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2014 DIGILAW 1871 (RAJ)

Pushkar Lal v. Kamal Singh

2014-11-20

NISHA GUPTA

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JUDGMENT 1. - This second appeal under Section 100 C.P.C. has been filed against the judgment and decree dated 7.8.1982 passed by Addl. Civil Judge, Bharatpur in Civil Appeal No. 30/1982 confirming the judgment and decree dated 11.8.76 passed by Munsiff & Judicial Magistrate, Bharatpur in Civil Suit No. 41/66. The brief facts leading to tiling of this second appeal are that the plaintiff-appellant filed a suit in the court of Munsiff & Judicial Magistrate, Bharatpur against respondents for declaration and possession. The case of the plaintiff is that he purchased the property from the Custodian Department, Rajasthan. He is the owner of the property. Amir Hussain used to reside in the property since 1957. His possession was declared illegal by the Custodian Department and it has also been informed to Amir Hussain that the property has been sold to the plaintiff and the possession be handed over to him and for the same, suit for declaration and possession has been filed which was dismissed by the court below and appeal has also been dismissed, hence this second appeal has been filed which was admitted on 3.8.83 on the following substantial questions of law:-- (i) whether the learned two courts below could have entertain the question as to whether the property in question has been declared as evacuee property or not and if so, whether such declaration was according to law? (ii) Whether in the facts and circumstances in the present case any notice under Section 7 of the Act of 1950 was required to be given to Smt. Johra when at no stage she claimed to be the owner of the property in question nor any document of title had ever been produced by her? (iii) Whether a presumption of regularity of all official acts could have been drawn in favour of the appellant on the basis of various documents produced by him from the Custodian Department and had been proved as such where the property in question was shown to be evacuee property and in such circumstances whether it was open to the learned lower courts to have examined the correctness of such declaration? (iv) Whether when the property had been vested in the Central Government free from all encumbrances and even it was sold to the plaintiff was it open to the learned two courts below to decline to grant the relief of declaration of appellants' title of property in question when the defendant could not place any material to show though it had never vested in the Central Government? 2. The contention of the present appellant is that he purchased the property as evacuee property from the Custodian Department but the court below has gone into the question whether declaration of evacuee property was according to law or not which is bared under Section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (hereinafter referred to as the 'Act of 1954') and when property has been declared evacuee property as per the provisions of Administration of Evacuee Property Act, 1950 (in short Act of 1950) bar under Section 46 of the above Act will apply and civil court could not go into the question whether any property is evacuee property or not. Under the Act of 1954, the respondents were free to file an appeal under Section 22 and 23 but no objections have been raised by the respondents. Under the Act of 1954, the respondents were free to file an appeal under Section 22 and 23 but no objections have been raised by the respondents. Even DW/5 Lalit Kishore Chaturvedi has specifically stated that it was an evacuee property and basic property register as regards the evacuee property has been submitted and civil court was not in its jurisdiction to go into the legality of the declaration of evacuee property hence the issue should be decided in favour of the appellant.Per contra, the contention of the respondents is that it is true that as per bar of Section 27 and 46 respectively in the Acts of 1954 and 1950, the Court cannot go into the question of validity of the declaration of the evacuee property but here in the present case, no notification under Section 7 of the Act of 1950 was issued, the appellant has not placed any such notification that the disputed property was ever declared evacuee property and in absence of notification of Section 7, powers to acquire evacuee property for rehabilitation of disabled persons under Section 12 of the Act of 1954 could not be acquired and when no proceedings under Section 7 or 12 was initiated, the civil court was within his jurisdiction to look into the matter whether at any time the property has been declared evacuee property or not and his further contention is that after 7th May. 1954 no property could be declared evacuee property as per the provisions of Section 7-A of Act of 1950 and here in the present case, Ex. 6 which has been relied upon by the appellant himself clearly states that order for enquiry has been passed on 27.2.1960 and vide order Ex. 6, it has been ordered that order of 27.2.1960 be complied with. Meaning thereby that till that date, the disputed property has not been declared evacuee property and in basic property register also column is blank as regards the notification declaring the present property as evacuee property which fortified the contention of the respondents that property has never been declared evacuee property and it is a settled proposition of law that a person cannot pass better title than he has. 3. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case. 4. 