SURAJ PRAKASH v. UNION OF INDIA — 1997 DIGILAW 989 (DEL)

Mohd. Shamim, J. ( 1 ) THE appellants/plaintiffs (hereinafter REFERRED TO to as the appellants for the sake of convenience) through the present second appeal have taken exception to a judgment and decree dated December 23, 1997 passed by an Additional District Judge, Tis Hazari, Delhi, whereby he dismissed an appeal preferred TO by the appellants herein against the judgment and decree dated December 18,1968 passed by a Sub Judge, Tis Hazari,delhi. ( 2 ) BRIEF facts which are necessary for the appreciation of the points involved in the present appeal are being reproduced below: that the appellants are in occupation of a plot bearing No. 34/27, Ward No. 16, Pusa Road, Delhi (hereinafter REFERRED TO to as the disputed property for the sake of brevity) fully shown by letters ABCD in the plan annexed with the plaint. The disputed property is a nazul land belonging to the Government of India (hereinafter REFERRED TO to as the respondent No. 1 ). The interest of the respondent No. 1 in the said property vested in the Delhi Improvement Trust, now Delhi Development Authority, (hereinafter REFERRED TO to as respondent No. 2) through an agreement in between respondent No. 1 and the Delhi Improvement Trust, for the purpose of management of the said property. The respondent No. 1 and the Delhi Improvement Trust were both non-evacuees and as such their proprietary rights in the disputed property were non evacuee rights and thus neither could vest in the Custodian nor could this be acquired by the Central Government under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act (No. 44 of 1954), ( the Act for short ). The disputed property was leased out through a lease deed dated January 30,1942 by the then Delhi Improvement Trust to one Shri Dhanpat Rai, a non-evacuee, for a period of 99 years (the lease being renewable after a period of 10,20,30 or 60 years respectively ) from the Ist day of April of calender year in which the lease was granted as per the terms and conditions of the aforementioned lease deed. In case of breach of any of the terms and conditions the leasehold rights were to revert to the Delhi Improvement Trust ( now DDA) automatically. In case of breach of any of the terms and conditions the leasehold rights were to revert to the Delhi Improvement Trust ( now DDA) automatically. The aforesaid lessee Shri Dhanpat Rai without the permission of the Delhi Improvement Trust or the Government of India sub let the disputed property to a Muslim evacuee who migrated to Pakistan in the year 1947 owing to the disturbances in the country and as such the lessee s rights in the disputed property were taken over by the Custodian Department though they had no right or jurisdiction to do so. Neither Shri Dhanpat Rai nor the Muslim evacuee fulfilled the terms and conditions of the lease inasmuch as the lease was never renewed either by the Muslim evacuee or the Custodian and as such it reverted to the non evacuee landlord. Furthermore, the Custodian of Evacuee Properties by a Notification dated May 13,1949 as published in the Gazette of India (Extraordinary) dated May 28,1949 restored the lease rights to non evacuee landlord i. e. Delhi Improvement Trust. Consequently, the disputed property from the date of the above Notification ceased to be the evacuee property. The disputed property being a non evacuee property could not have been acquired and was in fact not acquired under Section 12 of the Act and thus did not vest in the Central Government. The appellants raised super-structure over the disputed property in their respective portions after the allotment of the same to them and spent a sum of Rs. 70,000. 00 in connection therewith. Some of the appellants are running their industrial concerns in their respective portions. Thus the disputed property is being used for residential as well as commercial purposes. The disputed property being the nazul land could not have been acquired under Section 12 of the Act nor could it have been disposed of by the Union of India through their Managing Officer in view of the provisions of Article 299 of the Constitution of India. Respondent No. 1 are not competent to authorise the Managing Officer to sell the properties other than those forming part of the compensation pool. The appellants are lawful tenants under the respondent No. 1. Respondent No. 3 as such has got no right and title to eject the appellants from the disputed property. Respondent No. 1 are not competent to authorise the Managing Officer to sell the properties other than those forming part of the compensation pool. The appellants are lawful tenants under the respondent No. 1. Respondent No. 3 as such has got no right and title to eject the appellants from the disputed property. The transfer of the disputed property in favour of respondent No. 3 by the respondent No. 1 is therefore, null and void and does not confer any right or title on the respondent No. 3. The disputed property in utter disregard to the provisions of law was sold at a public auction held on September 18,1960 and was purchased by respondent No. 3. The appellants objected to the sale of the disputed property as the same was non evacuee property and could not be sold and filed an appeal before the Assistant Settlement Commissioner. The said appeal was dismissed vide order dated March 28, 1961. The appellants then presented a revision against the said order. However, the revision petition was also dismissed on September 13, 1961 by the Deputy Chief Settlement Commissioner. Petition under Section 33 of the Act against the order passed by the Deputy Chief Settlement Commissioner was dismissed as communicated to the appellants by letter dated December 21, 1961. The orders with regard to the sale of the disputed property in pursuance whereof the auction was held on September 18, 1960 and the order passed by the Assistant Settlement Commissioner dated March 28, 1961 and the impugned order dated September 13, 1961 passed by the Deputy Chief Settlement Commissioner and the order passed by the Central Government communicated to the appellant on December 21, 1961 are illegal, invalid, void and without jurisdiction and as such not binding on the appellants for the reasons stated in paras (a) to (t) of the plaint. ( 3 ) NOTICE under Section 80 of the Code of Civil Procedure was served on respondent No. 1. ( 3 ) NOTICE under Section 80 of the Code of Civil Procedure was served on respondent No. 1. The appellants have thus prayed that the auction sale in regard to the disputed property held on September 18, 1960 and the purchase of the same by respondent No. 3 and the order dated March 28, 1961 passed by the Assistant Settlement Commissioner and the order dated 13, 1961 passed by the Deputy Chief Settlement Commissioner in revision and the order passed by the Central Government an d communicated to the appellants vide letter dated December 21, 1961 be declared as illegal and void and without jurisdiction and not binding on the appellants. They have further prayed that the