Jammu & Kashmir High Court
Riaz Jan Mast vs Asif Javeed And Anr. on 9 January, 2002
Equivalent citations: 2003(2)JKJ143, AIR 2002 JAMMU AND KASHMIR 85
ORDER Syed Bashir-ud-din, J.
1. Respondents sons of Javeed Rasool moved an application in the Court of District Judge, Srinagar for possession of items of property specified in the application against their uncle Javeed Riyaz under Succession (Property Protection) Act, 1977, here-in-after for short "Act". The District Judge Srinagar on the basis of material on record on the belief that the applicant's prima facie, as successors to their father Javeed Rasool, did have interest in the specified Matrooka Property and in case they are left to ordinary course of regular suit, material prejudice would be caused to them and on satisfaction of other requirements, issued notice and proceeded to determine summarily their right to possession. On enquiry.
after considering the pleadings, copies of the documents and other material on record the District Judge Srinagar came to the conclusion that the petitioners are entitled to the possession and have an immediate right to possession of residential/commercial properties situated at Hari Singh High Street, except the shop housing the business concern 'M/s. Metal Mart'. L d. District Judge further held that with regard to other specified items of property, the petitioners have no right to exclusive possession being injoint ownership of petitioners late father and his brother, the respondents. These properties, the Judge concluded cannot be said to be held without lawful claim. Therefore, settling of possession with regard to these items has been declined. This pronouncement of the District Judge vide his order dated 29-2-2000 is under challenge in this revision.
2. At the out set, Respondent's counsel raises objection to the maintainability of the revision on the ground that the District Judge Srinagar in terms of provisions of the Act is not a Presiding Officer of Civil Court, but discharges his functions as Persona Designata. As the Act is a special Act, therefore, provisions of general Act have to give way to the provisions of the Special Act, it is further submitted that Sections 17 and 18 of the Act specifically provide that the decision as to settling of the actual possession shall be final not amenable to any appeal or review. The application of the powers of revision of the High Court are necessarily excluded.
3. The counsel for revision petitioner submits that the discharge of duties and functions of District Judge under the Act are out and out Judicial in nature and the District Judge answers the description of Presiding Officer of a civil Court, as the District Judge is Presiding over a Civil Court, thereby negating the concept of Persona Designata. This position is made clear by Section 18 of the Act which specifically gives finality to the decision of settling the actual possession and specifically mentions that It Is to be deemed as "decision of the Judge".
4. The counsel also submits that only because Section 17 of Act saves the right of party to bring a regular suit and the decision under Section 18 of the Act is only with regard to settling of the actual possession, it cannot be said that the revisional, powers under Section 115 CPC are to be excluded.
The question of general provisions giving way to the Special Provisions in the context of CPC and the Act does not arise.
5. The legislative Intent of barring Appeal and review to the aggrieved person alone is manifest. In case the legislative intent to lay an embargo on the exercise of powers of revision had been there then while incorporating embargo on appeal and review, the exercise of revisional powers would have been as well barred.
6. A Full Bench of Punjab Chief Court In 1882 Pun Re 66 (FB) with title Gorakh Nath v. Bishember Nath, while examining the provisions of the Succession (Property Protection) Act in the context of Revision and Section 141 of Civil Procedure Code, came to the conclusion that the order of settling the actual possession in summary proceedings by the District Judge under the Succession (Property Protection} Act is-amenable to the jurisdiction of the High Court. The learned Single Judge of this Court in Khurshid Ahmad v. Mohd. Bashir Ahmad, AIR 1971 J & K 139 also held the same view after relying on AIR 1938 Lah 753 and 1882 Pun Re 66 (FB) (Supra).
7. In Ram Charan Das v. Hira Nand, AIR 1945 Lahore 298, F.B. observed :--
"..........Mr. Puri for the respondent urges that in view of the fact that another remedy is open to the petitioner by way of a regular suit, this Court should not exercise its revisional jurisdiction in his favour. It is by no means an inflexible rule that where another remedy by way of a regular suit is open, revisional jurisdiction should under no circumstances be exercised. Further I do not think that another suit would afford the petitioner in the present case an equally efficacious remedy."
8. Majid Pir v. Mohd. Pir, 1980 J&K LR 488, is another authority of a learned Single Judge of this Court to entertain revision against an order of the District Judge passed under the Act,
9. The contention of conflict between the specific provisions and General Provisions of law Is not even ex facie noted in this case. As already observed the provisions of Section 115 of the Civil Procedure Code are applicable to this case under Section 141 C.P.C. Besides, independently of the provisions of Section 115 CPC, the power to revise the order is available to this Court even under Section 104 of Constitution of Jammu and Kashmir. The specific provision has to prevail over the General Provisions where both the provisions are applicable in the same field. The General Provisions would apply to the cases not covered by Special provisions. The decision of the Judge with regard to settling the actual possession has to be governed by the Act and there being no specific provision, even in the nature of an embargo, with regard to the exercise of revisional powers, therefore, the general provisions would apply and the question of conflict does not arise in this case.
