1. Land measuring 5 kanals and 11 marlas covered by Survey no.640 situated at Moza Saderbal, Hazratbal, Srinagar, is the proprietary land of one Imam Din(evacuee).Appellants claim to be in possession of 5 kanals and 11 marlas out of the total land and also claim to have been dispossessed by the Custodian Department on 15.11.1999. Consequently, 3 kanals and 10 marlas have been allotted to respondent no. 2 & 3 by the said department.

2. Appellants herein have filed suit for declaration and Permanent injunction praying therein that they are absolute owners of land measuring 5 kanals and 5 marlas as their possession for continuous period of 12 years has ripened into ownership by prescription. Custodian department had no jurisdiction to evict them. Injunction to the effect that possession be handed over to them in alternative they be paid the compensation after its acquisition by the custodian department.

3. Learned Trial court by virtue of impugned judgment has rejected the plaint in terms of order 7 Rule 11 clause (d) of CPC. Aggrieved thereof instant appeal has been preferred.

4. Mr. S.T. Hussain, appearing counsel for the appellant contends that Section 31 of the Evacuee Administration Of Properties Act 2006 (hereinafter referred to as "Act") is not applicable because the land in question is admittedly evacuee property. The appellants are claiming ownership on the basis of adverse possession. Their contention of being owners by adverse possession cannot be settled by Custodian under the proceedings initiated under Section 8 of the "Act". The suit was not barred. Matter was required to be settled during the regular trial. In support of his contention learned counsel relied on various judgments.

5. Mr. Bala, appearing counsel for the Custodian department painfully argued that there is no question of ownership because the land immediately after the migration of Imam Din is vested to the Custodian Any person in possession thereof has a character of unauthorized possessor. In support of his contention, referred to various provisions of the Act.

6. Considered the rival submissions. Admitted position as emerge from the pleadings is that actual owner Imam Din, is an evacuee so the property is vested in the Custodian from the date evacuee has left the State. Various provisions of the Act such as Section 2, Section 3, Section 5, Section 6 to 8 are to be read conjointly alongwith Section 9 of the CPC. The position of the appellants of being in possession of the evacuee property was unauthorized. In this connection, it is quite apt to reproduce Section 2 clause 5 (g) of the Act.

"Unauthorized person" means any person (whether duly empowered in (his behalf by the evacuee or otherwise) who, after the [14th day of August, 1947], has been occupying supervising or managing the property of an evacuee without the approval of the Custodian. "

7. The definition of "unauthorized person" is quite obvious. So the appellants were the unauthorized persons as they were occupying property without approval of the custodian. To claim title on the basis of prescription is barred by Section 3 of the "Act" which reads as under: -

"3. Act to over ride other laws --

(1) The provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding any thing inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any such law.

(2) For the removal of doubts, it is hereby declared that nothing in any other law controlling the rents of, or evictions from, any property shall apply or be deemed ever to have applied to evacuee property.]

8. Looking at the scheme of the "Act", property of the evacuee is to be administered by the department and it is only with the object of protecting the evacuee property, Section 3 of the "Act" has been enacted which provides that all other acts shall not apply to the extent those are inconsistent with the provisions of the "Act". So if a person claims

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