appellants being the lawful tenants are entitled to the transfer of the disputed property in their favour and they be not held liable to eviction by the respondent No. 3 since they have raised super structures of permanent nature over the disputed property. ( 4 ) RESPONDENT No. 3 has put in contest, inter alia on the following grounds: that the appellants have no locus standi to bring forward the present suit. The appellants are in illegal occupation over different portions of the disputed property. The present suit is barred by the provisions of the Act. The Civil Court has got no jurisdiction to entertain the present suit. The disputed property admittedly vested in the Central Government and formed part of the compensation pool. The suit is also barred by the provisions of the Administration of Evacuee Property Act (No. 31 of 1950 ). The only remedy available under law to the appellants is to file a suit for cancellation of the sale in favour of respondent No. 3. The disputed property was an evacuee property and as such vested in the Custodian of Evacuee Properties. It was rightly acquired by the Government and was correctly sold subsequently to respondent No. 3 in a public auction held on September 18,1960. It is correct that unauthorised constructions have been raised on some parts of the disputed property and the same are liable to be removed at the instance of the persons who have constructed the same. It is wrong and incorrect that the disputed property could not have been acquired by the Central Government under Section 12 of the Act. It is correct that unauthorised constructions have been raised on some parts of the disputed property and the same are liable to be removed at the instance of the persons who have constructed the same. It is wrong and incorrect that the disputed property could not have been acquired by the Central Government under Section 12 of the Act. The fact is that the disputed property belonged to the Government and the same was leased out to a Muslim in whose favour a mutation had been effected. On his migration to Pakistan the property was declared as an evacuee property and vested in the Custodian of Evacuee Properties. It is wrong and false that the lease or the sub-lease in favour of the Muslim evacuee was illegal. It is wrong and false that Shri Dhanpat Rai or the Muslim evacuee did not fulfil the terms and conditions of the lease. The Notification dated March 13,1949 is not applicable to the facts of the present case. It is incorrect that the sale in favour of respondent No. 3 is illegal or void. The appellants are not the tenants and are thus liable to eviction at any time. Similarly, the super structures raised by them are unauthorized and are thus liable to be removed. The Assistant Settlement Officer was fully competent to sell the disputed property and he validly sold the same by public auction and the same was legally and validly purchased by respondent No. 3 for a consideration of Rs. 1,40,000. 00. The appeal against the impugned order of the Settlement Commissioner was rightly rejected. The revision petition was also rightly dismissed by the Deputy Chief Settlement Commissioner. Similarly the petition under Section 33 of the Act against the order of the Deputy Chief Settlement Commissioner was rightly dismissed. The orders with regard to the sale of the disputed property and its subsequent sale by auction on September 18, 1960 passed by the Assistant Settlement Commissioner the order dated March 28,1961 passed by the Deputy Chief Settlement Commissioner and that of the Central Government communicated to the appellants on December 21,1961 are perfectly legal and valid and within jurisdiction. The present suit is an abuse of the process of the court and the same has been filed simply with a view to delaying the eviction from the disputed property. The present suit is an abuse of the process of the court and the same has been filed simply with a view to delaying the eviction from the disputed property. It is incorrect that the disputed property belonged to the respondent No. 2. The fact is that the same only vested in respondent No. 2 for purposes of management. Respondents No. 1 and No. 2 having admitted the validity of the sale by respondent No. 1 in favour of respondent No. 3 the appellants have no right to challenge the same. In view of the above the appellants have no cause of action against the respondents. The suit is false and frivolous and the same is liable to be dismissed. ( 5 ) RESPONDENT Nos. 1 and 2 have supported the case of respondent No. 3 through their written statements. ( 6 ) IT has been urged for and on behalf of the appellants that the appellants are lawful tenants in the disputed property. They have been in occupation over the same since June 1948. They have been paying house tax and lease money. Thus they are not liable to eviction. The disputed property has been allotted to them as is manifest from the inspection report dated July 20,1953 ( vide Ex. Public Witness 9/a ). They have also raised construction over the same with bricks and cement. The learned counsel further contend that the disputed property ceased to be an evacuee property w. e. f. May 13,1949 as it was on the said date the Custodian of Evacuee Properties transferred the management of the tenancy rights to non evacuee landlords. Thus after the transfer of the disputed property to non evacuee landlords, according to the learned counsel, the disputed property was no more an evacuee property on the date it was put to sale through an auction which was held on September 18,1960. Consequently the same could not have been purchased by respondent No. 3 vide sale deed dated February 28,1966 (Ex. D-35 ). Hence the said auction held on the abovesaid date was null and void and without any jurisdiction. Learned counsel have next contended that there is no lease deed in favour of Shri Salah-Uddin. Hence there is no evidence that Shri Salah-Uddin, Muslim evacuee, was ever a lessee of the disputed property. D-35 ). Hence the said auction held on the abovesaid date was null and void and without any jurisdiction. Learned counsel have next contended that there is no lease deed in favour of Shri Salah-Uddin. Hence there is no evidence that Shri Salah-Uddin, Muslim evacuee, was ever a lessee of the disputed property. Ergo the disputed property could not have been declared as an evacuee property vide Notification dated November 19,1948. Both the courts below misconstrued the documents. The construction of documents relating to the rights of the parties is a question of law. In view of the above this Court can interfere in a second appeal under Section 100 of the Code of Civil Procedure. ( 7 ) LEARNED counsel for respondent No. 3, Mr. Mukul Rohatgi, Senior Advocate, has urged to the contrary. He has contended that Civil Court has got no jurisdiction to entertain the present suit ( vide Section 36 of the Act ). The suit is also barred by Section 28 and 46 of the Administration of Evacuee Property Act 1950. According to the learned counsel the disputed property was