10. The authority cited J. K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P., AIR 1961 SC 1170 which turns on its own facts is not applicable to this case.
11. In the context of there being no express provision in the Act barring a revision Ld. counsel for petitioner cites Sham Sunder Agarwal & Co. v. Union of India, AIR 1996 SC 1321 as authority to hold that the High Court in such an eventually is to exercise powers of revision in conformity with provisions of Section 115 of CPC. The Supreme Court, while dealing with provisions of Arbitration Act of 1940 including Section 39, on the question of exercise of revisional powers, observed :--
"26. In our view, a revisional application before the High Court against an appellate order passed under Section 39 of the Arbitration Act is maintainable. There is no express provision in the Arbitration Act putting an embargo against filing a revisional application against appellate order under Section 39 of the Act. The Arbitration Act has put an embargo on filing any second appeal from appellate order under Section 39 of the Act. The Arbitration Act is a special statute having limited application relating to matters governed by the said Act. Such special statute, therefore, must have its application as provided for in the said statute. The revisional jurisdiction of the High Court under the Code or under any other statute therefore shall not stand superseded under the Arbitration Act If the Act does not contain any express bar against exercise of revisional power by the High Court providing exercise of such revisional power does not mitigate against giving effect to the provisions of the Arbitration Act...........
28. It may be stated that even if a special statute expressly attaches finality to an appellate order passed under that statute. It has been held by this Court in the case of Hari Shankar, AIR 1963 SC 698 (supra) that such provision of finality will not take away revisional powers of the High Court under Section 115 of the Code of Civil Procedure. There is also no such express provision in the Arbitration Act attaching finality to the appellate order under Section 39 of the said Act. As already indicated, only bar under Sub-section (2) of Section 39 is of a second appeal from an appellate order under Section 39. The impugned order of the High Court upholding maintainability of revisional application under Rule 36A of the Rules, therefore, is justified and no interference against such decision is warranted.........."
For what is stated above, the preliminary objection to the maintainability of the revision petition is devoid of merit, hence rejected.
12. The Ld. counsel for the petitioner next submits that the impugned order is bad in as-much-as the District Judge has not complied with the Sections 3 and 4 of the Act. The Judge has not enquired to find strong reasons for belief that the party in possession having taken forcible possession or being in wrongful possession, when the respondents had no lawful right and the Revision petitioner is materially prejudiced in case left to ordinary remedy of a regular suit. The counsel further contends that the application is not bona fide. The satisfaction of the Judge as to the existence of said belief is the basis for determination of right to possession summarily and for delivery of the immediate possession, of course, subject to regular suit.
13. The record shows that after the application was moved before the Judge, the Judge has examined the record and also perused the material. On the basis of the record, the Judge has stated that he has reasons to believe that the petitioners have prima facie interest in the Matrooka property left by their father as his heirs and successors in interest. The Judge has also recorded that material prejudice would be caused to the petitioners to the proceedings before him in case they are left to the ordinary course of regular suit. It is only on this satisfaction which in a way also presumes moving of application bona fide that the cognisance has been taken and the enquiry made. The Judge, after notice and following due procedure, has determined summarily the right to possession and vide the impugned order ordered delivery of possession of one item, out of items of property as mentioned above while declining the delivery of possession in respect of other items of the property. The record also shows that the Judge has been aware of the legal position and application of law to the case. It is only immediate right of possession that the judge has to determine in the summary proceedings, leaving the claims of joint ownership as co-sharers of the persons in possession involving detailed questions of law and fact, to be determined on a regular civil suit.
14. The revisionist party, through counsel, objects to the part of the final impugned order settling the actual possession of properties situate at Hari Singh High Street, comprising of two houses with shops, staircase, store and shed. The counsel's contention is that this property has come to the revision petitioner as owner for half of the property by "Tamleeknama" dated 15-8-1975 registered on 23-8-75. Once 'Tamleeknama", was executed, petitioner was given full ownership rights and also put in possession thereof. Therefore, the question of transferring and giving the property to respondents father by sale deed, not standing revocation of "Tamleeknama", does not arise and therefore, petitioners before the judge in the proceedings under the Act cannot claim the property through the father. This aspect of the matter has been dealt with in detail by the District Judge. The District Judge, while noting execution of Tamleeknama', contents thereof, subsequent revocation of this Tamleeknama', execution of the sale deed in favour of respondents' father to this revision, the Tamleeknama' not having been acted upon and continuance of possession with the respondents father, observed :--
"........ However, certain important circumstances attending it have to be noticed. First, while the original executant of "tamleeknama" claimed it to have never been acted upon and super imposed a revocation deed thereupon just after two years, none of the beneficiaries i.e. the petitioner's father and respondent resisted, and allowed it to be so; Secondly, when seven years after the revocation deed and just two years before this the owner who died in 1996, executed sale deed of 16-9-1994 purporting to transfer this property to petitioner's father, the respondent did nothing to challenge it; and thirdly, while subsequent to said sale deed, the petitioner's father enjoyed the property for the two years till his death; the respondent did not try to annul or avoid the sale deed. All these circumstances, coupled with materials showing that petitioner's father actually resided in this property, amply suggest that petitioners as undisputed heirs to their deceased father are entitled to the possession thereof and have an immediate right to its possession. It may however be cleared that this property does not include the shop housing the business concern "M/s Metal Business Concern" Metal Mart situated at Hari Singh High Street; residential premises "Arzoo House" situated at Gogjibagh; and shop situate at Zainakadal."
