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J & K High Court: Before appealing Eviction order, possession of the property must be surrendered

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Case title:-LYCEUM PUBLIC SCHOOL VERSUS UT OF J&K & OTHERS

Case No:-WP© No.150/2023

Decided on:-29.03.2024

Quorum:-HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

Facts of the case

The petitioner filed the current petition to quash the orders dated 15.01.2020 and 28.12.2022 on the grounds that respondent No. 2 failed to provide sufficient justification for dismissing the appeal. Recognize that the District Magistrate, Anantnag, did not appropriately consider the fact that the petitioner had been occupying the migrant property since 1982, well before the escalation of militancy and unrest in the State of J&K, when issuing the order dated January 15, 2020. In actuality, the District Magistrate has adopted a viewpoint that is at odds with the ruling rendered by this Court’s Division Bench in Rajeev Verma & Ors. Vs. State & Ors., 2010 (2) JKJ HC 859. Respondent No. 2 utilized their authority for Appellate Authority, was required to provide a finding on the case’s merits; however, respondent No. 2 dismissed the appeal on a ground that was not available to him in light of the directive contained in the order dated July 21, 2022, rather than deciding the appeal on its merits and rendering the judgment with reference to the petitioner’s factual matrix. In addition to the points mentioned above, the petitioner has brought up a few factual issues that might not be pertinent to the decision-making process regarding the brief dispute at hand. The private respondents have submitted a response in which they state that the District Magistrate investigated under the Migrant Act and, following that investigation, issued an order on November 22, 2018. The petitioner’s encroachment being removed. the petitioner challenged the aforementioned order of January 15, 2020. The private respondents assert that only an owner has the legal ability to establish a legal authority. In the present instance, the owner’s written consent to the occupant’s possession of the migrant property is missing, making the petitioner’s possession of the property unlawful. The petitioner has terribly failed to provide any pertinent documentation to support his assertion that he was an authorized renter and that the District Magistrate correctly determined him to be an unlawful inhabitant.

Legal Provisions

Section 5 of the J&K Migrant Immovable Property (Protection, Preservation and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as “the Migrant Act”)

Appellant Contentions

Mr. Shuja-ul-Haq, the petitioner’s learned counsel, argued that the petitioner was not the property’s authorized occupant as tenant and that respondent No. 2 had chosen a shortcut to decide the appeal rather than considering the petitioner’s claim on its merits. As a result, the respondent refused to exercise the jurisdiction granted to him by the Act (supra).The petitioner’s knowledgeable attorney attempted to persuade the court that the court had protected the petitioner’s ownership and had ordered that the relevant property not be turned over to the private respondents. Although the argument seems appealing, it should be dismissed based only on the fact that the ruling dated July 21, 2022 stipulated that the possession of the Subject property will stay in the possession of the relevant District Magistrate. Not only that, but giving up possession was a requirement in order to consider an appeal against a Migrant Act order. It is well-established law that an act must be carried out in a certain way if a statute specifies how it must be done in order to reap any benefits. The appeal was not maintainable after the petitioner gave up ownership of the relevant property by failing to comply with Section 7 of the Migrant Act’s requirements for appealing. The petitioner failed to take advantage of the numerous opportunities provided to relinquish possession. To the relevant District Magistrate and, in actuality, Respondent No. 2 made every effort to ensure that the appeal was decided on the merits, but the petitioner’s actions prevented the respondent No. 2 from making a merit-based decision because Section 7 of the Migrant Act forbade the competent authority from considering any appeal filed by an affected party unless they gave up possession of the property in question.

Respondent Contentions

Learned counsel for the respondent has raised a preliminary objection in respect of maintainability of the writ petition, particularly when the petitioner failed to comply with the directions passed by this Court and also the statutory provisions while filing the statutory appeal

Judgement

The petitioner challenged the aforementioned order on two grounds: first, that the migrant had passed away and was not represented by any legal counsel; and second, that the petitioner was the property’s authorized occupant. The Court dismissed the aforementioned writ petition with an order dated January 17, 2019, stating that the District Magistrate in question would have to review and rule on these two issues before moving forward in the situation. After reviewing the petitioner’s claim, the District Magistrate determined that the petitioner was an unauthorized occupant occupying the migrant’s immovable property without the migrant’s consent. As a result, the District Magistrate ordered the petitioner to leave the premises and migrant property by order dated January 15, 2020. Through the aforementioned CM(M) No.12/2020, The perusal of Section 7 (supra), would reveal that surrender of Possession of the property, which is the subject matter of appeal, is Sine quo non for the purpose of entertaining an appeal against an order of eviction. The perusal of order dated 21.07.2022 passed by this Court in CM(M) No.12/2020 reveals that this Court had provided that the possession of the property shall remain in custody of the District Magistrate but shall not be delivered to respondents No.3 to 5 therein. Perusal of the order impugned dated 28.12.2022 reveals that the Petitioner did not surrender the possession and the respondent No.2, The Appellate Authority, granted repeated opportunities to the Petitioner on the dates mentioned in the order impugned to surrender The possession but the petitioner did not comply the order dated 21.07.2022 passed by this Court and the respondent No.2 taking note Of default on the part of the petitioner to surrender the possession of The subject property, dismissed the appeal in limini

