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1998 DIGILAW 304 (PAT)

Raghubans Ojha v. Sukhpal Ojha

1998-04-09

RADHA MOHAN PRASAD

body1998
JUDGMENT Radha Mohan Prasad, J. This appeal arises out of judgment and decree passed in Title Suit no.35/3 of 1964/72 by 1st. Addl. Subordinate Judge, Arrah dismissing the suit of the plaintiff appellants on contest with cost against defendants first set and exparte without cost against the rest. 2. The said title suit was filed for a declaration that the plaintiffs have title over 2/3rd acres in 20 acres 8 decimals of the suit lands under cadestral survey khata no.54 of village Sanjhauli under Shahpur P. S. in the district of Bhojpur and that the order dated 11.9.56 passed by the Assistant Custodian Arrah under the Administration of Evacuee Property Act (herein after referred to as 'the Act' is illegal, void and without jurisdiction and not binding upon the plaintiffs and defendants 4th set, besides for declaration that the defendant first part, did not acquire ally right, title and possession over the suit lands on the basis of Kabalas executed b, heirs of Rukmuddin and the Custodian Department and further sought for partition of aforesaid two-third share and recovery of possession over the same with meane profits. 3. The suit was originally filed by Raghubansh Ojha alone but by order dated 20.12.1990 Radhika Devi wife of Pandit Ramnigah Ojha, who as defendant no. 16 was transposed as plaintiff no. 2. Admittedly the suit lands belonged to Noor Ali recorded as Kast lands in C. S. Khatian (Ext. 20). Noor Ali had two sons Wali Raja and Ali Raja and a daughter Bibi Jainab alias Tarwa @Tetari. Noor Ali died in 1917. The geneology of Noor Ali is as follows :- Noor Ali Wali Raja Ali Raja Bibi Jainab @ Tarwa @ Tetri Rukmuddin (S) Naseem Ahmad Ali Neyaj Ali Salim Amin Yasin Madin Bibi Jainub Nissa (Disputed) (S) (d) (S) (d) & (wife of Abdul Hamid) 4. Since Rukmuddin's father died in the life time of his father Noor Ali, Rukmuddin was disinherited from the property of his grand father Noor Ali. Accordingly, on the death of Noor Ali the suit land & other properties devolved upon his surviving son and daughter Ali Raja and Bibi Jainab to the extent of two-third and one-third respectively. It is alleged that the lands in question were managed by Rukmuddin as Mukhtare Am of Ali Raja and Bibi Jainab. Accordingly, on the death of Noor Ali the suit land & other properties devolved upon his surviving son and daughter Ali Raja and Bibi Jainab to the extent of two-third and one-third respectively. It is alleged that the lands in question were managed by Rukmuddin as Mukhtare Am of Ali Raja and Bibi Jainab. This act was not known to the plaintiffs before and they were under wrong impression that Noor Ali had gifted the suit lands to Ali Raja. Rukmuddin and Bibi Jainab to the extent of one-half, one fourth and one-fourth respectively. They, for the first time know that Rukmuddin was Mukhrar-e-Am only when in F.A. no. 364/57 Bibi Jainab's non produced Deed of Mukhtar-e-Am dated 21.7.1991 (Ext. 9) executed by Ali Raja in favour of Rukmuddin as per petition dated 18.2.1961 (Ext. 1). Initially the entry made in the revenue record after 1990 was of Ali Raj but thereafter the name of Ali Raja was some how struck off and name of Rukmuddin was entered showing as nephew of Ali Raja. 5. The contesting defendants, on the other hand, alleged that since Rukmuddin's father had predeceased Noor Ali, the latter bad gifted the suit land orally to Rukmuddin a year before his death end since then Rukmuddin and after his death hrs heirs had been in possession of these lands through defendants nos. 1 to 3 as their sikmidars and after execution of sale deeds by heirs of Rutkmuddin for 104 acres on 21.5.1953 and by the Custodian Department, defendants nos.1 to 5 are in possession of these lands as owners, It is alleged that on a petition tiled on 17.11.1955 by Abdul Hanif certain properties were declared evacuee property under the Act and accordingly, the Asst. Custodian sold the aforesaid land in favour of defendants 1 to 3 (Ext. D(1) on 23.8.1958. They also alleged that apart from title on the basis of oral gift Rukmuddin had also perfected title by adverse possession. They further denied that Rukmuddin never managed the suit lands as Mukhtar-e-am as alleged by the plaintiffs. 6. On the pleadings of the parties 10 issues were framed out of which, according to the learned counsel for the parties, issues nos. 6 to 9 were main issues, which are as follows. "6. They further denied that Rukmuddin never managed the suit lands as Mukhtar-e-am as alleged by the plaintiffs. 