admittedly declared an evacuee property as the same belonged to a Muslim owner who migrated to Pakistan. It formed part of the compensation pool and was rightly acquired under Section 12 of the Act and was rightly put to auction on September 18,1960 and was rightly sold by respondent No. 1 and purchased by respondent No. 3. The appellants are neither the tenants nor the licensees of the disputed property. In fact they got into possession over the disputed property without any right or title. Thus they are the trespassers and as such are liable to be evicted therefrom. ( 8 ) IT is manifest from above that the main contention put forward by the learned counsel for the appellants is that the appellants are tenants in the disputed property by virtue of an allotment from Government of India. Learned counsel in this connection have placed much reliance on an inspection report which, according to them, is nothing else but an allotment letter i. e. Ex. Public Witness 9/a. The learned counsel on the basis of the said inspection report ( Ex. Public Witness 9/a) have contended that it is nothing but an allotment letter. Learned counsel in this connection have placed much reliance on an inspection report which, according to them, is nothing else but an allotment letter i. e. Ex. Public Witness 9/a. The learned counsel on the basis of the said inspection report ( Ex. Public Witness 9/a) have contended that it is nothing but an allotment letter. It goes a long way to show and prove that the appellants are in occupation over the disputed property since June 1948. It further goes to show that the appellants have been assessed to house tax. They are paying rent at different rates mentioned therein. They have raised pucca structures with bricks and cements on the disputed property. The learned counsel on the basis of the above report ( Ex. Public Witness 9/a) wants me to conclude that the appellants are lawful occupants over the disputed property and they are thus not liable to eviction. ( 9 ) I am sorry, I am unable to agree with the learned counsel. A close scrutiny of the above document (Ext. Public Witness 9/a) reveals that the same is nothing but an inspection report. There is no dispute with regard to the fact that the appellants are in occupation over the same and the same has also not been challenged by the learned counsel for respondent No. 3. Thus there is nothing strange when an officer visited the disputed property on July 20. 1953 and found the appellants in occupation thereof. However, simply because a man is in occupation over a particular property he cannot be termed as a tenant or a licensee on the basis of his occupation. A tenancy like any other fact is a fact which is to be proved by evidence. The appellants curiously enough, have not placed even a tiny piece of paper in support of their assertion that they are in fact the tenants under the respondent No. 1. Neither any lease deed nor any rent note or any other piece of paper was placed on record in support of the above contention. ( 10 ) THE appellants have then relied on the house tax receipts issued in their favour in order to substantiate their contention that they are the lawful occupants of the disputed property ( vide Exts. Public Witness 9/n, P and Q ). The said contention, I feel is also of no avail to the appellants. ( 10 ) THE appellants have then relied on the house tax receipts issued in their favour in order to substantiate their contention that they are the lawful occupants of the disputed property ( vide Exts. Public Witness 9/n, P and Q ). The said contention, I feel is also of no avail to the appellants. The payment of the house tax can by no stretch of imagination be equipollent to an agreement of tenancy. House tax is levied on a person whosoever is in possession over a particular property. No enquiry with regard to the status of the person is conducted at the time of the levy of the house tax. The Municipal Corporation is concerned with the recovery of the house tax from any person whosoever is in occupation over a particular property. Thus they would recover the house tax from any person whosoever is ready to pay the same. Admittedly, the appellants were looking for creating evidence in their favour as the lawful occupants. Thus there is nothing strange in order to create the said evidence in their favour they paid the house tax to the Municipal Corporation of Delhi. ( 11 ) LEARNED counsel for the appellants have then led me through certain rent receipts issued by the Ministry of Rehabilitation in favour of the appellants to show and prove that the appellants are in fact tenants ( vide Exts. Public Witness 9/r, S, T and U ). The contention of the learned counsel, I feel, does not hold any water. ( 12 ) A perusal of the said rent receipts reveals that the said receipts were issued without prejudice and it was clearly mentioned therein that the same would in no way affect the status of the appellant. Thus the appellant cannot be allowed to draw any sustenance from the mere issue of the said receipts in their favour. ( 13 ) FURTHERMORE the appellants while contending before the Court that they are the tenants in the disputed property are raising a question which is a question of fact. While doing so they are oblivious of the fact that they are in second appeal. Thus they are debarred in a second appeal from challenging the finding of the two courts below on the factum of tenancy. While doing so they are oblivious of the fact that they are in second appeal. Thus they are debarred in a second appeal from challenging the finding of the two courts below on the factum of tenancy. The above view was given vent to by the Hon ble Supreme Court as reported in Shri Raja Durga Singh of Solon v. Tholu and others, AIR 1963 Supreme Court 361, ". . . . . . . . . . " In an ejectment suit a finding by the District Judge on the question whether the defendants were the tenants of the plaintiff, arrived at, on the consideration of all evidence, oral documentary, adduced by the parties is a finding of fact and cannot be set aside in second appeal by the High Court. . . . . . . ". ( 14 ) TO the same effect are the observations of the Hon ble Supreme Court as reported in Bhinka and others v. Charan Singh, AIR 1959 Supreme Court 960. ( 15 ) THERE is another aspect of the matter. The appellants got into possession over the disputed property in the wake of disturbances in the country as an aftermath of the partition. Thousands of persons migrated to India from Pakistan. The Government of India was facing the problem in finding a shelter for the refugees. The refugees were also themselves looking for a roof over their head. Hence they occupied any property which was found lying vacant. The Government initially did not disturb their possession as they were unable to find out an alternative accommodation for them and it was a knotty problem to settle them. Consequently there is nothing strange, that initially they were not disturbed and since they were in occupation over certain properties the Government received from them certain amounts