The main legal point established in the judgment is that the District Magistrate must conduct a proper enquiry before issuing an eviction order under the Jammu and Kashmir Migrant Immovable Property Act, and failure to do so renders the order unsustainable in law.

JUDGMENT :

1) The petitioners, who happen to be the legal heirs of original petitioner, Shri Ghulam Nabi Ganai, have filed the instant petition challenging the order passed by respondent No.3, whereby the said authority, on the basis of communication No.Div.Com/MLA/ MIG/MISC/10/2017 dated 25.08.2017, addressed by respondent No.2, issued a direction to respondent No.4 to handover possession of the land claimed by private respondents No.6 to 8 in favour of the rightful owner. A further direction asking respondent No.2 not to dispossess the petitioners from the property, which is subject matter of the writ petition, has also been sought.

2) The case set up by the petitioners is that One Deena Nath Bhat agreed to sell property measuring 09 kanals and 03 marlas falling in Khasra Nos.5270, 544, 538, 539, 696, 530, 545 and 546 along with Shamilat Deh land measuring 05 kanals of Village Waskura Tehsil Ganderbal to original petitioner for a consideration of Rs.86,000/. It has been claimed that Shri Deena Nath received a sum of Rs.11,000/ and the balance amount was to be paid to him at the time of execution of the sale deed. The document/receipt in this regard is stated to have been executed by Deena Nath Bhat, the predecessor-in-interest of private respondents, on 27.09.1990.

3) It has been submitted that Shri Deena Nath Bhat migrated to Jammu where he passed away before execution of the sale deed. According to the petitioners, he was survived by his second wife, namely, Lalita Shouri and daughter Phoola Devi. From his second marriage, one Kakaji, who was born to Lalita Shouri out of her first wedlock, was adopted by Deena Nath Bhat. Besides this, Teja Devi, Rita Devi and Pyari Devi, happen to be the daughters of Deena Nath Bhat from his first wedlock. It is claimed by the petitioners that after the death of Deena Nath Bhat, his two sons-in-law, namely, Makhan Lal Bhan and Avtar Krishan Bhat, who were beneficiary of a will of Deena Nath Bhat, executed an irrevocable power of attorney dated 10.05.2001 in respect of land in question in favour of the original petitioner Ghulam Nabi Ganai. This was done on 10th May, 2001. It is the further case of the petitioners that adopted son of Deena Nath Bhat, namely, Kakaji, as also Rita Devi, daughter of Deena Nath Bhat, born out of his second wedlock, executed an agreement to sell in respect of 03 kanals of land in favour of the original petitioner who paid a sum of Rs.1.00 lac as sale consideration. It is further submitted that even private respondents No.7 and 8 also executed a receipt for an amount of Rs.1.00 lac on 29.01.2001, whereby they agreed to sell their share of 03 kanals to the original petitioner.

4) According to the petitioners, private respondent No.6 filed a suit before the Court of Munsiff, Ganderbal, against private respondent No.7, seeking relief of declaration and injunction and during pendency of the said suit, a compromise was arrived at by the legal heirs of deceased Deena Nath Bhat, whereby they agreed that possession of whole of the estate left behind by deceased Deena Nath Bhat shall remain with the original petitioner who would have to pay an additional amount of Rs.2.50 lacs. Rita Devi, Lalita Shouri and adopted son, Kakaji, are stated to have executed separate affidavits admitting therein receipt of Rs.2.50 lacs and they have further undertaken that the possession of the original petitioner on the land in question is not forcible. It has also been submitted that respondent No.6, who has not migrated, has got mutation No.968 dated 31.08.2006, attested in favour of daughters of deceased Deena Nath Bhat and his wife Lalita Shouri excluding the adopted son Shri Kakaji. The aforesaid mutation has been challenged by Kakaji before Additional Commissioner, Kashmir, and in those proceedings an order of status quo has been passed. The original petitioner is stated to have filed an application for impleadment in the aforesaid proceedings before the Additional Commissioner, Kashmir.

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