6. On the pleadings of the parties 10 issues were framed out of which, according to the learned counsel for the parties, issues nos. 6 to 9 were main issues, which are as follows. "6. Are the plaintiffs entitled to a decree for partition and recovery of possession over 2/3rd share in the suit lands and meane profits, as claimed? 7. Ii the story of oral gift by Noor Ali in favour of Rukmuddin untrue 7 8. Is the order of the Assistant Custodian in question illegal, void and without jurisdiction. 9. Is the suit barred by the provisions of the Administration of Evacuee Property Act and this court has no jurisdiction to entertain the suit? 7. The trial court has at first considered red as to whether Rukmuddin managed the suit lands as Mukhatar-e-am or not. The trial court held that admittedly there is no document to show that Rukmuddin ever acted as mukhtar-e-am as alleged. On consideration of oral and documentary evidence the trial court found and held that Rukmuddin never managed the suit lands as Mukhtar-e-am. 8. The next question which was considered by the trial court was as to whether the plaintiffs or their vendors had any subsisting title and that they ever were in possession and bad the unity of title and possession over the suit land and further that are the plaintiffs entitled to get a decree for parting, recovery of possession and mesne profits. The trial court on consideration of the oral and documentary evidence held that it is clearly proved that Rukmuddin has got the suit lands by oral gift from Noor Ali and that is why Naeem and Bibi Jainab in exhibit F and Raghubans Ojha in exhibit B and 21/b made out a case of oral gift although they falsely alleged in those documents that by the said gift Ali Raja and Bibi Jainab had been given 3/4th share in the suit Khata. Therefore, the admission in exhibits F.B. and 21/b regarding oral gift along must be accepted in view of other materials discussed and the remaining parts of those admissions regarding shares of Ali Raja and Bibi Jainab must be rejected. Therefore, the admission in exhibits F.B. and 21/b regarding oral gift along must be accepted in view of other materials discussed and the remaining parts of those admissions regarding shares of Ali Raja and Bibi Jainab must be rejected. The trial court accordingly held that it is proved that Ali Raja and Bibi Jainab and their sons and for that matter defendants 4th party had never any right, title and interest and possession over the suit lands and since 1916 Rukmuddin and his heirs had been in possession of these lands as real owner on the basis of oral gift, as allegedly contesting defendants and at present defendants 1 to 5 are in possession of these lands since after Kebalas in their favour. It has also been held that circumstances and materials show that the plaintiffs purchased litigation and that they did not acquire any title to the lands in suit on the basis of Kebalas. Exts. 2 and A, 1, on the question of limitation the trial court on consideration of the evidences oral and documentary and laws applicable to the facts of the case found and held that the plaintiffs and their vendors have no subsisting title and they had never been in possession of the suit lands and the plaintiffs have no unity of title and possession and the suit is barred by limitation and, as such, the plaintiffs are not entitled to any decree for partition, recovery of possession and mesne profits as claimed. The trial court further found and held that the story of oral gift in favour of Rukmuddin as alleged by the contesting defendants is correct and his heirs had been in possession of the suit lands since 1916 till kebalas in favour of defendants 1 to 5 were executed. 9. On issues no. The trial court further found and held that the story of oral gift in favour of Rukmuddin as alleged by the contesting defendants is correct and his heirs had been in possession of the suit lands since 1916 till kebalas in favour of defendants 1 to 5 were executed. 