in lieu of their occupation over the said properties. This is exactly what happened with the appellants since they were in occupation over the disputed property. Certain amounts were received from them in lieu of the said occupation. However, the appellants cannot now be allowed to take advantage of the situation which was obtaining in the country in the wake of the partition. This is exactly what happened with the appellants since they were in occupation over the disputed property. Certain amounts were received from them in lieu of the said occupation. However, the appellants cannot now be allowed to take advantage of the situation which was obtaining in the country in the wake of the partition. Thus the payment of the said amounts by the appellants to the respondent No. 1 in lieu of their occupation over the disputed/ property can by no stretch of imagination lead us to the inference that the appellants are lawful tenants in the property. ( 16 ) LEARNED counsel for the appellants have then argued that in the absence of a clear cut evidence with regard to the factum of the tenancy, the Courts would be justified in taking the help from the surrounding circumstances to come to a conclusion with regard to the factum of the tenancy. The learned counsel then contend that the said surrounding circumstances lead us to one and the only conclusion that is inevitable that the appellants are lawful tenants. Admittedly they have been in occupation of the disputed property since 1948. They have been paying rent and the house tax. Thus the logical inference is that they are lawful tenants. The learned counsel in support of their contention have led me through the observations of a Single Judge of Calcutta High Court as reported in Dwarka Dass Marwari and others v. Smt. Parbati Dassi, AIR 1942 Calcutta, "in the absence of a written lease creating a tenancy, the nature of the tenancy must be determined from surrounding circumstances, and in particular from the course of dealings by the parties concerned " the said observations of the learned Single Judge were subsequently reiterated by another Single Judge in Murlidhar Kulthia and Smt. Tara Dye, AIR 1953 Cal 349. ( 17 ) LEARNED counsel have also relied upon the observations of a Division Bench as reported in Ramayan Saran v. The Patna Improvement Trust, AIR 1972 Pat 7 , wherein the Division Bench relied upon the observations of a Full Bench of the same Court to the effect " The possession of a lessee becomes wrongful from the time of his entry on the basis of a void or invalid lease, but if he pays rent which is accepted by the lessor, his possession ceases to be adverse to the lessor and a relationship of landlord and tenant comes into existence, in other words, he no longer remains a trespasser but becomes a tenant". The abovesaid authorities are not applicable to the facts of the present case inasmuch as the said authorities deal with a situation in which the lease granted in favour of the lessee is initially invalid or illegal. However, if he gets into possession over the same and pays the rent which is accepted by the landlord in that eventuality the lessee would be deemed to be a lawful tenant. Admittedly this is not the case in hand. The appellants herein have not placed are thing on record in the present case to show and prove any agreement between them and the Government of India with regard to their occupation over the said property. Thus I am of the view that both the Courts below rightly concluded that the appellants herein are the trespassers. ( 18 ) DURING the course of arguments learned counsel for the appellants have laid much stress upon the Notification dated May 13, 1949 issued by the Government of India. The learned counsel have contended on the basis of the same that the disputed property no more remained an evacuee property inasmuch as the same was transferred to a non evacuee landlord vide the above Notification. Thus, according to the learned counsel, the disputed property was no more an evacuee property when it was put to sale in an auction by the Settlement Officer on September 18,1960. ( 19 ) SINCE we are concerned with the construction of the said Notification, alluded to above, it would be in the fitness of things to refer to the same before proceeding any further in the matter. ( 19 ) SINCE we are concerned with the construction of the said Notification, alluded to above, it would be in the fitness of things to refer to the same before proceeding any further in the matter. It is in the following words:- " Where And whereas I have decided to do the same by general order as prescribed under the aforesaid section; NOW, therefore, I do her eby stand absolved from today of all responsibilities in respect of such evacuee tenancy rights as have vested in me or the leases and allotments granted thereof". ( 20 ) THE learned counsel urged on the basis of the above Notification that fromhe aforementioned date i. e. May 13,1949 the disputed property no more remained an evacuee property as the same was transferred to non evacuee landlords. The contention of the learned counsel at the first blush appears to be a specious one. However, on a deeper probe we find that the learned counsel have construed amiss the contents of the said Notification. ( 21 ) A careful scrutiny of the said Notification reveals that what has been transferred is the management of the tenancy rights of evacuees to non evacuee landlords. Secondly, the same is with regard to the creation of new tenancies i. e. the tenancies which have been created by the Custodian after acquiring the evacuee properties. Therefore, there is absolutely nothing in the said Notification which goes to show that the disputed property was ever declared as a non evacuee property at any point of time. Once a property is declared as an evacuee property through a Notification in the Gazette, vide Section 7 of the Administration of Evacuee Property Act, the same can be exempted from the rigours of the provisions of the said Act only when another Notification is issued ( vide Section 52 of the Administration of Evacuee Property Act, 1950 ). Admittedly no such Notification has been placed on the file of this Court to show and prove that the disputed property ceased to be an evacuee property. Admittedly no such Notification has been placed on the file of this Court to show and prove that the disputed property ceased to be an evacuee property. ( 22 ) MOREOVER, a close scrutiny of the provisions of the said Notification reveals that what was transferred through the notification adverted to above was the management of the tenancy rights, that, too, in respect of tenancies which were created by the Custodian of Evacuee Property after acquiring the said properties i. e. by declaring them to be evacuee properties. I am support in my above view by the observations of a Single Judge of the Bombay High Court as reported in Union of India v. Dr. Maqsood Ahmed, A. I. R. 1963 Bombay 110, ". . . . Section 12-A does not apply to any and every case. It only applies to those cases where the