3. Heard the learned counsel for the parties and perused the judgments and decree under appeal as well as the original record of the case. 4. In the present case, the contention of the appellant is that he is the owner of the property as he has purchased the property from the custodian and Ex. 1 deed of conveyance has been placed on record to fortify his contention Ex. 6 order of the Assistant Custodian, Alwar dated 12.6.64 and basic property register Ex. A/11 have been submitted but bare perusal of Ex. 6 order of the Assistant Custodian, Alwar clearly speaks that an application has been filed on behalf of the appellant as regards the boundaries and measurement of the property and vide order dated 27.2.1960, an enquiry has been ordered which was further fortified by the order dated 12.1.64 Ex. 6 but in Ex. 6 also nothing has been stated that any notification under Section 7 of the Act of 1950 or under Section 12 for the Act of 1954 was issued to declare the disputed property as evacuee property and in the absence of the notification, the court below was right in holding that the disputed property never declared evacuee property and this fact has further been fortified by entries in Ex. A-11 the basic property register in which Column No. 4 is blank where the date of gazette notification on which the property has been declared as evacuee property was to be mentioned. 5. The further contention of the appellant is that court cannot go beyond the proceedings of declaring any property as evacuee property and relied upon Haji Siddik Haji Umar & Ors. v. Union of India, AIR 1983 SC 259 and M/s. Haji Esmail Noor Mohammad & Co. & Ors. 5. The further contention of the appellant is that court cannot go beyond the proceedings of declaring any property as evacuee property and relied upon Haji Siddik Haji Umar & Ors. v. Union of India, AIR 1983 SC 259 and M/s. Haji Esmail Noor Mohammad & Co. & Ors. v. Competent Officer, Lucknow & Ors., AIR 1967 SC 1244 where it has been held that question whether any property is evacuee property, determination for the same is barred by civil court and contention of the appellant is that looking to the provisions of Section 27 and 46 of the Act of 1954 and 1950, no civil court can entertain any suit or proceedings in which the question whether any property is or not an evacuee property arises and only contention of the appellant is that both the courts below has committed a grave illegality and judgments are without jurisdiction as they have gone into the question whether particular property is evacuee property or not when the appellant has purchased the property as evacuee property by virtue of Ex. 1, he is the owner of the property and his suit should have been decreed. There is no dispute about the proposition that as per the provisions of Section 46 and 27 of the respective Acts, the civil court cannot go into the question of validity of the orders passed under the respective Acts which deals with the administration of evacuee properties but here in the present case, both the courts below have categorically held that there is no notification which was essential under Section 7 and 12 of the Acts of 1950 and 1954 respectively and respondent has rightly relied upon Dr. Rajendra Prakash Sharma v. Gyan Chandra & Ors., AIR 1980 SC 1206 wherein it has been held:' "Section 46 will not bar the jurisdiction of the Civil Court where the Custodian has never declared the property as evacuee property after taking proceedings under Section 7, AIR 1968 SC 169 , Rel. on The matter can be looked at from another angle also. Clauses (a), (c) and (d) of section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication the power of the Custodian-General or the Custodian under this Act of 1950 to determine that question is subsisting. on The matter can be looked at from another angle also. Clauses (a), (c) and (d) of section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication the power of the Custodian-General or the Custodian under this Act of 1950 to determine that question is subsisting. That is to say, if at the point of time when the question arises, the power of the authorities constituted under this Act to adjudicate that question stands terminated or extinguished by the operation of Section 7A of 1954, none of the clauses (a), (c) and (d) of section 46 will bar the jurisdiction of the civil court to determine that question which had not been decided by the custodian during the period, he had the power to determine it. In the present case, no proceedings under section 7 of the 1950 Act to declare the suit house as evacuee property were taken by the Custodian against Qazi Abdul Rashid. No notification under sub-section (3) of section 7 published in the official Gazette has been placed on the record. Nor was it shown that any proceedings initiated under section 7 of the Act to declare it evacuee property were pending on May 7, 1954, and the question of saving those proceedings under the proviso to section 7A did not arise. Held that after May 7, 1954, the Custodian had no jurisdiction to declare the property in question as evacuee property. The jurisdiction of the civil courts to go into this question was thus not barred by anything in Sections 28 and 46. Where the property which was never declared as evacuee property under Section 7 of the Administration of Evacuee Property Act, 1950, and thus never formed part of the compensation pool, was sold by the authorities under the 1954 Act, the jurisdiction of the civil court to go into the question as to the finality of the order of sale is not barred under Section 27. The sale could not be made under the 1954 Act for the reason that it was never declared evacuee property. Only that property which was