The jurisdiction of the civil court is not barred by Section 31 of the Administration of Evacuees (Property) Act, 1948, where the title to property is in controversy.

This is a first appeal against the decree of learned District Judge Srinagar dated 20-12-65 whereby he has dismissed the suit of the plaintiff, applicants. The plaintiffs brought the suit for possession of 56 kanals and 15 marlas of land in khewat Nos 77/46 min and 66 min situate in Bhagat Barzala Badgam with the allegation that; the land belonged to them and was in their possession. Raja Mohd. Afzal Khan, who was the Governor of Kashmir in samvat year 1991, wanted to garb the suit property. The plaintiffs had just attained their age of majority and did not know how to safeguard their interests. Under undue pressure and with improper use of his official position Raja Afzal Khan who was defendant 2 in the case exercised fraud and undue influence over the plaintiffs and got this land transferred in favour of defendant 1 who was his brothers wife in exchange of 55 ks and 15 ms. of land situate in village Rabitar Tehsil Khas. The mutations of exchange were got attested .As the transactions were fraudulent and the mutations merely paper transactions, the plaintiffs were still the owners of the land The socalled exchanges were not regular or according to law and therefore the whole transaction of the socalled exchanges was void.

The suit had a chequered career. It was first brought in the court of the City Judge Srinagar. It was returned by him because the valuation was Rs. 1,13200/-. The plaint was then presented to the High Court which ultimately transferred it to the District Judge Srinagar who decided the case as indicated above.

The suit was in forma pauperis.

It appears the defendants in the suit had migrated to Pakistan. An application was made under S 35 of the Administration of Evacuees (Property) Act (hereinafter to be referred to as the Act) to make the Custodian E P. a party to the proceedings. The Custodian appeared. He contested the suit and filed the written statement on llth Bhadon 2009 (Bikrami). The Custodian took the following pleas: There was a valid exchange of land between the plaintiff and defendant 1, The plaintifff had taken possession of the land in Rabitar which they got in exchange for the suit land. Proper mutations were attested. There was no undue influence or misuse of official position by Raja Afazal Khan in getting this exchange effected. The suit was not maintainable. The suit was time-barred. The suit was brought only to fling mud at Raja Afzal Khan. The plaintiffs were estopped from bringing the suit. It was further averred in the written statement that the plaintiffs should sue for the cancellation of the exchange. The defendants were in possession of the land. They had effected improvements worth more than Rs. fifty thousand. When plaintiffs found their erstwhile land having improved considerably they were prompted to file this vexatious suit.

The following issues were framed by the trial court: -

1. Whether on llth Phagon 1991 exchange of property in dispute (45 kanals and 15 marlas) was .got effected by Raja Mohd. Afzal Khan in favour of Noor Ashraf Begum by deceiving the plaintiffs and therefore mutation and exchange of this land was void and not binding on the plaintiffs? OPP

2. Whether exchange of this land was against Land Alienation Act and not binding on the plaintiffs? OPP

3. Whether defendants were in possession of land in dispute since Phagon 1991, but in spite of this exchange being fraudulent and against law, was not binding on the plaintiffs? OPP

4. Whether registration of the deed of exchange was essential and whether because the document was not a registered one, it was not binding on the plaintiffs? OPP

5. Whether the exchange was in essence a sale, but this fact was hidden and was shown as an exchange? What effect has it on the suit? OPP

6. Whether the plaintiffs were in possession of the suit land even though mutation had been effected in the name of defendant 1? OPP

7. Whether at the time of exchange the plaintiffs were majors and had by their free will and consent effected exch