9. On issues no. 8 and 9 the trial court held that the Act provides a complete machinery for a person interested in any property to put forward his claim before the authority competent to deal with the question and to goin appeal and in revision if the person interested feels aggrieved and having provided the complete machinery for adjudication of all claims with respect to the evacuee property the Act by section 46 bars the jurisdiction of Civil and revenue Courts to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not an evacuee property. Raghubansh Ojha. Nasim, Ahmad Ali and Neyaz Ali referred objection, appeal and revision before the Custodian department and lost them and, as such, now they cannot agitate the same matter in this Court and, accordingly, held that the suit is apparently barred under the provisions of sections 4(1) 28 and 46 of the Act. 10. It was contended by Mr. Giri, learned Senior Counsel appearing for the appellants that in view of tile fact that the declaration by the Assistant sustodian was made after the cutoff date since after the insertion of section 7 A in the Act, the same vas invalid and void abinitio. According to him, in any view of the matter, since Rukmuddin has not been found to have gone out of country and only his children have gone out of country and that too in 1953 when the document was executed in favour of the defendants, the declaration of the Assistant Custodian is ab initio void and ultra vires section 7-A of the Act. It was further submitted by Mr. Giri that under section 8 of the Act the administration of Evacuee Property does not vet unless it is so declared. Merely because a person and in the present case children of Rukmuddin had migrated to Pakistan in 1953, the deeming clause will not apply. 11. It was further submitted by Mr. Giri that under section 8 of the Act the administration of Evacuee Property does not vet unless it is so declared. Merely because a person and in the present case children of Rukmuddin had migrated to Pakistan in 1953, the deeming clause will not apply. 11. Section 7-A was introduced in the Act on 7.5.1954 whereby notwithstanding anything contained in the Act, no property is declared to be evacuee property since there after except which is covered by the provisio to the said provision, with which we are not concerned in the present appeal Abdul Hamid husband of Bibi Jainubnissa filed a petition on 17.11.1955 for declaration that the property is evacuee on which the Custodian Department passed order on 11.9.1956 declaring 11.40 acres of the suit lands to be evacuee property. The trial court held that in this case there is no declaration as contemplated under section 7-A of the Act. Section 7-A of the Act applies to cases covered by Section 7 (1) of the Act and section 7 (1) applies only to properties other than those which have been automatically vested in the Custodian under Bihar Ordinance III of 1949 and such a vesting cannot be reopened under the Central Ordinance XXVII of 1949 or the Act as it has already vested thereunder by a fiction. According to the trial court, in the instant case what the Assistant Custodian did is that he held that the property in dispute belonged to the heirs of Rukmuddin, who migrated to Pakistan after division of the country in 1947 and as such the property in dispute automatically vested in the Custodian under the provisions of the Bihar Ordinance No. III of 1949. 12. It was contended that the present case is not covered by Bihar Ordinance and/or is the Bihar Act. According to Mr. Ghosh, learned Senior Counsel appearing for the respondents also, the Bihar Ordinance/Act has no application. Bihar Ordinance No. III of 1949 was superseded by Central Ordinance No. XXVII of 1949 which subsequently become Act on 17.4.1950. Accordingly to him, under section 8(2) of the Central Ordinance No. XXVII of 1949 and 8 (i) (a) of the Act, there is automatic vesting of the evacuee property and not dependent on any declaration. Bihar Ordinance No. III of 1949 was superseded by Central Ordinance No. XXVII of 1949 which subsequently become Act on 17.4.1950. Accordingly to him, under section 8(2) of the Central Ordinance No. XXVII of 1949 and 8 (i) (a) of the Act, there is automatic vesting of the evacuee property and not dependent on any declaration. Section 28 gives finality of vesting order passed by the Custodian and section 46 bars the jurisdiction of the Civil Courts. As such, according to him, the plaintiffs-appellants, in any view of the matter, cannot succeed in assailing the order of Assistant Custodian. 