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Co-sharer is not prohibited from building on their portion by the mere assertion that the property is undivided: The J&K High Court

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Case Title:-Vijay Singh S/o Charan Singh versus Surjit Singh

Case No:-OWP No. 1425/2018 CM No. 9303/2021 & IA No. 01/2018 c/w CPOWP No. 68/2019

Decided on:28-02-2024

Quorum: HON’BLE MR. JUSTICE PUNEET GUPTA, JUDGE

Facts of the case:-

The petitioner-plaintiff filed a declaration suit, alleging that the defendants and the plaintiff are joint owners and that the plaintiff is in possession of land that includes Survey No. 167 min, which is 43 kanals and 18 marlas. The 26 kanals and 7 marlas of Survey No. 168 are located in the Village Raipur, Koller Tehsil, and District Samba. The property is unpartitioned and may be used by anyone until it is divided. Additionally, a permanent prohibitory injunction prohibits Respondents, Defendant Nos. 1 through 5, from forcibly and illegally forcing the plaintiff to leave the area by building shops and sheds on the portion of land that borders the road in order to preserve the value of the remaining land. In addition, it is alleged that defendants Nos. 6 through 9 are entitled to the in question property and have simply been presented as proforma defendants. The plaintiff’s lawsuit is predicated on revenue. Document that is attached to the plaint. The appellate court’s decision to permit the defendants to raise construction in their own portion, despite their long-standing exclusive possession of it, has angered the petitioner-plaintiff. The directive, it should be noted that although the court permitted the defendants to present construction, it also ordered that, should the plaintiff win the ultimate decree, the defendants must remove all of their work and that they cannot argue for reimbursement for any costs associated with it. Respondents Nos. 1 through 4 have filed objections to the petition, citing their affirmative position in the written statement as support.

Petitioner Contentions:-

The main argument of the counsel for the petitioner-plaintiff is that in case the defendants are allowed to raise construction, the same shall change the nature of the land and the same could not be allowed when the suit property is yet to be partitioned. Further the proceedings pending before the revenue courts shall get effected in view of the order passed by the appellate court. The other side has contended that the plaintiff is himself party to the agreement and that partition has taken place of 18 Kanals of land. The respondents also referred to the report of the Tehsildar wherein he had mentioned of the oral partition having taken place between the parties. The plaintiff has pleaded that the suit property is not partitioned and therefore, any interference in the suit property in any manner may be by way of construction only shall change the nature of the suit and cause irreparable loss to the plaintiff. The property till partitioned belongs to all the joint holders and have right to enjoy the same. The value of the property cannot be allowed to be diminished by any party to the suit by raising construction

Respondent Contentions:-

The defendants have filed the written statement wherein the defendants have stated that an agreement and adjustment of their portion of land in certain khasra numbers was made and the agreement was reduced into writing and the defendant Nos. 1 to 4 also put their signatures on the same. The front portion is in possession of defendant Nos. 1 to 4 and had a pathway for egress and outgress for going towards the land of the plaintiff and defendant No.5. In fact the shares of the parties have been ascertained in the revenue record. As the plaintiff and defendant No.5 got their piece of land by way of mutual agreement, therefore, there is no question of seeking declaration in the suit. The defendant No.5 is the real brother of the plaintiff and had already disposed of the land measuring 18 Kanals 10 marlas to one Charan Singh Choudhary and the defendant Nos. 1 to 4 have already raised construction about 20 years ago of shops, houses etc. to which the plaintiff never raised any objection. The case of the defendants on the other hand is that the plaintiff is himself signatory to an agreement executed in the year 2010 and further the brother of the plaintiff has disposed of 18 kanals of land which itself shows that the partition has taken place. The mutual division has already taken place as per the report of the Tehsildar dated 12.12.2017 which was made on the directions of the appellate court dated 05.10.2017.

