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2003 DIGILAW 988 (PAT)

Sarwar Alam v. Jawahar Turha

2003-09-10

P.K.DEB

body2003
Judgment P.K.Deb, J. 1. This appeal has been preferred by the above named plaintiff/ appellant against the judgment and decree passed by the 3rd Sub-Judge, Buxar in Title Appeal No. 100 of 1977 whereby and whereunder the judgment and decree passed by the second Additional Munsif, Buxar in Title Suit No. 97/31 of 1971 -76 has been reversed and the plaintiffs suit has been held to be not maintainable. 2. The suit house Plot No. 1049 and 1050 having measured 16 dhurs and 16 decimals and 10 dhurs and odd respectively have been claimed by the plaintiff and declaration has been sought regarding her title and also for confirmation of possession and alternatively for recovery of possession. Admittedly the suit property belonged to one Abdul Hakim alias Bordhu Mian and Abdul Hamid alias Sahtu Mian sons of Ghafoor Mian of Dumraon, town and soon after partition of the country went to Pakistan in the year 1949 and the said property became Evacuee property and it came in possession of the custodian. The said property was auction sold and one Banarsi Das purchased the same on 25-8-1969 and received sale certificate dated 11-5-1970. The said Banarsi Dassold the disputed property to the plaintiff i.e. the appellant on 14-5-1970 for a consideration of Rs. 800.00 . According to the plaintiff on the basis of that sale deed, he came in possession and he has been coming in possession of the same upto the date of the filing of the suit. His name was mutated in the municipal office but the father of respondent Nos. 1, 2 and 4 and husband of respondent No. 3 Chhotak Mahto forcibly occupied an old room in Plot No. 1050 which was owned by the former owner which was also included in the auction purchase of Banarsi Das and thereafter to the plaintiff/appellant. The said room had not been vacated by the defendants/respondents and hence the suit was filed. According to the respondents first set the suit property belonged to Abdul Hakim and the respondents first sets had purchased the disputed property as described in Schedule A of the plaint orally for a sum of Rs. 50.00 from Sahtu Mian son of Ghafoor Mian about 23-24 years before. According to the respondents first set the suit property belonged to Abdul Hakim and the respondents first sets had purchased the disputed property as described in Schedule A of the plaint orally for a sum of Rs. 50.00 from Sahtu Mian son of Ghafoor Mian about 23-24 years before. Thereafter the respondent first set came in possession of the same and the disputed property never become an evacuee property and the custodian was never in possession of the same. 3. The case of the respondent second set is that the disputed plot of Abdul Hakim who migrated to Pakistand and Schedule-A property became the Evacuee property and custodian came in possession thereon and it has further been stated that the disputed property has been auction sold on behalf of the President of India on 25-8-1969 at Arrah Dak Gunglow. Both parties adduced oral and documentary evidence in support of their respective cases. Plaintiff/appellant had filed entire proceeding of the custodian sale proclamation, the order sheet, the sale certificate etc. the original sale-deed, the mutation order of the Chairman, and the Municipal receipt to prove their title and possession. The defendants could not file a chit of paper regarding their purchase and possession thereof of the whole. The trial Court decreed the suit in favour of the plaintiff but on appeal being preferred the appellate Court had set aside the judgment and decree of the Court below. The appellate Court held that after 7-5-1954 the jurisdiction of the custodian has been terminated regarding declaration of evaucee property and there was no proceeding in this regard pending on 7-5-1954 and thus proceeding of custodian had only been started in the year 1969 when there was no legal authority of the custodian in that respect and he based his finding on AIR 1980 SC 1206 (Rajendra Prakash Sharma V/s. Gyan Chandra). 4. The appeal was admitted by a Bench of this Court by forumlating the following substantial questions of law. "(i) Whether the lower appellate Court has committed an error of law in not holding that the Civil Courts jurisdiction is ousted by virtue of a provisions contained in Secs. 28 and 46 of the Administration of Evacuee Property Act, 1950"? 5. The appeal was admitted by a Bench of this Court by forumlating the following substantial questions of law. "(i) Whether the lower appellate Court has committed an error of law in not holding that the Civil Courts jurisdiction is ousted by virtue of a provisions contained in Secs. 28 and 46 of the Administration of Evacuee Property Act, 1950"? 5. The Whole crux of dispute pivots round a single question as to whether the property was an evacuee property or not and whether such challenge can be made by the defendant in the present suit when a total bar has been there under Sections 28 and 46 of the Administration of Evacuee Property Act, 1950. 