IMPORTANT POINT
– Till alienee receives possession of property, it is deemed to continue in custody and possession of District Magistrate.

Badar Durrez Ahmed, C.J.—This appeal has been filed against the order dated 31.08.2015 passed by a learned Single Judge of this Court in OWP No. 1221/2013. The said writ petition was filed by Farooq Ahmad Shah (respondent No. 7 in the present appeal).

2. By way of the said writ petition, a challenge was made to the order dated 12.08.2013 which had been passed by the District Magistrate (Anantnag) pursuant to directions of this Court in OWP No. 345/2010 and in purported exercise of powers conferred under Section 5 of the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales Act) 1997 (hereinafter referred to as ‘the said Act’). By virtue of the said order dated 12.08.2013, the District Magistrate, (Anantnag) ordered the removal of encroachment of whatsoever kind and to get the encroached upon land freed and handed over to the lawful purchaser after obtaining genuine documents of title. The Tehsildar (Anantnag) was authorized to execute the said order. The said order dated 12.08.2013 is set out hereunder:-

“OFFICE OF THE DISTRICT MAGISTRATE ANANTNAG

ORDER

Whereas, one Basharat Ahmad Sofi S/o Sonaullah sofi R/o Khudwai approached this office through an application stating therein that he has purchased migrant land and after obtaining proper permission of alienation under the provisions of J&K Migrant Immovable property. Preservation, Protection and Restraint on Distress Sale Act, 1997 and accordingly executed a proper Sale deed which was affected under a mutation No: 9966, but on the spot one Farooq Ahmad Shah S/o Gh. Ahmad Shah R/o Kacchachkoot at present Anantnag and Farooq Ahmad Waza S/o Mohd Ramzan Waza have un-authorizedly encroached upon a major portion of the said land.

Whereas, in order to ascertain the factual position of the case the Tehsildar Anantnag was asked to have a factual spot position reported with reference to records.

Whereas, report from the revenue agency shows that the complainant has purchased 17 ½ marlas of land bearing survey No: 2109 of Qasba Baghat out of which Farooq Ahmad Shah has grabbed portion of 40x61 feet and Farooq Ahmad Waza portion of 15x22 feet on the pretext that they too have purchased some land from the migrant which also is part of same Khasra Number.

Whereas, after completing codal formalities/issuing notice an eviction order under the provisions of MIP Act was issued vide this office No.DCA/MC/09/813-17 dated 02.01.2010.

Whereas, this eviction order was yet to be executed, the Hon’ble High Court in OWP No: 345/2010 issued order for maintaining Status-Quo. Thus the process was accordingly stopped in compliance of the direction of the Hon’ble Court.

Whereas, the Hon’ble High Court on 07.02.2013 disposed of the petition, operative part of which reads as under:-

“The impugned order is set aside. The Dy. Commissioner, Anantnag is directed to constitute a team of Revenue Officers who would conduct demarcation of land of the petitioner and respondent No. 6 in presence of the said parties. The Dy. Commissioner thereafter to pass orders in accordance with law in the light of report. The aggrieved party will have right to challenge the order passed by the Dy. Commissioner, Anantnag. Till fresh orders are passed by the Dy. Commissioner, Anantnag after obtained the report of demarcation, status quo in respect of the structures on spot shall be maintained. The Dy. Commissioner to initiate and conclude the enquiry preferably within four week from the date”

Whereas, pursuant to the directions of the Hon’ble Court, a team of Revenue Officers/Officials was constituted Vide order No: 189-99/DCA/MC dated 29.05.2013 for demarcating the land in presence of the parties and furnish factual report. To ascertain the claims and counter claims of the parties they were summoned by the team head on the spot and a proper demarcation was conducted by the team, with reference to revenue records and the area/quantum of land purchased by them.

Whereas, an opport