Court Analysis and Judgement:-

The court noted that mere assertion in the suit that the property is un-partitioned and therefore the defendant cannot raise construction in any portion of the land is without any basis. The defendants are in possession of certain piece of property exclusively and to the exclusion of the plaintiff is prima facie made out from the fact that the plaintiff does not aver in the plaint that he is in possession of the property where the defendants intend to raise the construction. The agreement of 2010 also prima facie reveals the participation of the plaintiff in it and that further 18 kanals of land already Stands sold out to one Charan Singh by the brother of the plaintiff. The oral partition report given by the Tehsildar though may not be final word Of partition but it does at this juncture favour the assertion of the defendants that the oral partition had already taken place and the parties are in possession of their share. The appellate court while modifying the status quo order of the trial court and allowing the defendant to raise construction has adequately passed directions keeping the interest of the parties including the plaintiff. The appellate court has even directed the defendants not to raise the construction on a pathway also as is mentioned In the order which should satisfy the petitioner herein. The court finds that there is no exceptional circumstance which may require interference by this court in the order passed by the appellate court. However, in addition to the directions passed by the appellate court in the appeal it is also directed that the defendants shall not raise any construction beyond the land which is in their possession or dispose of any portion of suit property during the pendency of the suit. The trial court while dealing with the suit shall not get influenced by any observation made by this court or the appellate court. The connected applications as well as the contempt petition also stand disposed of.

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Supreme Court noted that according to the Maharashtra Revenue Patels (Abolition of Offices) Act, tenants who held watan property on “Tiller’s Day” would be eligible to buy watan property

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Case Title: Baban Balaji More(Dead) by LRs. & others versus Babaji Hari Shelar(Dead) by LRs. & others

Case No: Civil Appeal No.9356 of 2017

Quorum: Justice Sanjay Kumar

Facts of the case:-

Before August of 1898, the current appellants predecessor, Balaji Chimnaji More, had a Patel Watan. He was given Watan property, namely a 50% interest in a 20-acre plot of land in Survey No. 386 and a 50% interest in a 16-acre plot in Survey No. 410 in Village Chikhali. The predecessors of the respondents in this case, Babaji Hari Shelar and Ganapati Dhondiba Tapkir (or Tapkire), have been tenants of this Watan property since around 1955–1956. Balaji Chimnaji More passed away in February or March of 1958 while doing so. This clause stated that without the approval of the State Government or the Commissioner, as the case may be, a Watandar was not permitted to mortgage, charge, alienate, or lease any Watan, or part thereof, or any interest therein, to or for the benefit of any person who was not a Watandar of the same Watan, for a period of time longer than the term of his natural life. By order dated 18.04.1961, the Assistant Collector, I/C, Haveli Taluka, Poona, declared that the applicants’ father’s tenancy could not last past his death and that they would, therefore, be entitled to reclaim the property upon his death. Their father’s passing. As a result, he granted their plea and gave them the order to take ownership of the lands that were under their portion. The tenants, Babaji Hari Shelar and the legal heirs of the late Ganapati Dhondiba Tapkir, namely Laxman, Rama, Damu, and Babu Ganapati Tapkir, filed Watan Appeal No. 6 of 1961 before the Additional Collector, Poona, expressing their grievances. Nevertheless, the appeal in question was dismissed by an order dated March 27, 1962. On April 14, 1962, the tenants took the case to the Additional Commissioner, Poona Division, Poona. The Additional Commissioner issued an order on June 12, 1962, treating the proceedings as an appeal against the ruling dated March 27, 1962, in Watan Appeal No. 6 of 1961. In light of this, the Additional Commissioner dismissed the appeal.

Legal Provisions:-

The oldest of the three statutes:-

Maharashtra Hereditary Offices Act, 1874 (for brevity, ‘the 1874 Act’).

Maharashtra Tenancy and Agricultural Lands Act, 1948 (for brevity, ‘the Tenancy Act’),

Maharashtra Revenue Patels (Abolition of Offices) Act,1962 (for brevity, ‘the Abolition Act’).

