Advocates:
['BASIT MANZOOR KENG', 'MEENAKSHI SLATHIA', '', 'HUNAR GUPTA CGSC', 'PARKHI PARIHAR', 'HUNAR GUPTA', 'CGSC', 'BHANU SINGH SLATHIA']

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

CR No. 21/2016 (O&M)

Reserved on : 22.08.2019

Pronounced on: 07.11.2019

Sudesh Kumar ….Petitioner

Through:- Mr. Basit Manzoor Keng, Advocate

v/s

Ajit Raj …. Respondent(s)

Through: Mr. B. S. Salathia, Senior Advocate

with Ms. Parkhi Parihar, Advocate.

Coram: HON’BLE MR. JUSTICE RAJESH BINDAL, JUDGE

ORDER

1.

The defendant has filed the present petition challenging the

order dated 04.06.2016 passed by the learned Court below whereby finding

on preliminary issue framed in the suit for partition has been recorded

against the petitioner. The issue reads as under:

<1(b)

Is the plaintiff a co-sharer and entitled to share in the

suit property sought to be partitioned in the lifetime

of his father? OPP=

2.

Learned counsel for the petitioner submitted that the property in

question was allotted to late Kheru Ram father of the petitioner and grand-

father of the respondent. He was in possession thereof as an occupancy

tenant. Kheru Ram died in the year 2003. The land allotted to him on

account of his migration from Pakistan at the time of partition was 51

kanals, 3 marlas. During his lifetime, he constructed three houses. After the

death of Kheru Ram, mutation of inheritance was sanctioned in favour of his

three sons.

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3. Suit was filed by the respondent who is grand-son of late Kheru

Ram seeking partition of the property without there being any right vested in

him to seek partition of the property existing in the name of his late grand-

father. The vagueness of the suit is evident from the fact that he impleaded

all the three sons of late Kheru Ram as defendants in the suit, though was

seeking share only in the property coming to the share of the petitioner, his

father. Total land allotted to Kheru Ram was made subject matter of the suit

whereas out of three houses, only one house was referred to in the plaint.

4. He, further submitted that the Jammu and Kashmir Tenancy Act,

Svt. 1980 (1923 A.D.) (for short 8the Tenancy Act9) deals with issue of

succession of the occupancy tenants. The property is to be inherited by male

lineal descendants. However, the words used therein having not been

explained further, for the purpose of succession/inheritance the parties will

be governed by the provisions of the J&K Hindu Succession Act, 1956

(hereinafter referred to as 8the Succession Act9). Both the laws have to be

harmoniously construed. The same has to be read along with Tenancy Act. If

the provisions of the Section 6 of the Succession Act are considered, grand-

son does not come in Class I legal heirs. If the grand son has to seek share in

the property owned by the grand-father, it can be only if his father is

predeceased.

5.

It was further argued that suit was bad on account of many

defects. The respondent did not have claim against two other sons of late

Kheru Ram though they were also impleaded as defendants in the suit. Any

right vested in late Kheru Ram as allottee of land is to be treated as his self

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acquired property and cannot be termed as a joint Hindu family property in

which any right could be claimed by the grand-son.

6.

He further submitted that even the respondent also admitted that

he is entitled to share in the property of his grand-father in terms of

provisions of Tenancy Act read with the Succession Act. It was the specific

plea raised in the application filed for amendment of the plaint. The

respondent cannot be permitted to back out fr