evacuee property could be acquired under section 12 and form part of the compensation pool which satisfies the definition of "evacuee property" given in section 2(c) of the 1954 Act. The sale could not be made under the 1954 Act for the reason that it was never declared evacuee property. Only that property which was evacuee property could be acquired under section 12 and form part of the compensation pool which satisfies the definition of "evacuee property" given in section 2(c) of the 1954 Act. If the property was never evacuee property, as defined in section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 or the Rules framed under this statute. The words "under this Act" occurring in section 27 are significant. They show that those orders which are not made by any officer or authority in accordance with the provisions of this Act, but outside the provisions of this Act in excess of jurisdiction, can be called in question in the civil court. The language of section 27 is not as wide as that of section 46 of the 1950 Act., AIR 1968 SC 457 , Disting Second Appeal No. 34 of 1978 D/- 23.8.1978 (All), Affirmed." 6. In the light of the above, in the present case also no proceeding under Section 7 to declare the properties in question to be an evacuee property were issued by the Custodian and in absence of any notification under Section 7 of the Act of 1950 Section 12 of the Act of 1954 could not become operative. Under Section 12 of the Act of 1954, only such property could have been acquired which were declared evacuee property under Section 7 of the Act of 1950 and if the property was never declared evacuee property which could not form part of the compensation pool and could not be sold by the custodian. Under Section 12 of the Act of 1954, only such property could have been acquired which were declared evacuee property under Section 7 of the Act of 1950 and if the property was never declared evacuee property which could not form part of the compensation pool and could not be sold by the custodian. Section 27 of the Act of 1954 is implicitly clear that any orders made under the Act could not be challenged in the civil courts, but here in the present case, no order under the Act of 1954 or 1950 has been challenged but there is a clear absence of notification under Section 7 of the Act of 1950 and 12 of the Act of 1954 and when the property has not been declared evacuee property the appellant has utterly failed to prove his title and courts below have not entered into the question about the legality or declaration of the evacuee property but rightly held that the property was never declared evacuee property and in view of the law laid down in Dr. Rajendra Prasad (supra), this was within the jurisdiction of the courts below. 7. In view of the above, the courts below were justified in entertaining the question as to whether the property in question ever declared evacuee property or not and rightly held so that the property in dispute never declared as an evacuee property and when no notification has been issued under Section 7 of the Act of 1950, the property could not vest in the custodian as per the provisions of Section 8 of the Act of 1950 and when the property was not vested in custodian, it could not be sold to the appellant and no title passes to the appellant as the sale was without jurisdiction and issue No. 1 is decided accordingly against the appellant. 8. As regard Issue No. 2, the contention of the respondent was that notice under Section 7 was issued to respondent as he was in possession of the property. 8. As regard Issue No. 2, the contention of the respondent was that notice under Section 7 was issued to respondent as he was in possession of the property. This issue could not be looked into as per law laid down in Hazi Siddik Haji Umar (supra), the civil court cannot determine the validity of the proceedings and as earlier held that no notification under Section 7 of the Act of 1950 has been issued, hence there was no occasion for any notice to be issued to the respondent and issue No. 2 also remains decided against the appellant. 9. As regards issue No. 3, it has been stated that when Custodian Department has initiated the proceedings as per the presumptions under Section 114(e) of the Indian Evidence Act, it has to be presumed that official acts have been performed regularly and correctness of the same could not be looked into by the courts below, as held while deciding issue No. 1, the court below have not examined the correctness of the declaration but here in the present case, there is no declaration under Section 7 of the Act of 1950 and 12 of the Act of 1954 and same finding are good for issue No. 4 as the custodian department could not pass any title to the appellant. 10. It has been contended that defendant had not placed any material to show his claim and the suit should have been decreed. It is settled proposition that the plaintiff should stand on his own legs and he cannot take benefit out of the weakness of the defendant's case and courts below have rightly declined to grant the relief prayed for. 11. All the issues stand decided against the appellant as there is no declaration as under Section 7 and 12 of the Acts and courts below have rightly considered the evidence of the parties and in the light of the law laid down in Dr. Rajendra Prasad (supra) no fault can be found in the concurrent finding of the courts below which are based on correct appreciation of facts and application of law. There is no ground to interfere with the concurrent findings of both the courts below and the appeal is liable to be dismissed. Consequently, the appeal is dismissed.Appeal Dismissed. *******