6. Before going for appreciating the substantial question of law framed in this appeal the admitted position of factual aspect requires to be reiterated. Plaintiff is a purchaser from Banarsi Das for a consideration of Rs. 800.00 by registered deed dated 14-5-1970. Banarsi Das in turn had purchased the property on auction from the custodian of the Evacuee property on 25-8-1969 and received sale certificate dated 11-5-1970. Order-sheet of the custodian had been marked as Ext. 7, certificate of sale has been marked as Ext. 8 and Ext. 6 is the Government auction of the acquired Evacuee property. Those documents have been claimed to be public documents as contemplated u/s. 40 of the Administration of Evacuee Property Act, 1950 (Hereinafter shall called as the Act). That Abdul Hakim and his brother were the original owners is admitted. According to the defendant second set support is there to the plaintiffs case that it was a evacuee property and was sold in auction by President of India on 25-8-1969. The defendant first set i.e. the respondent first set have claimed to have purchased from the original owners orally on payment of Rs. 50.00 about 23-44 years ago from the date of filing of the written statement which was filed on 15-12-1971. His claim of possession comes from December, 1947 before which already the property has become evacuee property as has been claimed from the side of the plaintiff as per definition of Evacuee u/s. 2 (d)(i) of the Act cut off date being 1-3-1947. The trial Court decreed the suit of the plaintiff holding the property to be Evacuee Property and it was held that the defendant could not prove his oral purchase. The trial Court decreed the suit of the plaintiff holding the property to be Evacuee Property and it was held that the defendant could not prove his oral purchase. The appellate Court also held that oral purchase could not be proved but it was held basing on the decision of 1980 SC 1206 that the property is not a Evacuee property as there was no notification as contemplated u/s. 7(A) of Act. 7. History of Evacuee property should also be reiterated to the effect that before coming into force of the Administration of Evacuee Property Act, 1950 and Rules thereof there were ordinances to that effect in almost all states including Bihar. The Ordinance of the Bihar was named and styled as the Bihar Administration of Evacuee Property ordinance 1949 which was promulgated by the Governor on the 21st June, 1949 but then Central Act was passed in the year 1950 and according to the provisions of that Act all the ordinances of the States are being repealed and being included within the Act itself. Such saving provision is there under Sub-sec. 2(A) of sec. 8 of Act which runs as follows ; "Without prejudice to the generality of the provisions contained in Sub-sec. (2), all property which under any law repealed purports to have vested as evacuee property in any person exercising the powers of custodian in any state shall, notwithstanding any defect in, or invalidity of, such law or any judgment, decree of any Court, be deemed for all purpose to have validly vested in that person, as if the provisions of such law has been enacted by parliament and such property shall on commencement of this Act, be deemed to have been Evacuee property declared as such, within the meaning of this Act and accordingly any order made or other action taken by the custodian or any other authority in relation to such property shall be deemed to have validly and lawfully made or taken". 8. Thus by this saving provision Clause (5) and (6) of the Bihar Administration of Evacuee Property Ordinance 1949 and action thereof is being validated in the present case. 8. Thus by this saving provision Clause (5) and (6) of the Bihar Administration of Evacuee Property Ordinance 1949 and action thereof is being validated in the present case. It is admitted position that soon after partition the real owner had migrated for Pakistan and in that way on the cut-off date the property left by him becomes automatically vested as per Clause (5) of the Ordinances even if no notification or publication is there in the official gazettee then also by the saving clause of sec. 8 of Sub-sec. 2-A the validity of vesting becomes saved. The main ground on which the judgment of the trial Court has been set aside by the appellate Court is that u/s. 7 no notification has been made under the Act and in that way by applying the provisions of Section 7-A the property cannot be declared to be Evacuee Property. It is true that if the vesting is done after coming into force of the Act, 1950 then definitely the proposition as suggested in 1980 SC 1206 and being held by the appellate Court and being strenuously submitted by the learned Counsel for the respondents would have been alright but the present property in question had already been automatically vested under Clause (5) of the Ordinance of 1949 and validated by Sec. 8 of the Act of 1950 even though there is no notification regarding publication in the gazettee as required under Section (vi) of the Ordinance. It should be mentioned here that such official gazetee notification is there or not has not been considered by any Court nor it is there before this Court also and for that reason it may be construed that there was no such publication in the official gazettee in the worst case but then also Sub-sec. 2-A of sec. 8 of the Act 1950 saves such automatic vesting under Ordinance of 1949. The principles enunciated in 1980 SC 1206 is on a different factual aspect than that of the present one. Therein the migration took place in the year 1963 after coming into force of the Act, 1950. In that way the notification is a must otherwise sec. 7-A of the Act would prevail. But the present position and facts of the case is totally akin to 1983 SC 259, (1983) (i) SCC 408 (Hazi Siddik Haji Umar and Ors. V/s. Union of India). In that way the notification is a must otherwise sec. 7-A of the Act would prevail. But the present position and facts of the case is totally akin to 1983 SC 259, (1983) (i) SCC 408 (Hazi Siddik Haji Umar and Ors. V/s. Union of India). That case related to the Central Act of 1950 and the ordinances of the UP. Government which was also akin to the Ordinance of Bihar as already stated above. Therein it has been held distinguishing the judgment delivered in 1980 SC 1206 in the following manner : "The effect of sec. 8 (2-A) is that what purported to have vested under sec. 8 (2) of Ordinance XXVII of 1949 and which is to be deemed to be vested u/s. 8 of the Act which repealed that Ordinance, notwithstanding any invalidity in the original vesting or any decree or order of the Court shall be deemed to be evacuee property validly vested in the custodian and any order made by the custodian relation to the property shall be deemed to be valid. Thus retrospective effect is given to the Act to validated" (1) what purpots to be vested; (2) removes all defects or invalidity in the vesting or fictional vesting u/s. 8 (2) of Ordinance XXVII of 1949 or sec. 8(2) of the Act which repealed the ordinance (3) makes the decrees and judgments to the contrary of any Court in regard to the vesting ineffective; (4) makes the property evacuee property by its deeming effect; and (5) validates all orders passed by the custodian in regard to the property." 