Srinagar: The J&K Special Tribunal has upheld an order by Custodian General dismissing a claim laid by six persons over 15 kanals of evacuee land at Baghat Barzulla here.
While dismissing the claim, the chairperson of J&K Special Tribunal, Sonali Kumar, upheld notification issued by Custodian Evacuee Property on October 31, 1953 and February 17, 1969 regarding declaration of land as evacuee property.
Mohammad Dar, Mohammad Shafi Tantray, Mohammad Ramzan Tantray, all residents of Baghat Barzullah , Akbar of Hyderpora , Ahad Rather of Rawalpora Srinagar and Ghulam Hassan Rather (Attorney) had filed a petition before the Special Tribunal, seeking a review of an order by Custodian General on 27 October 2008, dismissing their claim over 15 kanals and 1 marla of evacuee land.
As per the brief facts of the case, as recorded in its order by the Special Tribunal, the petitioners claim that land measuring 44 kanals and 10 marlas comprising survey no. 892/828 (3 kanals and 3 marlas), 808 (11 kanals), 903/824 (14 kanals and 2 marks), 904/827 (9 kanals and 18 marks ) and 528 (5 kanals) situated at Baghat Barzulla belonged to Jalal-ud-din and Barkat Ali in the proportion of two shares and one share respectively. This, they said, is except 11 kanals (under survey no. 808) belonging to Jalal-ud-din and Barkat Ali in equal proportions.
The land owner Barkat Ali as such was recorded owner of land measuring 15 kanals and 1 marla. The land owner Jalal ud din had become evacuee in terms of the provisions of EP Act 1949 with effect from March 1, 1947 to August 14, 1947 while as Barkat Ali did not become evacuee as he was not alive in 1947 but had died in 1942 at Udhampur, they said.
On the other hand, the respondents—Custodian General Evacuee property (J&K) and Custodian Evacuee Property (Kashmir)— contended the claims by petitioners, maintaining that land has been duly notified by the department under section 6 of the J&K Evacuee (Administration of Property) Act in the name of Jalal-ud-din and Barkat Ali in the year 1969 vide notification (No.6101/HC).
“I have heard both the parties at length and have also perused the records available on file. From the perusal of the records, it is clear that the property in question was duly notified by the Custodian department under section 6 of the J&K Evacuee (Administration of Property) Act in the name of Jalal-ud-din and Barkat Ali in the year 1969,” the Special Tribunal said.
Further after issuing of the notification, the Tribunal said, the petitioners should have preferred a claim before the Custodian Kashmir under section 8 of the Act for the de-notification of the land in case they had any interest or right in the same.
Records further reveal that the land was placed under the managership of Mrs. Shahmiri by the department, the Tribunal said.
“Later on, the mangership of Mrs Shahmiri was cancelled by the department and she was directed to surrender the possession.”
However, in order to retain the possession of the land, Tribunal said, she first approached the Custodian for de-notification, claiming that the evacuee before migration to Pakistan had orally gifted the land to her.
Failing to establish the case on this count, the Tribunal observed, Mrs Shahmiri claimed allotment of property on the ground that she was immediate heir of the evacuee. However she failed to establish this contention also, the Tribunal said.
For want of documentary evidence, the Tribunal also did not found any substance in the claim by petitioners that Barkat Ali had died in Udhampur before 1947 and as such was not evacuee.
In the light of the facts, the Special Tribunal dismissed the review petition and vacated stay order granted by it. It also returned records to court below for follow up action in this regard.