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2012 DIGILAW 1092 (PAT)

Md. Hanif Ahmad v. Bibi Fatma

2012-08-07

MUNGESHWAR SAHOO

body2012
JUDGMENT MUNGESHWAR SAHOO, J. 1. The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 19.05.1990 passed by 1st A.D.J., Bhagalpur in Title Appeal No.59 of 1986 dismissing the appeal and thereby confirming the trial court judgment dated 30.08.1986 passed by 3rd Additional Sub Judge, Bhagalpur in Title Suit No.114 of 1978 whereby the plaintiff’s suit was dismissed. 2. The plaintiff filed the aforesaid suit for declaration of his right, title and interest with respect to suit land measuring 30 decimals in Mauja Puraini more fully described in Schedule I of the plaint. According to the plaintiff, the suit land belonged to Md. Abdul Basit who was also the ex-landlord and after vesting, the said Abdul Basit became the Raiyat and regularly paid rent to the State. He died in 1973 leaving behind one sister, Bibi Rokaiya Khatoon who came in possession and sold the same on 30.12.1974 to the plaintiff. However, the defendant got her name recorded in the khatiyan finally published on 24.11.1970 with respect to suit land. 3. The defendant’s case is that the suit land had already been declared evacuee property being properties of evacuee namely Abdul Bin Quadir and his family who had migrated to Pakistan in Evacuee Property Case No.56 of 1951 in which Abdul Basit, brother of Abdul Bin Quadir filed objection which was rejected then the lands were declared as evacuee property. Subsequently, it was auction sold on 29.08.1953 which was purchased by Banarsi Das, a displaced person in whose name sale certificate was issued. Said Banarsi Das sold the suit land by the registered deed dated 31.01.1965 in favour of the defendant. Therefore, the suit is barred under Section 46 of Administration of Evacuee Properties Act, 1950. The trial court found that the property was auction sold by custodian in favour of Banarsi Das and the plaintiff did not acquire valid title by sale deed dated 30.12.1974. The suit is barred under Section 46 of the Administration of Evacuee Property Act. The plaintiff failed to prove his possession over the suit property. Accordingly, the suit was dismissed. The appellate court recorded a finding that the propertyoriginally belonged to Abdul Bin Quadir who became evacuee and Banarsi Das purchased from the custodian and sold to defendant who is in possession. The sale deed executed by Bibi Rokaiya in favour of plaintiff conveyed no title. Accordingly, the suit was dismissed. The appellate court recorded a finding that the propertyoriginally belonged to Abdul Bin Quadir who became evacuee and Banarsi Das purchased from the custodian and sold to defendant who is in possession. The sale deed executed by Bibi Rokaiya in favour of plaintiff conveyed no title. The jurisdiction of Civil Court is barred under Section 46 of the Administration of Evacuee Property Act. Accordingly, the appeal was dismissed. 4. On the date of admission i.e. on 05.11.1992, the following substantial questions of law were formulated:- I. Whether the jurisdiction of the civil court was barred under section 46 of the Administration of Evacuee Property Act? II. Whether Ext.5 series, Register II and 3 series, rent receipt, in the name of Abdul Basit could be legally discarded even in absence of any proof showing the title and possession of anyone else over the suit lands? III. Whether in the absence of any right or title of the said Abdul Bin Quadir and in view of the obvious illegalities in the orders of the authorities concerned the defendant or her vendor could acquire any title? IV. Whether the judgment of Evacuee Case No.46 of 1951 filed by the plaintiff as Ext.7 was rightly ignored by the learned courts below, although it fully proved that the suit property was never declared Evacuee property? 5. The learned counsel, Mr. Abbas Haider submitted that since there was no notification under Section 7 of the Administration of Evacuee Property Act, the jurisdiction of Civil Court is not barred. The learned counsel relied upon 1980(3) Supreme Court Reports 207 (Dr. Rajendra Prakash Sharma vs. Gyan Chandra and others) on this point. The learned counsel further submitted that the Register II, rent receipts in the name of Abdul Basit could not have been disbelieved by the courts below which clearly proved title of Abdul Basit. Moreover, both the courts below did not consider the judgment of Evacuee Case No.46 of 1951(Exhibit 7) which proved that the suit property was never declared evacuee property and, therefore, the judgments of both the courts below are vitiated. 6. On the other hand, nobody appeared on behalf of the respondent. 7. The specific case of the defendant-respondent is that the property belonged to evacuee namely Abdul Bin Quadir who had migrated to Pakistan and his properties were declared as evacuee property. 6. On the other hand, nobody appeared on behalf of the respondent. 7. The specific case of the defendant-respondent is that the property belonged to evacuee namely Abdul Bin Quadir who had migrated to Pakistan and his properties were declared as evacuee property. In that evacuee property case, Abdul Basit, brother of Abdul Bin Quadir filed objection which was rejected on 30.05.1952. So far non-consideration of Exhibit 7 is concerned, it may be mentioned here that the judgment itself shows that Abdul Bin Quadir was declared as evacuee and some of the properties were declared as evacuee including the property of Puraini. Moreover, the sale certificate has been produced by the defendant which clearly shows that 10.73 acres land of Abdul Bin Quadir was declared as evacuee property. On the basis of these materials, the courts below came to the conclusion that the property was declared as evacuee property. According to the plaintiff, the property belonged to Abdul Basit. Now, therefore, the question for decision in this case is whether the suit property is evacuee property or not. Be that as it may, Exhibit 7 proves that Abdul Bin Quadir and his family were declared evacuee who had already migrated to Pakistan. 