JUDGMENT :

1. By way of instant writ petition, the petitioners seek following relief:

(i) A writ, order or direction including one in the nature of Mandamus commanding upon the respondent Department not to claim the said property as an Evacuee Property and also the Respondent-Department be restrained from interfering into the lawful ownership and possession of the property of the writ petitioners;

(ii) Further a writ order or direction including one in the nature of Certiorari/Mandamus declaring the notification dated 11th October 1980 issued under Section 6 of the Evacuee Property Act, as illegal or in the alternative the Evacuee Department be directed to withdraw the notification as the Evacuee Shaban Dar has already died at village Sambora in the year 1992 and as such continuation of the said property as an Evacuee Property after the death of the Shaban Dar be declared illegal and the property be allowed to continue with the writ petitioners;

(iii) Any other writ, order or direction which the Hon’ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioners and against the respondents.

2. Briefly stated facts of the case on the basis of which petitioners are seeking the relief are that the petitioners filed the instant writ petition with the request that the father of petitioners Aziz Dar was in possession of immovable property in the shape of land measuring 28 Kanals situated at village Samboora. The revenue extracts not only of Kharief 1971 but prior to kharif 1971 also depicts the same. After the death of their father, writ petitioners become owner of the property as per the law. It is contended that the last settlement has been conducted in the village, however, the whole village made an application for fresh settlement and, accordingly, it was ordered that fresh settlement as per law be conducted. During the settlement, the Revenue officials have reiterated that the property is still evacuee property although the Revision Petitioners were given impression by the Custodian that the appeal has been disposed of in their favour. When the petitioners had approached the Respondent- Custodian for issuance of the copies of last orders passed in the appeal, the same was not provided to them on the ground that the record was damaged during September 2014 floods, which constrained petitioners to file the present writ petition.

3. It is further contended that the property has been declared as evacuee property without any proper verification and survey. It is a matter of fact that Shaban Dar was present in the valley at the time of issuance of notification under Section 6 of the Evacuee Property Act. After issuance of notification, Shaban Dar had claimed himself to be the owner of the property. It is further contended that there is no evidence, proof or material available with the respondents to hold that Shaban Dar had ever migrated before or after 1st day of March 1947 from the State to any place outside the territories now forming part of India. On the other hand, positive proof in the shape of letters written by Shaban Dar himself were produced before the respondent-authorities showing that Shaban Dar was within the territory of India, but even then without any basis, notification under Section 6 continued. The father of petitioners had filed application under Section 8 of the Evacuee Property Act, before the Custodian, Evacuee Property, Kashmir, within the stipulated time period, which was dismissed in terms of order dated 23.07.1981. The said order was challenged through the medium of appeal before the Custodian General, J&K, Srinagar, which was rightly accepted.

4. Respondent nos. 2 and 3 have filed the objections, wherein it is stated that as per records available, the department vide notification no. CEP 6/79-80/1916-17 dated 14.10.1980 notified one house and land measuring 28 kanal comprising under Khasra nos. 318, 414, 539, 543- min, 1081-min, 1191-min, 1136-min, 11