As regards the other items of the properties, catalogued as "A", "B", "D" and "F". The claim of petitioner to actual possession under the Act has not been found merited and left to be determined under regular suit. Seen thus, the conclusion of the District Judge that summarily on enquiry he has come to a conclusion that the petitioner's before him have established immediate right to possess the property at Hari Singh High Street, cannot be said to be vitiated or beyond pale of law. The contention, and the submission that in view of pendency of a regular suit in the matter the proceedings under the Act would not apply, cannot be accepted. The provisions of the Act are special and summary in nature and are designed to meet a situation where persons claiming right by succession to the property or portion thereof are deprived of the possession by any person or such deprivation by forcible means is apprehended. By its very nature, the enquiry to be held is summary in nature and the sole question to be addressed is to pass an order settling the actual possession without creating an impediment to bring a regular suit. Merely because remedy of regular suit is provided it by no means can be taken to debar initiation of proceedings, holding of enquiry and passing of final order in settling the actual possession under the provisions of the Succession Property Act. The contention that regular suit in the present case would provide equally an efficacious remedy is no ground to stall the application of statutory provisions of the Act. The authority cited as Khurshid Ahmad, (AIR 1971 J & K 139) (supra) is based on its own facts and circumstances. By the observation of the learned Single Judge, that when a civil suit relating to the property in question is instituted, then it would be meaningless to hold parallel enquiry under the provisions of the Succession Act, cannot be held to conclude that when a regular suit is pending no proceedings under any eventuality can be taken under the provisions of the Act. After all by no process of judicial Interpretation can the operation of provisions of an Act be placed under embargo. The Courts have hardly any role to enter the field of Legislation which is an exclusive preserve of the legislature. The interim orders passed in the suit (may be by a Munsiff cannot bar the District Judge to proceed and decide the matter under the provisions of the Act. The observation of the District Judge that obtaining order of injunction from a Munsiff in the facts and circumstances of the case is nothing but a contrivance of litigative persistence to entangle the adversary, cannot in the facts and circumstances of the case, be said to be an overstatement.
15. In Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336 it is observed (Para 7) :--
"It Is not open to the High Court to question the findings of fact recorded by a subordinate Court in the exercise of its revisional jurisdiction under Section 115 of the Code which, it is well settled applies to cases Involving questions of jurisdiction, i.e. questions regarding the irregular exercise or non exercise of Jurisdiction or the illegal assumption of jurisdiction by a Court and is not directed against conclusion of law or fact in which questions of jurisdiction are not involved."
16. In M/s. D. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh. AIR 1971 SC 2324, the Supreme Court, while dealing with exercise of revisional jurisdiction by High Court under Section 115 of CPC, observed (Para 7) :--
".......The mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Council as far back as 1984 in Raja Amir Hassan Khan v. Sheo Baksh Singh, (1883-1884) 11 Ind App 237 (PC). The Privy Council again pointed out in Bala Krishna Udayar v. Vasudeva Ayyar, 44 Ind App 261 : AIR 1917 PC 71 that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not Involved. This view was approved by this Court in Keshar Deo v. Radha Kissan, 1953 SCR 136 : AIR 1953 SC 23 and has since been reaffirmed in numerous decisions."
17. It is seen in this case that the conclusion of the District Judge, on facts and law, do not involve any question of jurisdiction. It is not the case of exercise of Jurisdiction not vested in District Judge by law or his failure to exercise jurisdiction or having acted in the exercise of his jurisdiction illegally or with material irregularity. It is not even a case of failure of justice. The impugned order is not vitiated in law. It does not suffer from any jurisdictional error.
18. In result, the revision petition cannot succeed on merits and is, accordingly dismissed. With the result the impugned order of the District Judge is left intact for follow up within the para meters of law laid down by the Succession (Property Protection) Act, 1977.
19. Inform Court below of this order.
20. Send back the record. Disposed of.