Appellant Contentions:-

The appellants contend that this case cannot be considered an appeal since the statutory system only permitted one appeal. They would argue that this case should be interpreted with the ensuing implications. In any case, the lands in question were given to the Watandar family’s legitimate heirs on April 22, 1962, while this case was pending, in accordance with an order issued by the Assistant Collector, I/C, Haveli Taluka, Poona, on April 18, 1961. All Patel Watans were eliminated. As a result, everything related to the aforementioned Watans was eradicated, including their property and their ability to hold public office. All Watan lands were resumptive and subject to land revenue collection, subject to the restrictions of Sections 5, 6, and 9. Furthermore, Section 3(c) stipulated that all Watan lands remained resumed and were subject to payment of land revenue under the terms of Sections 5, 6, and 9.Under the applicable Code, treating them like unclaimed territory. However, Section 5 of that document stipulated that the Watan land would be granted to the Watandar. According to Section 5(1), Watan land resumed under Section 3 shall, upon application, be regranted to the Watandar of the Watan to which it appertained, provided that the Watandar pays the State Government the occupancy price equal to twelve times the amount of the full assessment of such land within the Watan. This application is made in relation to cases not falling under Sections 6 and 9 meaning of the applicable code with regard to any such land and will be principally responsible for paying land tax to the State Government in compliance with that code’s requirements. The provision to Section 5(1) stated that the Watandar, or others acting on their behalf, shall pay the occupancy price equal to six times the full assessment of any Watan land that was not assigned under the current Watan law as compensation for an official will be a resident .

Respondent Contentions:-

Tenants filed a revision before the government assailing the orders passed against them. However, the Appellants claim that it was only on 11.12.1964 that they suddenly received a copy of the letter dated 10.07.1964 addressed to Damu Ganapati Tapkir by the Officer on Special Duty, Revenue and Forest Department, Government of Maharashtra, stating that, pursuant to Government Letter 5 dated 01.11.1963, he was to state that the Government was pleased to set aside the order dated 18.04.1961 passed by the Pranth Officer, TalukaHaveli, District Poona the order dated 27.03.1962 passed by the Collector, Poona, in Watan Appeal 6 of 1961; and the order dated 12.06.1962 passed by the Commissioner, Poona Division, in Case No. W.T.N.P.6/33. Thereupon, the Collector, Poona, directed the Mamlatdar, Haveli, to ensure Delivery of possession of the lands to the tenants. Aggrieved by this development and complaining that they were not given notice or a hearing prior to the Government’s decision, the appellants preferred an appeal before the Commissioner, Poona, assailing the Direction of the Collector, Poona, to the Mamlatdar, Haveli, to hand over possession of the subject lands to the tenants. The Commissioner, Poona, rejected their request, vide letter dated 02.12.1964. They then approached the Chief Minister, State of Maharashtra, by way of written representation Dated 11.12.1964. However, they were informed by the Officer on Special Duty, Revenue and Forest Department, Government of Maharashtra, vide Letter dated 30.12.1964, that their representation dated 11.12.1964 could not be considered. Aggrieved by the rejection of their representation under Letter dated 30.12.1964, the appellants filed Constitution. And remands the matter to Government with a direction to rehear the matter after giving opportunity to the petitioners and the respondents to be heard in their defence.

Court Analysis and Judgement:-

It is the contention of the appellants that there was no lease subsisting as on 01.01.1963, owing to the order dated 18.04.1961 passed upon the application made by the legal heirs under Section 5 of the 1874 Act after the death of the original Watandar. They would further contend that as the possession of the Watan lands was actually restored to the legal Heirs on 22.04.1962, the tenants were not even in possession on the appointed date, viz., 01.01.1963. In effect, their argument is that neither a lawful lease was in existence nor were the tenants in physical possession. However, this argument loses sight of the fact that the order dated 18.04.1961 had not attained finality in as much as the tenants subjected it to challenge before the higher authorities and their challenge was still pending. No doubt, the High Court erroneously referred to the ‘misconceived appeal’ filed by them as ‘revisional proceedings’ but not with standing the nomenclature, the inescapable fact remains that the challenge to the initial order dated 18.04.1961 was subsisting as on 22.04.1962, the date of delivery of possession, and such proceedings of challenge concluded in favor of the tenants when their revision was allowed, vide the order dated 03.05.1982. Merely because no stay was granted in such proceedings and, in consequence, the tenants stood divested of actual physical possession, it did not lend any finality to the order impugned in those proceedings and, therefore, the purported termination of the lease still hung in balance.

The argument to the contrary is, therefore, rejected. It appears that during the pendency of this litigation, the subject agricultural Watan lands became part of the extended city limits of Pimpari Chinchwad Municipal Corporation and are presently reserved for Defence Purposes (Red Zone) in the development plans sanctioned by the Government of Maharashtra. In consequence, these lands cannot be alienated without the prior approval of the Government of India and the Government of Maharashtra. While so, we find that both sides have been merrily entering into transactions with third parties to alienate/transfer the subject lands. However, our decision in this case relates back to a time When the subject lands were still agricultural in nature and use and it would have no impact on the present position and the consequences flowing there from. Further, disputes, be it with the appellants or the tenants, are not the subject matter of this appeal and have not been dealt with. All such disputes would have to be addressed independently. Before the appropriate forum in accordance with law, if still permissible.

