Jagnarayan v. Kamla Prasad — 1985 DIGILAW 638 (ALL)

JUDGMENT M.M. Gopal, Member - This is a second appeal against the judgment of Additional Commissioner dated 14.10.1966 by which he allowed the appeal and set aside the judgment and decree of the trial court dated 17.6.1966 in a suit u/s 229-B of U.P.Z.A. & L.R. Act, by which the trial court dismissed the suit of plaintiff. 2. Heard the learned counsels and perused the file. 3. The facts of the case are that in respect of plots no. 219/1 area .50 and no. 25 area 43, a suit was filed by Chautura (Father of Kamla Prasad) against Hukum Singh (Father of Vishwanath father of present appellant Jagnarayan) with a prayer of the declaration of bhumidhari rights over the land in dispute. Plaintiff alleged that Rajjak etc. (4 brothers) executed a sale deed in his favour on. 14.12.1954 of ?rd share. The remaining ?rd share of Karim Ullah and Jasim Ullah (who went to Pakistan) was transferred to the plaintiff by the Evacuee Property Manager on different dates i.e. 23.7.1958 and 1.8.1960, sale certificates were also granted, hence the plaintiff became sole bhumidhar of the whole area. Written statement was filed by Hukum Singh on 20.1.1962 denying the claim of the plaintiff, inter alia alleging that he is in possession over the land in suit since long and has acquired sirdari rights and later on he also acquired 'bhumidhari sanad'. It is also alleged by the defendant that the plaintiff fought out the case in the custodian courts and lost the same ; hence the suit is barred under Section 46 of the Administration of Evacuee property Act. On 17.6.1966 the trial court dismissed the suit and held that the defendant is recorded in 1359 fasli, he acquired sirdari rights, the sale deed in favour of the plaintiff was not acted upon and the judgment of the custodian court became final. On 14.10.1966 additional commissioner allowed the appeal and thus plaintiffs suit was decreed. 4. Against the aforesaid judgments a second appeal has been filed in the Board of Revenue and that was finally allowed on 17.10.1975. The second appeal was allowed and the judgments of both the courts below have been set aside on the ground that the revenue court had no jurisdiction to adjudicate upon the conflict of title, because the proceedings in the revenue court were barred under Section 46 of the Evacuee Property Act. The second appeal was allowed and the judgments of both the courts below have been set aside on the ground that the revenue court had no jurisdiction to adjudicate upon the conflict of title, because the proceedings in the revenue court were barred under Section 46 of the Evacuee Property Act. A writ petition was filed against the judgment of the Board of Revenue in the High Court and the Honble High Court allowed the writ petition on 3.8.1982, set aside the judgment of Board dated 17.10.1975 and remanded the case with the direction that it should be seen how much property was of the custodian and how much out of it and then to decide the case. 5. Now before proceeding with the merits of the appeal it should be not out of place to mention here some facts concerning the orders and other transaction in respect of evacuee property. On 24.7.1959 Deputy Custodian Lucknow permitted Hukum Singh to have bhumidhari Sanad in respect of the evacuees share on 18.4.1960. Assistant Custodian General dismissed the revision (but has not cleared the share of the parties). Two bhumidhari Sanads were granted on 18.4.1960 one in respect of ?rd share in plot no. 25 area 48 and the other in respect of 1/9th share of plot no. 219/1 area .17 to the defendant. The sale certificates dated 23.7.1958 and 1.8.1960 in respect of ?rd share of Karim Ullah and Jasim Ullah, Evacuees were granted by the Evacuee Property Manager to the plaintiff. The relevant pedigree in this case is as follows :- 6. Now there are two main questions to be decided in the present appeal. Firstly what is the share of the evacuees and the dispute concerning that share between the parties and secondly what is the position of the parties in respect of remaining portion of the land. 7. So far as the question of evacuee property is concerned and the shares of the evacuees Karim Ullah and Jasim Ullah are concerned there is practically no dispute. These two persons are evacuees. Their share i.e. ?rd was taken by the Custodian Evacuee Property. It is clear from the sale certificates and also from the bhumidhari Sanads dated 18.4.1960 which specifically mentions ?rd share in plot no. 25 area 43 and 1/9th share in plot no. 219/1 area .17. These two persons are evacuees. Their share i.e. ?rd was taken by the Custodian Evacuee Property. It is clear from the sale certificates and also from the bhumidhari Sanads dated 18.4.1960 which specifically mentions ?rd share in plot no. 25 area 43 and 1/9th share in plot no. 219/1 area .17. it appears that just by mistake 1/9th share has been written in the certificate although it should be ?rd because the whole area of plot no. 219/1 is .50 and in the certificate the 1/9th share is recorded as .17. This cannot be 1/9th share but approximately ?rd share. Thus it is clear that over the plot nos. 219/1 (.50) and 25 (.43) the share of the evacuees is ?rd and this ?rd share can be said to be evacuee property which is approximately 50/2 43/3. 17.14 approminately .31 acres. 