Srinagar, Mar 11: The High Court of Jammu & Kashmir and Ladakh ruled that once the person in occupation of migrant immovable property fails to establish that he was in the possession of the immoveable property of a migrant with his written consent and authority of law, then only the order of eviction can be passed.
A division bench comprising Justices, Rajnesh Oswal and Mohan Lal held that once the competent authority has determined the possession over the migrant immovable property as unauthorized, then the stipulation of handing over the possession for the purpose of entertaining the appeal cannot be termed as onerous.
The court passed the observations in a plea filed by Abdul Khaliq Rather challenging the order issued by the authorities and a judgment passed by single-judge whereby the possession of the appellant over land measuring 04 Kanals and 5 ½ Marlas situated at Awrenbal, Sonawari, Sumbal was found to be illegal and the land was ordered to be kept in the possession of Deputy Commissioner, Bandipora through Tehsildar, Sonawari till the handing over of the possession to the rightful owners.
The single-judge bench in September, 2018 dismissed a plea of appellant on the ground that he had not placed any document on record to substantiate the fact that his possession was lawful at any point of time.
Upholding a single-judge verdict, the court noted that the appellant has concocted the story of execution of undertaking fraudulently only to wriggle out of the limitation provided for filing the appeal under Section 7 of J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
"From the records, it is evident that the respondents had pleaded before the Writ Court that the appellant has already vacated his illegal possession over the land mentioned herein above by executing a bond and therefore, he is estopped under law to agitate the matter any further," the court underscored.
The bench noted that there is no whisper in the plea about the execution of the said bond, but nonetheless, the appellant filed rejoinder stating that the undertaking dated 30th of November, 2012 appended to the objections claimed to have been executed with regard to the immoveable property constituting the subject matter of the plea is an outcome of fraud for the reason that the appellant was an illiterate person and was asked to sign a blank paper in order to ensure that the property in question was not converted to an orchard or used for any commercial purpose and that the appellant, in fact, never parted with the possession of the said immoveable property.
"This appears to be a story concocted by the appellant subsequent to the averment made in the objections to the Writ Petition because the said plea was not raised in the Writ Petition and, as such, the same cannot be believed and the learned Writ Court, too, has taken the said undertaking into consideration while passing the Judgment impugned," the court said.
The bench recorded that as per Section 4 of the Act of 1997, the District Magistrate was required to take over the possession of the immoveable property belonging to the migrant falling within his territorial jurisdiction and, on the expiry of 30 days, the said immoveable migrant property was deemed to be in the custody of District Magistrate concerned.
Likewise, the court said, Section 5 of the Act provides for the eviction of an unauthorized occupant and if the unauthorized occupant refuses or fails to surrender the possession to the competent authority, such authority may use force as is necessary for taking the possession of the said property.
The bench further elaborated that Section 7 of the Act provides for an appeal against the order passed under Section 5 of the Act, but the appeal against an order of eviction cannot be entertained unless and until the possession of the property is surrendered to the competent authority.
"Whether a person is an authorized occupant or not is to be determined by the competent authority under the Act of 1997, which is the District Magistrate concerned," the court said.
However, the counsel for appellant contended that the District Magistrate would get the jurisdiction to proceed under the Act of 1997 only when the possession of the occupant over the migrant property is unauthorized.
The court pointed out that an attempt was made to persuade it that the appellant has been in possession of the property in question before the year 1971 and, more particularly when the migrant pandits had handed over the possession of the property to the appellant by virtue of a ‘Hundi’ executed in the year 1987.
"But we are not convinced with the contention so raised by the appellant as there is no documentary evidence on record to demonstrate the fact that the appellant was, in fact, in possession of the property before 1971," the bench said.
The court noted that the revenue record, particularly the mutation, belies the contention of the appellant.
It underscored that the private respondents have categorically stated that the ‘Hundi’ is a forged and manipulated document.
"Otherwise also, on the basis of a ‘Hundi’ only, the appellant cannot claim possessory rights over the immoveable property in Kashmir in view of Sub-Section 3 of Section 138 of the Jammu and Kashmir Transfer of Property Act as it existed at that point of time, which categorically provides that no person shall take possession of any land in the province of Kashmir which has been transferred or contracted to be transferred to him, unless and until such transfer becomes valid under the provisions of Sub-Section (1) of Section 138, which provides that no immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing, registered and the registration thereof has been completed in accordance with Sub-Section 3 of Section 61 of the Registration Act, 1977," the court said.
Thus, the bench held, on the basis of a ‘Hundi’, no claim can be made with regard to immovable property.
Dismissing the plea, the court said that the Writ Court has meticulously examined all the issues involved therein and, as such, the present appeal is found to be misconceived.