leasehold rights of the evacuee have vested in the Custodian and the Custodian has granted a lease to another. It is only in such cases that he can make a declaration". There is nothing on record to show that the Custodian of Evacuee Property ever created tenancy in favour of the appellants after the acquisition of the disputed property. Hence the contention of the learned counsel for the respondent that the impugned Notification adverted to above has no application to the facts of the present case is quite correct. I thus feel that the appellants cannot make any use of the said Notification. It does not come to their rescue. ( 23 ) IT has then been urged by the learned counsel for the appellants that an acquisition of a property under the East Punjab Evacuees (Administration of Property ) Act, XIV of 1947, is not analogous to the acquisition under the Land Acquisition Act inasmuch as the property under the former Act continues to be the property of an evacuee and he continues to be the owner of the same. The learned counsel in support of their contention have relied upon the judgment of a Division Bench as reported in Mohd. Ali Hasan Khan and others vs Bhagirathlal and others, AIR 1964 Andhra Pradesh 126, (Pr. 8) ". . . . . Its provisions would show that it does not render the property of the evacuee an escheat to the Government. Ali Hasan Khan and others vs Bhagirathlal and others, AIR 1964 Andhra Pradesh 126, (Pr. 8) ". . . . . Its provisions would show that it does not render the property of the evacuee an escheat to the Government. All that it provides for is how best to administer the same for the benefit of the evacuee. The fact that there is a provision for maintenance of accounts and also a provision (Section 16) for its restoration to the evacuee or his heirs makes the intendment clear that it is not the object of the Act to make e Government or the Custodian proprietor or the owner of the property declared as evacuee property. Notwithstanding such a declaration, the property shall continue to be the property of the evacuee and the vesting thereof in the Custodian would only mean that the Custodian has stepped into administration, preservation and management of the same". ( 24 ) TO the same effect are the observations of a Division Bench of the Allahabad High Court as reported in Assistant Custodian v. Mata Prasad and others, AIR 1974 ALL. 67. ( 25 ) THE same view was reiterated in Mazharul Islam and others v. Khacher Bux and another, 1968 A. L. J. 555. ( 26 ) THERE is no dispute with the above proposition of law that an evacuee continues to be the owner of the evacuee property and it does not vest in the Custodian of Evacuee Property, what is transferred to him is the administration and management of the evacuee property. However, the things are different in the present case inasmuch as in the instant case a Notification was issued under Section 12 of the Act whereby the disputed property was acquired by the Government of India and since that date the disputed property vested absolutely in the Central Government, free from all encumbrances. Section 12 of the Act deals with the powers to acquire evacuee properties for rehabilitation of displaced persons. It lays down as under:- "12. Section 12 of the Act deals with the powers to acquire evacuee properties for rehabilitation of displaced persons. It lays down as under:- "12. Power to acquire evacuee property for rehabilitation of displaced persons - (1) If the Central Government is of opinion that it is necessary to acquire any evacuee property for a public purpose, being a purpose connected with the relief and rehabilitation of displaced persons, the Central Government may at any time acquire such evacuee property by publishing in the Official Gazette a notification to the effect that the Central Government has decided to acquire such evacuee property in pursuance of this section. (2) On the publication of a notification under sub-section (1), the right title and interest of any evacuee in the evacuee property specified in the notification shall, on and from the beginning of the date on which the notification is so published , be extinguished and the evacuee property shall vest absolutely in the Central Government free from all encumbrances". ( 27 ) THUS it is manifest from above that the Government of India is competent to acquire any property for purposes of payment of compensation and rehabilitation of displaced persons and since the date of the Notification the said property would form a part of the compensation pool. This is what happened in the present case. Thus the disputed property since the date of Notification vested in the Government of India free from all encumbrances. Consequently it can be safely held without any hesitation that the said property could have been put to auction by the Government of India for the purposes mentioned in Section 12 (1) of the Act. ( 28 ) LEARNED counsel for the appellants next contended that no notice under Section 7 of the Administration of Evacuee Property Act, 1950 was ever issued to the appellants who were admittedly in occupation of the disputed property. Hence the disputed property could not have been declared an evacuee property. The contention of the learned counsel is devoid of any force. ( 29 ) ADMITTEDLY the disputed property was acquired under the provisions of the East Punjab Evacuees (Administration of Property) Act, XIV of 1947. The Administration of Evacuee Property Act, 1950 came into operation in the year 1950. This Court thus fails to understand as to how notice under Section 7 could have been served on the appellants? ( 29 ) ADMITTEDLY the disputed property was acquired under the provisions of the East Punjab Evacuees (Administration of Property) Act, XIV of 1947. The Administration of Evacuee Property Act, 1950 came into operation in the year 1950. This Court thus fails to understand as to how notice under Section 7 could have been served on the appellants? Admittedly for the actions which were taken prior to 1950 the provisions of East Punjab Evacuees (Administration of Property) Act, 1947 would be applicable while for things which happened after 1950 the provisions of the Administration of Evacuee Property Act, 1950 would apply. ( 30 ) THERE is another aspect of the matter. The appellants are trespassers as is manifest from above. They have got no interest in the disputed property. A notice is to be issued only to those persons who have got an interest in the property which is proposed to be acquired as an evacuee property in order to enable them to prove before the Custodian of Evacuee Property, that the property which is proposed to be declared as an evacuee property, in fact it is not so. Furthermore, it is to afford an opportunity to a person who has not migrated to Pakistan to show that the property which is proposed to be declared as an evacuee property does not belong to an evacuee and that the evacuee has got no interest therein. The above view was given vent to by their Lordships of the Supreme Court as reported in Begum Noorbanu and Others