8. Admittedly, both the courts below have held that the suit property belonged to Abdul Quadir which was declared as evacuee property. In the case of Ramgopal Reddy vs. Additional Custodian Evacuee Property, Hyderabad, AIR 1966 Supreme Court 1438, 5 Judges Bench of the Apex Court held that where the property or any right to or interest in any property undoubtedly belonged to the evacuee or any transferee from the evacuee claims the property or any right to or interest therein he has to available of the remedies provided under the Act. If he fails to do so he cannot file a suit in the civil court or revenue court to have the question whether any property or any right to or any interest therein is or is not evacuee property decided in view of the clear provision of Section 46(a) of the Administration of Evacuee Property Act, 1950. Therefore, the jurisdiction of the Civil Court is barred for deciding the question as to whether the suit property is evacuee property or not. Therefore, the jurisdiction of the Civil Court is barred for deciding the question as to whether the suit property is evacuee property or not. Both the courts below have held that it was declared evacuee property and Assistant custodian sold the property in auction sold in favour of Banarsi and sale certificate was issued. Exhibit 7 also proves that Abdul Bin Quadir migrated to Pakistan prior to 1951 and some of the properties were declared evacuee and notices were issued for giving details of other properties. 9. So far the submission of the learned counsel for the appellant that these suit properties have not been declared as evacuee is concerned, both the courts below have concurrently found that the properties have been declared as evacuee. So far the submission of the learned counsel that the suit plot and khata numbers have not been mentioned in Exhibit 7 is concerned, it may be mentioned here that it is not the case of the appellant that there is no identity between the lands of Exhibit 7 and the suit land. On the other hand, the case of the plaintiff was that the suit property belonged to Abdul Basit, brother of Prof. Abdul Bin Quadir. On the contrary, the defendant’s case is that this suit property was declared as evacuee property. Therefore, there was no dispute between the parties regarding identity of the land or difference between the description in Exhibit 7 and this suit land. Moreover, when the finding recorded by both the courts below is based on admissible evidence then the appellant cannot be allowed to say that the evidence on which the finding of fact has been recorded is not adequate. Therefore, non-consideration of Exhibit 7 will not vitiate the judgments of both the courts below. 10. Further, both the courts below found that the appellant never came in possession on the basis of sale deed in the year 1974 whereas it was found that the defendant-respondent came in possession on the basis of purchase from Banarsi who got it through sale certificate issued by custodian. 11. So far substantial question no.3 is concerned, the illegalities or otherwise of the orders of the authorities passed under Administration of Evacuee Property cannot be the subject matter of jurisdiction of Civil Court. 11. So far substantial question no.3 is concerned, the illegalities or otherwise of the orders of the authorities passed under Administration of Evacuee Property cannot be the subject matter of jurisdiction of Civil Court. So far substantial question no.4 is concerned also, it may be mentioned here that Exhibit 7 judgment itself speaks that notices were again issued for giving details of other properties of the evacuee. Therefore, it is not final judgment concerning all properties. In view of the above facts, on the basis of Exhibit 7 only, it cannot be said that the suit properties were not declared as evacuee and non-consideration thereof will not vitiate the judgments of both the courts below. 12. So far the decision relied upon by the appellant i.e. the case of Dr. Rajendra Prasad Sharma(supra) is concerned, it may be mentioned here that both the courts below found that there was no enquiry or notification under Section 7 of the Administration of Evacuee Property Act. The Apex Court also held that making of a declaration after enquiry under Section 7 that the property is evacuee property is a sine-qua-non for giving the custodian dominion over the property. In that case, the so called evacuee, Abdul Rashid was residing in India and managing the suit property and collecting the rent till 1963 and then he migrated to Pakistan and it was found that no steps were taken under the Evacuee Property Act. It was also recorded that no proceeding was pending prior to 7th of May, 1954 for declaration of the property. Here, in the present case, it is admitted fact that the evacuee and his family already migrated to Pakistan prior to 1951 and the properties in suit have already been declared as evacuee. Therefore, whether enquiry under Section 7 or notification under the provision was issued or not issued cannot be decided in civil suit before the Civil Court. Moreover, it is not the case of the appellant that no proceeding or notification was issued under the Evacuee Property Act. Therefore, in my opinion, the decision relied upon by the appellant is not applicable in the present case. 13. Moreover, it is not the case of the appellant that no proceeding or notification was issued under the Evacuee Property Act. Therefore, in my opinion, the decision relied upon by the appellant is not applicable in the present case. 13. So far substantial question no.2 is concerned also, on the basis of Exhibit 5 series, Register II and 3 series, rent receipts, the title cannot be declared on the evacuee property as the jurisdiction is barred under Section 46 of the Administration of Evacuee Property Act. 14. In the result, I find that both the courts below have rightly held that civil suit is barred under Section 46 of the Administration of Evacuee Property Act and non-consideration of Exhibit 7 has not vitiated the judgment. Therefore, the substantial questions of law formulated are decided against the appellant. Accordingly, this Second Appeal is dismissed.