member who by marriage, birth or adoption has left the family before death of her
allottee, is restricted to the newly added family member or extends also to the original allottee.
18. The fate of rival claim set up by two sisters to the allotted land, hinges on answer to the above questions. The question remains whether the
Civil Court in terms of Section 31 of the Evacuee Property Act jurisdiction of Civil Court would be barred to deal with the said questions and the
controversies between the parties.
19. Section 9 CPC 1977 confers jurisdiction on the Civil Court to try all suits of the civil nature excepting suits of which their cognizance is either
expressly or impliedly barred. It follows that ordinarily a suit of civil nature is to be tried by a Civil Court and a party questioning jurisdiction has to
substantiate that cognizance of the civil suit is expressly or impliedly barred.
20. It is well settled law that exclusion of the jurisdiction of Civil Court is not to be readily inferred. Whenever reference is made to an Act or any
of its provisions to plead exclusion of jurisdiction, the Court is not only required to see whether such provision does as a matter of fact, expressly
or impliedly bar the jurisdiction of the Civil Court but also to satisfy itself whether under the scheme of the Act, there is a remedy available to the
person who though not competent to commence a civil suit made nonetheless, fall back upon remedy so provided under the Act. The provisions
for a remedy under the Act is bound to strengthen the case set up by a person questioning jurisdiction of Civil Court to deal with the matter that the
exclusion to the jurisdiction of the Civil Court is intended under the Act. The Court, it needs to be emphasized would, as consistently laid down by
the authoritative Judicial pronouncement, lean in favour of an interpretation upholding jurisdiction of the Civil Court.
21. In the present case, the controversy between the parties does not relate to status of the land in question as evacuee property or claim the right
of evacuee in the property. It does not also relate to the legality of any action taken by the Custodian General or the Custodian under the Evacuees
Property Act. It, nonetheless, is to be examined whether the Custodian General or the Custodian is empowered under the Evacuees Property Act
to deal and decide the questions raised in suit between the parties and spelt out herein above. In other words, while the dispute between the parties
admittedly does not fall with Section 31(1), (i) and (ii), it still is to be examined whether the matter falls within Section 31(1), (iii), so as to bar and
exclude jurisdiction of the Civil Court. The controversy as already pointed out revolves around rival claims of the allottees/persons claiming under
allottees of the evacuee property allotted under Allotment of Land to Displaced Persons Rules 1954 framed in exercise of power u/s 39(2)(e),(i)
and (g) of the Evacuees Property Act. Section 4 of the Evacuees Property Act empowers the Government to appoint one or more Custodians of
the evacuee property to discharge the duties imposed under the Act. In terms of Section 5 of the Evacuees Property Act, subject matter of the suit
is to be deemed to have vested in the Custodian. The Custodian, in terms of Section 7, is empowered to take possession of evacuee property
vested in him and deal with the claims, if any, set up by the interested persons in the evacuee property. Section 9 enumerates the powers and
duties of the Custodian, Section 9(2)(1) empowers the Custodian to allot in accordance with any rules or transfer in any manner whatsoever any
evacuee property, notwithstanding anything contained in any law or agreement to the contrary relating thereto. Section 9 (2)(11) empowers the
Custodian to allow any displaced person to raise construction on the allotted land and in terms of Section 9-A, no construction can be raised on
evacuee property without sanction in writing of the Custodian. Section 10 empowers the Custodian to cancel any allotment or terminate any lease
or amend the terms of any such lease or of any agreement on which any evacuee property is held or occupied by any person. The Custodian
General u/s 30 (1)(b) is conferred power and given jurisdiction to hear appeal against the order made by the Custodian under provisions detailed
u/s 30(1) of the Evacuees Property Act. The Custodian General is also empowered u/s 30(4), either on his own motion or on application made to
him send for the record of any proceeding under this Act whether pending or disposed of to satisfy himself as to the legality or propriety of any
order passed in such proceeding and to pass such order in relation thereto as he thinks fit.
22. The above brief survey of the powers of Custodian General and Custodian under the scheme laid down in Evacuees Property Act, would
reveal that the controversy between the parties and the questions arising out of such controversy are to fall within the ambit and scope of powers
conferred on the Custodian. The nature of controversy involved creates bar to jurisdiction of the Civil Court in terms of Section 31(1)(i) and (ii) of
the Evacuees Property Act to deal with it. The Evacuees Property Act does not only clothe the Custodian with the power to deal with and decide
inter-se claims of allottee of the land allotted under Allotment of Land to Displaced Persons Rules 1954 but provides the forum to an allottee or a
person claiming under him aggrieved with the order of the Custodian to question such order in a appeal or revision.
23. So viewed, there is no scope for any disagreement with the 1st Appellate Court that the suit as regards entitlement of the parties to the allotted
land and their right to get it partitioned by metes and bounds falls within the ambit of the powers of Custodian under Evacuees Property Act and
jurisdiction of the Civil Court is barred in terms of Section 31 of the Evacuees Property Act.
24. The fact that in terms of Section 3-A of the Jammu and Kashmir Agrarian Reforms act, 1976, ""Occupancy Tenancy Rights"" have been
conferred on the displaced persons cultivating evacuees' land personally and that such displaced persons are given right to transfer of occupancy
tenancy by sale, mortgage or gift, does not change complexion of the matter. Section 3-A of the Agrarian Reforms Act, 1976 makes use of the
occupancy tenancy"" only to identify the status and rights of displaced persons granted, land under the Allotment of Land to Displaced Persons
Rules 1954 and the Evacuees Property Act as also the Rules made there under continue to govern all the matters relating to end, flowing out of
allotment of the land to the displaced persons under the Allotment of Land to Displaced Persons Rules 1954. In terms of Section 3-A of the
Agrarian Reforms Act, whereby the displaced persons cultivating evacuees' land personally are to be deemed to be occupancy tenants and
recorded as such, does not divest the Custodian in whom evacuee property is vested in terms of Section 5 of the Evacuees Property Act of such
property. It is pertinent to point out that in terms of Section 3 of the Agrarian Reforms Act, 1976, the application of Agrarian Reforms Act, 1976
to the evacuees land is restricted to Sections 4(2)(c), 5, 7, 13, 14 and 26(3). It is expressly provided that the provisions of the Agrarian Reforms
Act, 1976 would not confer any ownership rights upon a displaced person or other person in any evacuees' land or affect or interfere with the
rights of possession or legal obligation of a displaced or other person conferred or imposed by or under any law, rule or order, for the time being in
force, in respect of such land. The conferment of Occupancy Tenancy Rights on displaced person in terms of Section 3-A of the Agrarian Reforms
Act, 1976, does not divest the authorities under Evacuees Property Act of the jurisdiction to adjudicate rights of the allottees -- parties in the
present case.
For the reasons discussed above, the substantial questions of law on which the appeal was admitted are answered in negative. Resultantly the
judgment of 1st Appellate Court dated 24th December, 2009 registered as 81/Appeal is upheld and the Civil Second Appeal is dismissed.