8. Now it is to be seen whether this court can give a finding under the circumstances, in respect of the right of the parties over this portion of the evacuee property. No doubt when the question was evacuee share or the transfer of such share by the evacuee is concerned, it cannot be decided by civil or revenue court except by the court established under the Evacuee property Act and this view is supported by the judgment of the Honble Supreme Court in R. Reddy v. Assistant Custodian, A.I.R 1966 S.C. 1438 (at page 1440 from sixth line of second column). The permission to get bhumidhari sanad in favour of defendant cannot give any right to him. It is a summary proceeding and on the basis of which it cannot be said that the property had been transferred by such permission. On the other hand the sale certificates granted by the Evacuee Property Manager transfer the rights and interest of the said evacuees to the transferee plaintiff Chaturi. Thus it is clear that neither there is any dispute regarding the share of the evacuees nor there is any dispute that the evacuees had transferred their shares. The point here is whether the permission by the custodian court to get bhumidhari certificate and the sale certificates granted by the Evacuee Property Manager can be looked into in the present proceedings or not. Hence the order passed by the Custodian or an action taken by him can be given effect to by other court. The point here is whether the permission by the custodian court to get bhumidhari certificate and the sale certificates granted by the Evacuee Property Manager can be looked into in the present proceedings or not. Hence the order passed by the Custodian or an action taken by him can be given effect to by other court. The suit in respect of the same will not be barred u/s 46 of the Administration of Evacuee Property Act. The question of a property being evacuee property is distinct from the question of the effect of the orders passed by the courts of the custodian. Hence a suit u/s 229-B is not barred by Section 46 of the said Act on the analogy that a suit u/s 59 of U.P. Tenancy Act is not barred (vide 1965 A.W.R. page 385 at page 3888, 1978 A.L.C. 396 at page 399) Devi Chand Mehra v. Har Swaroop & others). Hence in my opinion the orders passed or transfer made by the officer other evacuee property can be given effect to by the revenue court. If the property has been transferred by the Custodian, the matter can be seen by the revenue or the civil court and it is not barred u/s 46 (Vide 1975 A.I.R. (S.C.) 1891 at page 1892, Punjab Waqf Board Ambala Cant v. Mohar Singh & others). Section 46 of the Administration of Evacuee Property Act runs as follows :- "46 - Jurisdiction of civil courts barred in certain matter same as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction - (a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property ; or (b) * ******* (c) to question the legality of any action taken by the Custodian General or the Custodian under this Act ; or (d) in respect of any matter which the Custodian General or the Custodian is empowered by or under this Act to determine. According to this section the suit and adjudication in the civil or revenue court is barred only when there is any question on the point whether the property is or is not evacuee property or the point is about the legality of the order given or action taken by the custodian under the Act or where the matter is to be decided by the Custodian General or Custodian. But in the present case neither any right or interest in respect of any property is in question nor the point whether the said property is evacuee property or not. There is no question about the validity or invalidity of the order passed by the custodian authorities. Moreover the declaration of tenancy right is not a matter to be decided by the custodian authorities. Hence in my opinion the dispute in the present suit is not barred u/s 46 of the Administration of Evacuee Property Act. 9. According to Section 26-B of the U.P.Z.A. & L.R. Act (Act I of 1951) the provisions of this Act I of 1951 will be applicable in case of evacuee property except the cases mentioned in schedule 5. In schedule 5 generally the points in respect of rights of third party over evacuee property are discussed. That means the right of a person who claims right over the evacuee property should be decided by the custodian and not by the civil or revenue court ; but here the right which is prayed to be declared is on the basis of the order passed or action taken by the authority of the custodian hence there is nothing against the interest of the custodian or evacuee. The only prayer is to give effect to the order passed by the custodian authorities, hence from this angle also the question or the right of the parties can be decided in this suit in respect of the so called share of the evacuees. 10. Thus so far as ?rd share of the evacuees is concerned it has also been transferred by the competent authority i.e. Evacuee Property Manager hence the plaintiff Chaturi (Now his grandson Jagnarayan) acquired bhumidhari rights through sale deed ?rd share of the evacuee and ?rd share of the remaining persons. 10. Thus so far as ?rd share of the evacuees is concerned it has also been transferred by the competent authority i.e. Evacuee Property Manager hence the plaintiff Chaturi (Now his grandson Jagnarayan) acquired bhumidhari rights through sale deed ?rd share of the evacuee and ?rd share of the remaining persons. The permission to have bhumidhari cannot grant any right to the defendant, hence it is not of much value and the orders passed or decision given in this respect are of no value in the present suit. Amir Ali had six sons and the 4 sons executed their ?rd share in favour of Chaturi and remaining ?rd share of the evacuees (Karim Ullan and Jasim Ullah) was transferred to Chaturi through sale deeds by the Evacuee Property Manager. 11. Now the question remains whether Hukum was admitted as subtenant in the land in suit. It is alleged by the defendant that one Mohammad Ismail admitted Hukum as sub-tenant over the land in suit before the abolition of Zamindari and after his fathers death he continued in possession of zamindari hence he acquired the sirdari rights. As held by the lower appellate court in its judgment dated 14.10.1966 the alleged Sajbinama was executed in the year 1362 Fasli. The name of Hukum was never recorded as occupant. He did not acquire any right over the land in suit on the basis of possession. It is also held that the possession (if any) was as a sajhi. On these reasons he held plaintiff as bhumidhar and has held that Vishwanath son of Hukum has no interest in the land in suit. 12. I agree with the reasoning's given by the learned Additional Commissioner. On the reasons given and evidence discussed above I therefore, hold that there is no illegality or other error on the basis of which Additional Commissioners judgment may be set aside. 13. There is no force in the second appeal, hence it is dismissed. Costs easy.