Vs. Deputy Custodian General of Evacuee Property, AIR 1965 Supreme Court 1937 (V 52 C 322),. . . . . . . . " It seems to us that the notice contemplated by S. 7 of the Act is in the first place intended to provide an opportunity to the person whose property is in the opinion of the Custodian an evacuee property to satisfy the custodian that he is not an evacuee his property cannot be declared evacuee property. In the second place it is to afford an opportunity to persons who have not migrated to Pakistan to satisfy the Custodian that the property which in the opinion of the Custodian, is evacuee property does not belong to an evacuee or that an evacuee has no interest there. In the second place it is to afford an opportunity to persons who have not migrated to Pakistan to satisfy the Custodian that the property which in the opinion of the Custodian, is evacuee property does not belong to an evacuee or that an evacuee has no interest there. Therefore, once a person has been declared an evacuee after due notice it would be unnecessary to give notice to him thereafter under S. 7 of the Act". ( 31 ) LEARNED counsel for the appellants have then contended that the appellant are licensees under the Government of India i. e. respondent No. 1 and acting upon said license they have erected structures of permanent nature by incurring expenses thereon. Hence they cannot be evicted (vide Section 60 of the Indian Easement Act, 1882 ). Section 60 is in the following words: "60 License when Revocable. A license may be revoked by the grantor, unless -- (A) it is coupled with a transfer of property and such transfer is in force ; (B) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the executions". Learned counsel for the appellants on the basis of the above have argued that admittedly the appellants have been in occupation since 1948. They while acting upon the license raised permanent structures. Thus they are not liable to eviction. The contention of the learned counsel is without any merit. ( 32 ) AS per the provisions of Section 60 of the Indian Easement Act a license is irrevocable only in those discerning few cases if the licensee acting upon the license has executed some work of permanent nature after incurring expenses thereon. It implies thereby that at the time when the license was given there must be a permission to execute a work of permanent nature and on the basis whereof the licensee has erected the works of a permanent character. This is not so in the instant case. Since the appellants are neither licensees nor tenants. ( 33 ) I am supported in my above view by the observations of Oudh High Court as reported in Mohammad Ali and another v. Ahmad Hussain and others, AIR 1932 Oudh 264,". . . . This is not so in the instant case. Since the appellants are neither licensees nor tenants. ( 33 ) I am supported in my above view by the observations of Oudh High Court as reported in Mohammad Ali and another v. Ahmad Hussain and others, AIR 1932 Oudh 264,". . . . Section 60 is inapplicable where the licensee builds a house while the license was merely to remain in possession of the plot for the house cannot be said to be built, acting upon the license". ( 34 ) IT has already been observed above that the appellants are simply trespassers. They are neither licensees nor tenants inasmuch as the disputed property was neither transferred to them as licensees nor as tenants therein. Furthermore, even assuming for the sake of arguments that a license was created in favour of the appellants the same would be deemed to have been revoked once the property was put to auction and purchased by the respondent No. 3. Moreover, there is absolutely not even an iota of evidence on record to show that the said license in respect of the disputed property was created for erecting permanent structures thereon in favour of the appellants. In fact the appellants herein have erected the structures of a permanent character without any permission and consent of the respondent No. 1. They will be deemed to have done so on their own risk. They can blame none but themselves for the impasse which they find themselves in. They will have to drink as they have brewed. I am tempted here to cite a few lines from the enthralling commentary by Mulla on the Transfer of Property Act, at page 274: " There are no equities in favour of a trespasser, or of a person fraudulently in possession. In fact, the construction of buildings by such a person is only an aggravation of trespass for which the appropriate remedy is an injunction for their removal". ( 35 ) IT has been urged for and on behalf of respondent No. 3 that the suit in the instant case was barred by Section 36 of the Act. Since the fate of the present appeal hinges on an interpretation which is to be placed on Section 36 of the Act, the provisions of the said Section can be adverted to with profit before proceeding any further in the matter. Since the fate of the present appeal hinges on an interpretation which is to be placed on Section 36 of the Act, the provisions of the said Section can be adverted to with profit before proceeding any further in the matter. It is in the following words:- "36. Bar of jurisdiction - Save as otherwise expressly provided in this Act, no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act of determine, and no injunction shall be granted by any court of other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act". ( 36 ) IT is abundantly clear from above that there is a complete bar for a Civil Court or any other Court to entertain any suit or proceedings in respect of any matter which can be decided by or under the provisions of the abovesaid Act. The appellants herein claim themselves to be allottees/tenants of the disputed property. This point can easily be decided by the officers appointed under the Act. In fact the appellants were well aware of this fact and that is why they challenged the factum of the sale of the disputed property as well as its acquisition under Section 12 through an appeal before the Assistant Settlement Commissioner. On the dismissal of the said appeal vide judgment and order dated March 28,1961 by the Assistant Settlement Commissioner, ( vide Ex. Public Witness 9/c), the appellants approached the Deputy Chief Settlement Commissioner by way of a revision. The said revision was also dismissed vide judgment and order dated September 13,1961, ( vide Ex. Public Witness 9/d ). The appellants did not lose heart and thereafter moved the Government of India, Ministry of Rehabilitation through an application under Section 33 of the Act. The said petition was dismissed as is manifest from the communication dated December 21,1961 ( vide Ex. Public Witness 9/e ). It can thus be safely concluded therefrom that jurisdiction of the Civil Court is completely barred in connection with a matter which could have been heard and disposed of under the provisions of the Act. The said petition was dismissed as is manifest from the communication dated December 21,1961 ( vide Ex. Public Witness 9/e ). It can thus be safely concluded