13. I am unable to accept the said submission of Mr. Ghosh. Section 8 (2) of the Central Ordinance and section 8 (i) (a) of the Central Act are relevant only where a property is declared to be evacuee property. Section 8 of the Central Ordinance No. XXVII or 1949 provides that any property declared to be evacuee property under section 7 shall vest in the Custodian. Section 8 (1)(a) of 1950 Act provides that any property declared to be evacuee property under section 7 shall be deemed to have vested in the Custodian for the state and under clause (a) of section 8 (1) in the case of the property of an evacuee as defined in sub-clause (1) of clause (d) of section 2, from the date of which he leaves or left and place in a State for any place outside the territories now forming part of India. Thus it is apparent that declaration under section 7 is a must before a property can be said to be an evacuee property. What is deemed is of its vesting after declination, but there is no question of deemed declaration and/or vesting without declaration. Sections 28 and 46 or 1950 Act will have no application to the present case inasmuch as an order which is ultra vires the Act itself cannot attain its finality in terms of the provisions contained in section 28 nor civil court's Jurisdiction is held to be barred under section 46 of the Act. I, therefore, find substance in the submission of Mr. Giri that in the facts and circumstances of the present case after introduction of section 7-A of the Act, there cannot be any valid declaration made with respect to the property in question to be evacuee property. I, therefore, find substance in the submission of Mr. Giri that in the facts and circumstances of the present case after introduction of section 7-A of the Act, there cannot be any valid declaration made with respect to the property in question to be evacuee property. Section 7-A clearly bars such a declaration after introduction of the said provision on 7.5.1954 and in, the present case, Abdul Hai, husband of Sibi Jainubaissa filed a petition itself for such declaration much thereafter i.e., on 17.11.1955. Thus, the declaration made vide order passed by the Assistant Custodian, Arrah in Case no. 41 of 1955 on 13.12.1955, in my opinion, is ultre vires section 7-A of the Central Act, which has overriding effect and no property could be validly declared to be evacuee property on or after 7th May, 1954. 14. Further, I also find that the plea to defend the declaration of the property as evacuee is without any substance. From paragraph 76 of the impugned judgment, I find that there has been inconsistence about Rukmuddin's death and migration. However, the trial court ignored that and proceeded on the question, that the Custodian Department held the property to be evacuee on account of migration of sons and widow of Rukmddin who had migrated to Pakistan and not that of Rukmuddin migration. The court has, however, proceeded on the footing that Rukmuddin died on 25.3.1950 (vide Ext. 22) whereafter his properties devolved upon his sons, daughters and widow and at that time Central Ordinance No. XXVII of 1949 was in force. The Act came in force on 17.4.1950. The trial court proceeded on the footing that the moment the properties in disput devolved upon the sons and widow of Rukmuddin on their migrating to Pakistan after division of the country in 1947, their share in the property becom excuee property and the provisions of automatic vesting under the Bihar ordinance were attracted. Thus, it is held that the Assistant Custodian moved and acted under the provisions of Bihar Ordinance No. III of 1949. 15. I fail to appreciate the said approach of the trial court in justifying the order of the Custodian Department. The matter relating to resting of the property in question came to this court in first Appeal No. 364 of 1957 which arose out of a suit for Specific Performance of contract alleged to have been entered into by Md. 15. I fail to appreciate the said approach of the trial court in justifying the order of the Custodian Department. The matter relating to resting of the property in question came to this court in first Appeal No. 364 of 1957 which arose out of a suit for Specific Performance of contract alleged to have been entered into by Md. Masim and others for sale of their 8 annas share in the property. During the pendency of the appeal, Sukhpal Ojha intervened and was impleaded as respondent no. 5 on the ground that he had purchased the disputed properties from the Custodian by a registered deed of sale dated 23rd august 1958. The court took notice of the argument advanced in the court below that the order of the Custodian under the Act by which the disputed properties vested in the Custodian are void against defendants no. 1 to 3 which was overruled by the court below on the ground that no such plea has been taken by the plaintiff and the same argument was reiterated before this court. The court found this said