On the above analysis, we hold that it was not open to the appellants to proceed against the tenants under the provisions of Sections 5, 11 and 11A of the 1874 Act after the death of Balaji Chimnaji More, the Original Watandar, in February/March, 1958. This is because the provisions of the tendency Act were very much applicable to the subject lands by then and more so, Sections 29 and 31 thereof. Therefore, the legal heirs of the original Watandar could not have taken lawful possession of these lands. From the tenants pursuant to the order dated 18.04.1961 passed under Sections 5, 11 and 11A of the 1874 Act. The same was rightly held to be invalid in the revisionary order dated 03.05.1982 and that finding was correctly held to be justified by the Bombay High Court. We also hold that the tenancy was lawfully subsisting on 01.04.1957, i.e., Tillers’ Day, and the Tenants were entitled to exercise their right of statutory purchase of these tenanted agricultural Watan lands under Section 32 of the Tenancy Act in Terms of Section 8 of the Abolition Act, after the exemption afforded by Section 88CA ceased to exist. That right became operational on 27.11.1964, when these Watan lands were regranted to the heirs of the original Watandar. We find no grounds made out, either on facts or in law. The appeal is devoid of merit and is accordingly dismissed.

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Second wife cannot be the legal heir without consent of first wife: Supreme Court.

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The case ,Savitri Bai versus Savitri Bai [S.L.P.(C) No.33563 of 2011] originated with a complaint that Savitri Bai the plaintiff purchases the suit property registered under sale deed. This case was dismissed by the Additional civil Judge later it went for appeal but it was also dismissed. It again went for the second appeal then it was allowed by the High Court of Madhya Pradesh.

In favor of Meghraj the sale deed was written .Savitri bai goes to court and she didn’t receive any judgement because oath which was given by her was not clear. So it was dismissed. She goes for appeal and judgement was given that the will which was written by her husband was not specific and clear. So the case will be reconsidered in court again.

Then the court directed both parties for the current state of things prevailing on the date . The plaintiff delivered the possession but the first defendant too forcibly. After that the first defendant claimed that she neither sold the suit property to the plaintiff nor delivered the possession. As plaintiff was not educated and faith in her family members she has signed the sale deeds unknowingly without her consideration. The trail court has dismissed the suit. It has found that the plaintiff was in stand and there were many contradictions in pleadings. In the first appeal it has known that the execution of the sale deed was of no avail of the suit . So it dismissed the appeal. Then the second appeal by plaintiff then the high court found the court findings .The high court said that the plaintiff was the right owner of the suit property.

Suhadra Bai will be a legal heir. If she signs then only the deed will be sold. But the court declared that the Savitra Bai gets the property.

The plaintiff affixed her signature not only in the sale deeds but also other sale deeds which were executed by her step mother and many people. Once evidence was adduced in terms of Section 68 of the Evidence Act,1872 and requirements prescribed under section 63 of Indian Succession Act,1925.

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Second wife cannot be the legal heir without consent of first wife: Supreme court.

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The case ,Savitri Bai versus Savitri Bai [S.L.P.(C) No.33563 of 2011] originated with a complaint that Savitri Bai the plaintiff purchases the suit property registered under sale deed. This case was dismissed by the Additional civil Judge later it went for appeal but it was also dismissed. It again went for the second appeal then it was allowed by the High Court of Madhya Pradesh.

In favor of Meghraj the sale deed was written .Savitri bai goes to court and she didn’t receive any judgement because oath which was given by her was not clear. So it was dismissed. She goes for appeal and judgement was given that the will which was written by her husband was not specific and clear. So the case will be reconsidered in court again.

Then the court directed both parties for the current state of things prevailing on the date . The plaintiff delivered the possession but the first defendant too forcibly. After that the first defendant claimed that she neither sold the suit property to the plaintiff nor delivered the possession. As plaintiff was not educated and faith in her family members she has signed the sale deeds unknowingly without her consideration. The trail court has dismissed the suit. It has found that the plaintiff was in stand and there were many contradictions in pleadings. In the first appeal it has known that the execution of the sale deed was of no avail of the suit . So it dismissed the appeal. Then the second appeal by plaintiff then the high court found the court findings .The high court said that the plaintiff was the right owner of the suit property.

Suhadra Bai will be a legal heir. If she signs then only the deed will be sold. But the court declared that the Savitra Bai gets the property.

The plaintiff affixed her signature not only in the sale deeds but also other sale deeds which were executed by her step mother and many people. Once evidence was adduced in terms of Section 68 of the Evidence Act,1872 and requirements prescribed under section 63 of Indian Succession Act,1925.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

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