therefrom that jurisdiction of the Civil Court is completely barred in connection with a matter which could have been heard and disposed of under the provisions of the Act. ( 37 ) IN this connection a matter very much akin to the matter in hand came up before s Single Judge of this Court as reported in Washdev Singh Biji v. Union of India and another, AIR 1970 Delhi 85. It was observed ( vide para 6) "where a plaintiff files a suit for declaration alleging to be a claimant, displaced person and lawful tenant of Government built property, such a suit is barred by Sec. 36. Displaced Persons ( Compensation and Rehabilitation ) Act". LEARNED counsel for the respondent No. 3, Mr. Mukul Rohatgi, Senior Advocate has then led me through the provisions of Sections 28 and 46 of the Administration of Evacuee Property Act. Section 28 of the said Act is couched in the following words :- "28. Finality of orders under this Chapter - Save as otherwise expressly provided in this Chapter, every order made by the Custodian General, Custodian, Additional Custodian, Authorized Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceeding". SECTION 46 envisages " Save 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 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". ( 38 ) IT is crystal clear from above that the jurisdiction of the Civil Court to adjudicate upon the question as to whether a particular property is or is not an evacuee property is barred by the provisions of the said Section. ( 38 ) IT is crystal clear from above that the jurisdiction of the Civil Court to adjudicate upon the question as to whether a particular property is or is not an evacuee property is barred by the provisions of the said Section. Admittedly the appellants in the instant case have challenged the factum of the acquisition of the disputed property by the Custodian of Evacuee Property. Such a suit is thus expressly barred under the provisions of Sections 28 and 46 of the Act. ( 39 ) THE above view was given vent to by their Lordships of the Supreme Court as reported in Custodian, Evacuee Property, Punjab and others vs. Jafran Begum, AIR 1968 Supreme Court 169 (V 55 C 43 ). . . . . . . " Where the question whether certain properties are evacuee properties has been decided under Section 7 etc. , whether that decision is based on issues of fact or issues of law, the jurisdiction of courts is clearly barred under Section 46 (a ). No distinction can be drawn between decisions under Section 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by Section 28 and Section 46 bars the jurisdiction of civil and revenue courts in matters which are decided under section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated". ( 40 ) FURTHERMORE, a Constitution Bench of the Supreme Court dealt with the point in issue before this court as to when the jurisdiction of the Civil Court would be barred by an express provision of law, in Mafatlal Industries Ltd. and others v. Union of India and others, (1997) 5 SCC 536 at page 737, para 338, where their Lordships relied upon the observations of Justice G. P. Singh on Principles of Statutory Interpretation, 6th Edition (1996) at page 475, and laid down the following principles of law in order to arrive at a correct conclusion in case such a question crops up before the subordinate courts. "a review of the relevant authorities on the point leads to the following conclusions: (1) An Exclusionary Clause using the formula "an order of the tribunal under this Act shall not be called in question in any court " is ineffective to prevent the calling in question of an order of the tribunal if the order is really not an order under the Act but a nullity. (2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of enquiry, e. g. when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not properly constituted, or is disqualified to act; (c) the subjectmatter of the parties are such over which the tribunal has no authority to enquire; and (d) there is want of essential preliminaries prescribed by the law for commencement of the enquiry. (3) Cases of nullity may also arise during the course or at the conclusion of the enquiry. These cases are also cases of want of jurisdiction if the word "jurisdiction" is understood in a wide sense. Some examples of these cases are : (a) when the tribunal has wrongly determined a jurisdictional question of fact or law; (b) when it has failed to follow the fundamental principles of judicial procedure e. g. , has passed the order without giving an opportunity of hearing to the party affected ; (c) when it has violated the fundamental provisions of the Act, e. g. when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matters ; (d) when it has acted in bad faith; and (e) when it grants a relied or makes an order which it has no authority to grant or make ; as also (f) when by misapplication of the law it has asked itself the wrong question". ( 41 ) IT thus can be safely concluded from above that Civil Courts would have the necessary jurisdiction to entertain a suit in case it is shown that a particular Tribunal or Authority has passed an order which it was incompetent to pass or has decided some thing which was beyond its jurisdiction. ( 41 ) IT thus can be safely concluded from above that Civil Courts would have the necessary jurisdiction to entertain a suit in case it is shown that a particular Tribunal or Authority has passed an order which it was incompetent to pass or has decided some thing which was beyond its jurisdiction. In case no opportunity was given to a party to be heard before passing the impugned order and if it is shown that the order was passed in utter violation of the principles of natural justice. ( 42 ) LEARNED counsel for the appellants have miserably failed to show that in the instant case the impugned orders which were passed by the Courts were without jurisdiction and beyond their competence. ( 43 ) LEARNED counsel for the appellants have led me through the following authorities in order to show and prove that a Civil Court would have the necessary jurisdiction to entertain the suit. However, the said authorities are not applicable to the facts of the present case. 1. Dhulabhai etc. v. State of Madhya Pradesh and another, AIR 1969 Supreme Court 78. It was observed ". . . . . . . on the facts and in the circumstances of the case that the suit in question for declaration that the provisions of the law relating to assessment under the M. B. Sales Tax Act ( 30 of 1950 ) were ultra vires and for refund of the amount of the tax illegally collected was not barred by Section 17 of the Act". 2. Abdul Majid Haji Mahmomed v. P. R. Nayak, AIR (38) 1951 Bombay 438 ". . . . . . . . If the orders are in excess of jurisdiction or are passed in violation of the fundamental principles of justice they can be corrected by the issue of a writ of certiorari by the High Court". 