question, vide Ext. N, foreign to the scope of the suit which was purely for specific performance of Contract. The learned Advocate General appearing for the appellant, however, urged that there could be no bar to the plaintiff bringing a suit subsequently for a declaration that the order of the Assistant Custodian declaring the disputed property as evacuee property under the Act is void and of no legal effect. This court held that unless this is a matter which cannot legitimately be agitated in this court, the plaintiff appellant may, if so advised, bring the suit for such a declaration, but it will be open to the Custodian and to his settlee to raise all objections which are permissible in law, including non maintainability of the suit. 16. It is very clear as to exactly on what date the sons and widow of Rukmuddin migrated to Pakistan. It was contended that the children of Rukmuddian are said to have executed the document in favour of the defendants in the year 1953, i.e. after the Bihar Ordinance stood repealed by the Central Act, 1950. 16. It is very clear as to exactly on what date the sons and widow of Rukmuddin migrated to Pakistan. It was contended that the children of Rukmuddian are said to have executed the document in favour of the defendants in the year 1953, i.e. after the Bihar Ordinance stood repealed by the Central Act, 1950. In that case also the Bihar Ordinance will have no application to the farts of the present case as the Central Act came into force on 11.4.1950 i.e. much prior to migration of Rukmuddin's children and wife sometimes in the year 1953 when the Bihar Evacuee Property Management Act, 1953 was enacted and published in Bihar Gazette dated 1st June, 1955. The said Act has limited scope providing for management of evacuee property belonging to, evacuee, who migrated from Bihar to the province of East Bengal, Pakistan and for matters incidental thereto. As per the definition of the word evacuee in the said Act, it is clear that it applies to the persons leaving the State between 1st October 1946 and 11th April, 1950. According to the finding of the trial court, the property in question has been held to be evacuee on account of the fact that the sons and widow of Rukmuddin had migrated to Pakistan after the death of Rukmuddin in early 1950 and obviously it cannot be before 1953 when document in favour of the defendants was executed by them, Mr. Giri has further rightly submitted that of the property became evacuee prior to 1953, the Kebalas executed by sons of Rukmuddin in 1953 cannot be accepted. So the Kebalas executed by sons and the Custodian cannot be held to be valid. 17. Now the questions remain for consideration as to whether the plaintiffs are entitled to a decree for partition and recovery of possession over 2/3rd share in the suit land and mesne profits, as claimed and whether the story of oral gift by Noor Ali in favour of Rukmuddin is untrue. 18. It was submitted by Mr. Giri learned Senior Counsel appearing for the appellants that the trial court has adopted double standard in discussing and appreciating the evidence of the plaintiffs and the defendants and has wrongly drawn adverse inference from the pleading and evidence in Title Suit No. 52/55 filed by appellants no. 1. 18. It was submitted by Mr. Giri learned Senior Counsel appearing for the appellants that the trial court has adopted double standard in discussing and appreciating the evidence of the plaintiffs and the defendants and has wrongly drawn adverse inference from the pleading and evidence in Title Suit No. 52/55 filed by appellants no. 1. According to him, the plaintiffs were not aware of the power of attorney till 1961 and the present suit was filed after disposal of First Appeal No. 664 of 1957 by this Court decided in favour of the plaintiffs on 29.6.1962. It was submitted by him that the plaintiffs-appellants never questioned the power of attorney in Title Suit No. 152/55 which was filed for specific performance as against Naseem Bibi Jainab and her son. It was further contended what the entire case of the defendants is based on the fact that the entire land of Khasra No. 52 was orally gifted by Noor Ali to Rukmuddm in 1916. Thus, even assuming that there was oral gift, yet in the absence of pleading of acceptance of the same by Rukmuddin cannot be of any avail to the defendants. 