Continuous possession and acknowledgment by the Custodian Department are crucial in determining property rights in cases of dispute.

JUDGMENT :

1. The petitioner was arrayed as respondent No.3 in the Revision Petition which was preferred by Naeem Aijaz Mir and the order dated 20.09.2004 was passed by the Jammu and Kashmir Special Tribunal, Jammu (hereinafter referred to as ‘Tribunal’) which is impugned in the present petition, whereby, the orders of the allotment of the shop in favour of the petitioner herein was held to be arbitrary, as the same was passed without hearing the petitioner therein (respondent herein) being malafide, bad and against the principle of natural justice and was, accordingly, set aside.

2. The brief facts arising in the instant petition are that the house in question consisting of two portions originally belong to one Nathu Darzi, who admittedly died issueless many years before 1947 and after his demise one Sh. Abdul Khaliq, his real brother came into possession of the property in question and subsequently the said house came into possession of one Mehmood Ahmed who has sold one portion of the said house to Mr. Sardari Lal and another portion to Smt. Pushpa Rani by virtue of Sale Deed dated 12.12.1970. The further fact of the matter is that at relevant point of time, the house was a single storey which is corroborated from the bare perusal of the sale deed and after coming into possession, the family of the petitioner which includes the parents of the petitioner, started residing in the said house prior to 1985. The further case of the petitioner is that in the year 1986 and 1987, the petitioner’s father has constructed a three storey building after demolition of the earlier structure and a shop was also constructed at place of existing room at that point of time, which according to the petitioner is a shop in question and is the subject matter of the instant petition.

3. The learned counsel appearing on behalf of the petitioner, Mr. N.A Choudhary further submits that the house and the shop have remained in continuous possession as owners by the petitioner’s family which can be gauged from a bare perusal of the report of the Field Inspector and the concerned Custodian has also verified the possession of the petitioner’s father over the said house and the shop in question.

4. The further fact of the matter is that the petitioner and his family were not aware of any such dispute regarding the ownership with the erstwhile owners of the house in question and was also not aware that a litigation vis-à-vis the property in question has even gone upto the Apex Court. Even a writ petition also came to be preferred in this regard which was registered as OWP No.982/1988 filed by Sardari Lal and others for cancellation of the declaration passed by the Custodian. The further case of the petitioner is that the parties thereafter have entered into a compromise with the Custodian Department and the aforesaid writ petition stood withdrawn on 31.10.1994 with a liberty to the petitioners to approach the Court again if extended or fresh cause of action accrues to them.

5. The learned counsel further points out that the house has been purchased by the petitioner’s father from Smt. Pushpa Rani consisting of one storey and subsequently, the said house has been rebuilt by the petitioner’s father upto three storey and the shop in question was also being run by the petitioner being an unemployed youth for which the petitioner has also obtained a loan from Jammu and Kashmir Bank.

6. The further fact of the matter is that in the year 1994, the petitioner along with father of the petitioner have came to know that a portion of the house has already been declared as Evacuee Property and the erstwhile owners have entered into a compromise with the Custodian Department and thus, the said property ought to have been regularized in favour of the occupants i.e., the petitioner as well as Sardari Lal and in the aforesaid backdrop, the petitioner has agreed for getting the said property regularized in his name.

7. The specific case of the petitioner is that in the year 2000, o