3. Secretary of State v. Mask and Co. ,air 1940 Privy Council 105, ". . . . . . Even if jurisdiction is so excluded, the Civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". ( 44 ) LEARNED counsel for the respondent Mr. . . . . . Even if jurisdiction is so excluded, the Civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure". ( 44 ) LEARNED counsel for the respondent Mr. Mukul Rohatgi has then raised a preliminary objection with regard to the maintainability of the second appeal. According to him a second appeal can be entertained only when it is shown that there is a point of law involved which is to be gone into by the High Court. The appellants have failed to show that any such question of law arises for adjudication before this court. Thus the learned counsel contends that the present appeal could not have been entertained and should have been dismissed at the preliminary stage. In support of his contention he has relied upon the observations of the Supreme Court as reported in Ram Das Alias Ram Suraj v. Gandibai (Smt) and others, (1997) 1 SCC 74 ,. . . . . . . . . . ". However before the High Court could exercise its jurisdiction under Section 100 read with Section 103 Code of Civil Procedure applicable at the relevant time in 1969 it had to be shown that the lower appellate court had wrongly determined any question of fact by reason of any illegal omission, error or defect as were REFERRED TO to in Section 100 Code of Civil Procedure. Therefore it had to be demonstrated that the finding of fact reached by the first appellate court was affected by any of the errors as contemplated by provisions of Section 100, sub-sections (1) (a), (b) and (c) Code of Civil Procedure". ( 45 ) LEARNED counsel for the appellants have urged to the contrary. Since the present appeal pertains to the year 1972 the same is to be governed by the provisions of Section 100 of the Code of Civil Procedure as it was prior to the amendment. ( 45 ) LEARNED counsel for the appellants have urged to the contrary. Since the present appeal pertains to the year 1972 the same is to be governed by the provisions of Section 100 of the Code of Civil Procedure as it was prior to the amendment. It then read as under :- (1) Save where otherwise expressly provided in the body of this code or any by other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court on any of the following grounds, namely : (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. " ( 46 ) IN view of the above a duty was cast on the shoulders of the appellants to show and prove for the entertainment of the present appeal by this Court that the impugned judgments and decrees passed by the courts below were either contrary to law or the learned Additional District Judge has failed to determine some material issues or usage having the force of law, or a substantial error or defect in the procedure provided by the Code of Civil Procedure. ( 47 ) LEARNED counsel for the appellants have urged that the courts below construed amiss the documents filed by the appellants on the file and thus mis-guided themselves. Hence, according to them a question of law has arisen in the present case. Therefore, the present appeal was rightly entertained by this Court. Learned counsel have in this connection led me through the observations of the Hon ble Supreme Court as reported in Pankaj Bhargava and another v. Mahinder Nath and another, (1991) 1 SCC 556 . The Hon ble Court has opined: " The construction of a document which is the foundation of the rights of parties raises a question of law. . . ". The Hon ble Court has opined: " The construction of a document which is the foundation of the rights of parties raises a question of law. . . ". Thus it has been argued that misconstruction of the document in the instant case has to be treates as a question of law. I am sorry I am unable to agree with the contention of the learned counsel for the appellant. ( 48 ) IT is not the mis-construction of any and every document which would lead to a question of law. It is only in those discerning few cases where the rights of the parties are based on a particular document such as a document of title only then it can be said that the construction of the said document raises a question of law. No such question is involved herein. The appellants placed on record certain receipts alleged to be rent receipts in order to show and prove that they are the tenants. Both the courts below did not place any reliance on the said receipts, and rightly so. Thus this question can by no stretch of imagination be said to be a question of law. It has already been observed above while placing reliance on the observations of the Hob ble Supreme Court as reported in Shri Raja Durga Singh of Solon v. Tholu and others, AIR 1963 Supreme Court 361 ( supra), that the determination of the question as to whether a particular person is a tenant or is not a tenant is a question of fact and is not a question of law. ( 49 ) IT has next been urged for and on behalf of the appellants that there is no evidence on record that Dhanpat Rai ever executed a lease deed in favour of Muslim evacuee. The learned counsel want me to conclude therefrom that the disputed property was wrongly declared as an evacuee property. The contention of the learned counsel is devoid of any force. There is a statement of Shri Om Prakash Patwari on the file of this court which shows that the lease was initially executed in favour of Dhanpat Rai in the year 1942. He thereafter transferred the same to Ishwar Singh who transferred it to Mohd. Sultan Salah Uddin on January 23, 1943. He further goes on to state that mulation was effected in favour of Mohd. He thereafter transferred the same to Ishwar Singh who transferred it to Mohd. Sultan Salah Uddin on January 23, 1943. He further goes on to state that mulation was effected in favour of Mohd. Sultan Salah-Uddin on June 23, 1943 ( vide Ex. Public Witness 9/k ). An extract from Jamabandi pertaining to the year 1954-55 has been placed on the file of this Court which goes to show that a mutation was made in favour of Mohd. Sultan Salah Uddin, Muslim evacuee who migrated to Pakistan. It thus can be safely inferred therefrom that it was the property of a Muslim who migrated to Pakistan and hence it was rightly declared as an evacuee property. ( 50 ) DURING the pendency of the present appeal learned counsel for respondent No. 3 moved an application for removal of the super-structures raised on the disputed property except those in possession of the appellants, and in the event of the dismissal of the appeal for delivery of possession over the disputed property to respondent No. 3 ( vide C. M. No. 916/97) To my mind, the said application is not maintainable inasmuch as the relief sought by the respondent is beyond the scope of the present appeal. The present appeal has arisen out of a suit which was filed by the appellants wherethrough they sought declaration adverted to above. Consequently, respondent No. 3 is not entitled to the relief prayed for through the present application. The application is thus dismissed. . ( 51 ) IN the circumstances stated above, the present appeal has got no force. It is hereby dismissed with costs assessed at Rs. 25,000. 00.