NISSAR AH GANAI Vs. STATE
LAWS(J&K)-2006-3-26
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 31,2006

Nissar Ah Ganai Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THIS petition under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, has been filed for issuance of a writ in the nature of certiorari quashing order dated 6th JanRs.06, annexure A to the writ petition, whereby direction has been given to Tehsildar Agrarian Reforms, Qazigund, to rush to the spot immediately and remove the encroachment, if any, found on spot over land measuring 1 kanal 15 marlas under Survey No. 209, situated at Kurigam including two residential houses. Further, a writ of mandamus is also sought directing respondent No. 2 to conduct an enquiry under law before passing any order under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (hereinafter referred to as the Act).
(2.) THE case of the petitioner is that one Trilokinath, husband of respondent No. 6 -Sheela Devi and father of petitioners No. 4 and 5, was owner in possession of land measuring 1 kanal 15 marlas and two storey house tin roofed situated under Survey No. 209 at Kulibagh Kurigam, Qazigund, Anantnag, Due to the turmoil in the valley, all his kith and kins left the valley leaving Trilokinath at Kilibagn Kurigam, Qazigund, at the mercy of God. The petitioner who is residing in the same village took Trilokinath to his house. It is stated that Trilokinath executed a gift deed of the entire immovable property and put the petitioner in possession of the same. Trilokinath died on 31st DecRs.94. It is further case of the petitioner that Trilokinath was not a migrant, and therefore, the provisions of the Act are not applicable to the property in dispute. It is thus stated that respondent No. 2 without giving any opportunity of being heard issued order of eviction against the petitioner and respondent No. 3, without giving any notice to the petitioner, seized the property aforementioned and dispossessed the petitioner from the same.
(3.) ON notice, objections have been filed by private respondents 4 to 6 and a preliminary objection has been raised that the writ petition is not maintainable. It is pleaded that the petitioner had filed a civil suit before the Munsiff's court at Duroo, which was dismissed. It is admitted that respondents 4 to 6 are the legal heirs of Trilokinath who was one of the co -partner in the joint property which is in dispute. It is further pleaded that Trilokinath had also migrated from valley along with his other family members. The other averments made in the petition have been denied. I have heard learned counsel for the parties and perused the record. Writ petition is admitted and with the consensus of the learned counsel for the parties, taken on board for final disposal.;


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