9. In that way in the present case also when automatically there was vesting by the Ordinance of 1949 which has again been validated u/s. 8 (2-A) of the Act 1950 the question of any notification u/s. 7 or 7-A of the Act 1950 are redundant. In this respect there may be reference to another case of the Apex Court as reported in (1975) 1 SCC 21 (Assistant Custodian Evacuee Property and Ors. V/s. Brij Kishore Agarwala and Ors.). Therein also it has been held that under Secs. 5 and 6 of the UP. Evacuee Property Ordinance, 1949 where a property has become automatic vested the vesting remains as it is even after coming into force of the Act, 1950. V/s. Brij Kishore Agarwala and Ors.). Therein also it has been held that under Secs. 5 and 6 of the UP. Evacuee Property Ordinance, 1949 where a property has become automatic vested the vesting remains as it is even after coming into force of the Act, 1950. Notification as required under the Displaced Person Act may be construed to be a necessary one for the purpose of knowing as to which property has already been vested and it cannot be held that without such notification the vesting which had already been made under the ordinance can be questioned. 10. It was argued vehemently by the learned Counsel for the respondent that when an action is found to have been taken only in the year 1969 by the custodian in making auction sale then such action can be construed to be an illegal one when there is nothing contrary to it to show that it has been vested. Such submission has got no legs to stand when under the provisions of the Ordinance as already held vesting become automatic then action taken in the year 1969 cannot be questioned. Reference may be made to a judgment of this Court as reported in 1969 BLJR 828 (F. Rahman V/s. Managing Officer). Thus, ail those challenge regarding the vesting it could be found by fiction of law that the suit property had already been vested by the Ordinance of 1949 and such vesting has been saved after parliament enacted the Act of 1950 by specific provisions of sec. 8 (2-A). 11. Now on the factual position if the contesting defendants could prove that their purchase was before vesting then perhaps there would have been a case in their favour but the way they have stated so it appears that they claimed possession only from the month of December, 1947 when on 1-3-1947 by a definition of Evacuee Property had already been vested. Then the question comes in as to whether the appellate Court committed error in holding that there was no vesting and, as such, the contesting defendants, respondents have perfected their title by right of adverse possession. Then the question comes in as to whether the appellate Court committed error in holding that there was no vesting and, as such, the contesting defendants, respondents have perfected their title by right of adverse possession. The possession has been claimed from December, 1947 and by that time already the property has become Evacuee property and custodian becomes the State Government, and hence for adverse possession 30 years interrupted, Possession is required to be proved with other ingredients of adverse possession for perfecting title but here on the face of it 30 years have not passed before the suit was filed so. In any case the defendants/respondents cannot have any title over the land. Now comes to the substantial question of law framed. Before going to it the provisions of Secs. 28 and 46 are required to be reiterated. sec. 28 runs as follows : "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." 12. Thus, on the face of that provisions the defendant is debarred from challenging the order passed by the custodian regarding auction sale. Similarly Sec. 46 of the Act which runs as follows : "46. Jurisdiction of Civil Courts barred uncertain matters.--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 to or interest in any property is or is not evacuee property; or 2 (* * * **) (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." 13. If vesting is there then the same cannot be questioned by the contesting defendants in the suit but then one questions may come in that directly no challenge is there about the action of the custodian but the question has arisen in the civil suit as an ancilliary one when the plaintiffs title is dependent on the property being vested under the Act and Ordinance. In that way in my view the bar as contemplated under Secs. 28 and 46 of the Act may not be construed to be a total bar of the defendants in questioning the vesting via-media in the suit while challenging the title of the plaintiff. 14. From the above discussion I hold and find that the appellate Court committed error in holding that the property had not been vested as Evacuee property and the action of the custodian was mala fide rather from the facts and circumstances of the case the plaintiff has got definite title through the custodian of the Evacuee property and the defendants could not be able to prove his title either by oral purchase or by perfecting title by adverse possession. 15. In that way the appeal is allowed and the judgment of the appellate Court in Title Appeal No. 100 of 1977 is hereby set aside upholding the judgment and decree passed in Title Suit No. 67/31 of 1971-76. In the facts and circumstances no order as to costs.