19. I find substance in the said submission of Mr. Giri. Section 150 of the Mohammadan Law provides that it is essential to the validity of a gift that there should be delivery of such possession as the subject of the gift is susceptible. Moreover, this is also substantiated by the fact that after the death of Noor Ali name of Ali Raja was substituted in the record of rights, vide Ext. 20 A, which shows that Ali Raja came in possession after the death of Noor Ali. Thus, in my opinion, the story of gift by the defendants is baseless and of no avail. The entry made in Ext. 20-A shows that Rukmuddin’s name has been incorporated in Revenue record as nephew of Ali Raja and does not mention even the name of his father. It was contended by Mr. Giri that even the said entry of the name of Rukmuddin as nephew of Ali Raja after striking off the name of Ali raja is a manipulation as is evident from the fact that it bears no signature of any authority. It was contended by Mr. Giri that even the said entry of the name of Rukmuddin as nephew of Ali Raja after striking off the name of Ali raja is a manipulation as is evident from the fact that it bears no signature of any authority. In any view of the matter, this at best shows that Rukmuddin stepped into the shoes of Ali Raja and did not inherit either though gift or his father from which it can only be inferred that Rukmuddin was acting as manager under the power of attorney executed by Ali Raja and thus even the claim of adverse possession cannot stand. 20. Mr. Ghosh, learned Senior Counsel appearing for the respondent while referring to paragraph 7 of the plaint submitted that the plaintiffs have themselves admitted that Noor Ali had made oral gift of 4 annas to Rukmuddin, 8 annas to Ali Raja and 4 annas to Bibi Jainab. As such, according to him, they cannot now contend that there is no gift made by Noor Ali in favour of Rukmuddin. 21. I am unable to accept the said submission of Mr. Ghosh. In paragraph 7 of the plaint the plaintiffs while narrating the aforementioned facts stated that they were under wrong impression shout the same and, in fact, they later on learnt that no oral gift (Hibba) was ever wade by Noor Ali in favour of Rukmuddin and that Rukmuddin was only looking after the property as Mukhtar e-Am and possessed no title in the same. It was then submitted on behalf of the respondents that the trial court in paragraph 15 onwards has considered about the possession of Rukmuddin since 1916, and held that he was in possession throughout. This is also substantiated from the fact that Naseem and his sister of Ali Raja never applled for mutation whereas the mutation of the rent of Rukmuddin in Ext-20A, about which it is alleged that interpolation was made if read with Exts. K, L and 1/1, substantiated that the mutation in favour of Rukmuddin was validly made and he has been paying rent since 1930-81. It was contended by Mr. Ghosh that non rent receipt has been produced by the plaintiffs-appellants. In fact, Naseem later, vide Ext.6 applied for mutation in place of Rukmuddin but the same was not accepted by the khas Mahal authority. 22. It was contended by Mr. Ghosh that non rent receipt has been produced by the plaintiffs-appellants. In fact, Naseem later, vide Ext.6 applied for mutation in place of Rukmuddin but the same was not accepted by the khas Mahal authority. 22. I fail to appreciate the said submission of Mr. Ghosh. Ext. 20-A, on which reliance has been placed by Mr. Ghosh, itself at best shows that Rukmuddin stepped into the shoes of Ali Raja as his nephew and neither into the shoes of Noor Ali nor of his father Wali Raja. I fail to appreciate that if Rukrmuddin did not inherit the property either directly from Noor Ali or through his father Wali Raja as he predeceased his father Noor Ali, how he got his name mutated as nephew of Ali Raja. The only inference that can be drawn is that he somehow got his name mutated claiming as Mukhtare Am and did not acquire any title over the suit property. 23. Accordingly, the impugned judgment is set aside. The suit is decreed and it is held that the order dated 11.9.1956 passed by the Assistant Custodian, Arrah under the administration of Evacuee Property act is illegal void and without jurisdiction and not binding upon the plaintiffs and defendants 4th set. The defendant first party did not acquire any right, title and possession over the suit land on the basis of Kebalas executed by the heirs of Rukmuddin and the Custodian Department. The plaintiffs are held to be entitled for 2/3rd share in 20 acres 8 decreed of the suit lands as also for recovery of possession over the same with mesne profits. 24. In the result, the appeal is allowed, but without costs. Appeal Allowed.