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2012 DIGILAW 932 (PAT)

Md. Iqbal v. State Of Bihar

2012-07-05

MUNGESHWAR SAHOO

body2012
ORAL JUDGMENT Mungeshwar Sahoo, J. 1. The plaintiffs are appellants. The plaintiff’s Title suit No.4/93 for declaration that the order dated 10.12.1981, 13th July, 1985 and 11th June, 1971 passed by the consolidation authorities i.e., defendant No.2 to 4 are illegal, arbitrary and are not binding on the plaintiff and further for declaration of the plaintiff right title over the suit property has been dismissed by the trial Court. On appeal, the appellate Court also dismissed the appeal. Both the Courts below recorded clear finding that the suit property have already been declared as evacuee property. 2. On 11.01.2008, this appeal was admitted and the following substantial question of law were formulated :- (i) Whether in the absence of any denial in the written statement filed by the defendant No.1 to 4 regarding the statement of the plaintiff that there was neither any notification under section 7 nor there was any enquiry under section 7A of the Administration of Evacuee Property Act, the lower Court should have held that the suit property is not evacuee property? (ii) Whether the finding of the Courts below that the disputed property is evacuee property is correct? (iii) Whether a property transferred after 1947 can be declared evacuee property? (iv) Whether without following the provision of section 7 of the Administration of Evacuee Property Act of giving notice to the interested person the finding of the Court below will be vitiated. 3. All the aforesaid substantial questions of law relates to the question of declaration of the suit property as evacuee property. The learned counsel for the appellant submitted that the question that property is evacuee was never raised by the respondent before any Court or before the Consolidation authority. In the consolidation proceeding also, the State of Bihar never raised this point. It is only in appeal against the order passed by the consolidation authority, this plea that the property is evacuee property was taken. The appellants are continuing in possession of the property. Since the defence was that the property was declared as evacuee property, it was the burden on the part of the defendant to have produced the Notification under section 7 of the Administration of Evacuee Property Act, 1950 but no such documents or notification was produced by the respondents but even then the consolidation authorities held that the properties had already been declared as evacuee property. The learned counsel further submitted that the plaintiffs categorically stated that there was no notification under Section 7 of the Evacuee Property Act and there is no denial on the part of the respondent to that fact and, therefore, both the Courts below have wrongly held that the suit property was declared as evacuee property. In such circumstances the Judgment and Decree passed by both the Courts below are vitiated and liable to be set aside. The learned counsel further submitted that the transfer was made by Aisa Khatoon in favour of appellant was in the year 1945, therefore, the same could not have been declared evacuee property and further that without following the provision as contained in Section 7 of the Administration of Evacuee Property Act of giving notice to the interested persons, the property could not have been declared as evacuee property. 4. On the other hand, the learned counsel appearing on behalf of the respondent submitted that since both the Courts below have recorded a finding that the property has already been declared as evacuee property finding that Aisa Khatoon had already migrated to Pakistan, Central Government, i.e., Union of India was necessary party. The State of Bihar in the written statement categorically stated that the property vested in the custodian appointed by the Central Government but in spite of that fact, the plaintiff did not add Union of India as party-defendant in the case and in absence of the Central Government, the question raised by the plaintiff cannot be decided and moreover the jurisdiction of Civil Court is barred under the Act. 5. The learned counsel appearing on behalf of the private respondent supported the submissions of the learned counsel appearing on behalf of the appellant. 6. From perusal of the Judgment of the lower appellate Court, it appears that the lower appellate Court considered various documentary evidences and oral evidence and came to the conclusion that the property had already been declared as evacuee property. Both the Courts below have disbelieved the case of the appellant that Aisa Khatoon did not migrate to Pakistan. The first substantial question of law formulated relates to issuance of Notification under Section 7 of the Administration of Evacuee Property Act, 1950. Both the Courts below have disbelieved the case of the appellant that Aisa Khatoon did not migrate to Pakistan. The first substantial question of law formulated relates to issuance of Notification under Section 7 of the Administration of Evacuee Property Act, 1950. According to provision of the Evacuee Property Act under Section 6, the Central Government appoints a custodian and as many additional deputy or assistant custodians of evacuee property as may be necessary. Now, therefore, whether there was Notification under Section 7 or whether the authorities i.e., the custodian proceeded according to Evacuee Property Act cannot be decided in absence of the Union of India. In the present case, admittedly, Union of India has not been made party instead of the objection taken by the State Government. The learned counsel for the appellant submitted that the property came in possession of the State of Bihar. So far this submission is concerned only because State of Bihar got the possession through Central Government, this question whether the provision of law was complied with or not cannot be decided in absence of the Central Government. 7. Section 46 of the Administration of Evacuee Property Act, 1950 bars the jurisdiction of the Civil Court to entertain or adjudicate upon any question whether any property or any right or interest, in any property is not evacuee property. All the substantial questions of law formulated in this second appeal relates to as to whether the property could have been declared as evacuee property or not. 8. In the case of Ram Gopal Reddy Vs. Addl. Custodian evacuee property A.I.R. 1966 SC 1438, a Five Judges Bench of the Hon’ble Apex Court held that any person claiming the property as a transferee from evacuee must proceed under the Act and cannot file a suit. Admittedly, in the present case, the plaintiffs are claiming title through Aisa Khatoon who has already been declared as evacuee and her property as evacuee property. In view of the above facts now the Civil Court cannot examine as to whether there was no notification or whether the order declaring Aisa as evacuee and property as evacuee property has been passed without following the provision as contained in the Evacuee Property Act. 9. It appears that both the Courts below on the basis of the documents held that the property has already been declared as evacuee. 9. It appears that both the Courts below on the basis of the documents held that the property has already been declared as evacuee. The remedy of the appellant was to proceed according to the Evacuee Property Act but instead of approaching the appeal or revisional authority against the order declaring the property as evacuee property, the plaintiffs filed the present suit in the year 1993 for the first time. In this suit, the correctness or otherwise of procedure or issuance of notification cannot be examined after such a long period, particularly when jurisdiction itself is barred. 10. In view of the above facts and circumstances of the case, in my opinion, Central Government was necessary party in the present suit and in absence of the necessary party, the Courts below have rightly held that the suit is bad for non-joinder of necessary party. Moreover, the jurisdiction of the Civil Court is barred under Section 27 read with Section 46 of the Evacuee Property Act, 1950. The substantial questions of law formulated are, therefore, does not arise for decision in the second appeal as the jurisdiction of the Civil Court itself is barred. 11. The learned counsel for the appellant submitted that on the ground of non-joinder of necessary party, the suit cannot be dismissed. So far this submission is concerned, it will not apply in cases of necessary party as provided under Order 1 Rule 9 of the Code of Civil Procedure. The further glaring fact in this case is that in that suit itself, the Stare of Bihar raised objection that the suit is bad for non-joinder of necessary party as Union of India. 12. In the result, I find no merit in this second appeal and none of the substantial question of law formulated arises in this appeal. Accordingly, this second appeal is dismissed.