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2019 DIGILAW 584 (RAJ)

Mohd. Ibrahim v. State of Rajasthan

2019-02-19

SANJEEV PRAKASH SHARMA

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JUDGMENT Sanjeev Prakash Sharma, J. - The petitioners by way of this writ petition pray for directing the respondents not to interfere with the possession of the petitioners on the house No.18/28 situated in village Ranawas District Pali and in the alternative to hand over the possession of the property of which physical possession has been taken by the respondents; and further to accept sale price of the house as determined by the managing officer. Further prayer has been made to dispose of the appeal preferred by the predecessor of the petitioner No.1 expeditiously and till then petitioners be allowed to use and occupy the property in question. 2. Learned counsel for the petitioners submits that the interim order was passed initially while admitting the writ petition vide order dated 23.09.1993. However, from the perusal of the file, record and order-sheet, it is noticed that on 10.04.1995, the adinterim order dated 23.09.1993 was vacated by the Court. On 01.04.2010, again prayer was made by learned counsel that there is an interim order passed on 23.09.1993 and the Court directed the Registry to trace the file of the stay application. Learned counsel has not been able to show as to whether the order of vacating the stay on 10.04.1995 was ever recalled or modified. 3. Learned counsel for the petitioners has argued the matter at length on merits and submits that the petitioner Mohd. Ibrahim had become owner of the property in view of the gift deed executed in his favour by Noor Jahan who was wife of Subhanji and Subhanji was having tittle of the property in question. 4. Learned counsel further submits that the claim proceedings relating to property of Akbar by the custodians were challenged by Noor Jahan by filing claim proceedings 81/JU/61 for the composite property of house No.18/28 Ranawas District Pali. It is his submission that the State Competent Officer passed an order on 17.11.1962 but did not decide the same for want of jurisdiction. It is his further submission that an appeal was preferred against the said order before the Managing Officer, Ajmer but the same stood undecided and the facts regarding the said appeal are not known to the petitioners. It is his further submission that an appeal was preferred against the said order before the Managing Officer, Ajmer but the same stood undecided and the facts regarding the said appeal are not known to the petitioners. The petitioners further submitted that no notice was issued in terms of Section 6 of the Evacuee Interest (Separation) Act, 1951 (hereinafter referred as "Act of 1951") to the petitioners and therefore the proceedings undertaken for vacating the property was unjustified and illegal. 5. It is further submitted that the petitioners are also ready to deposit any amount due for the evacuee property and further submit that since the appeal has not been decided, till the same is decided by the concerned appellate authority, the petitioners would be entitled to continue to be in possession and the respondents need not interfere with their possession. Further, it is submitted that if the sale price of the house is determined, the petitioners may be allowed to deposit the same and the property be peacefully handed over and possession cannot be dinied. 6. Learned counsel appearing for the State has submitted that the petitioners have come up with vague averments and vague submissions. There is no document to show that there was an appeal preferred against the order dated 17.11.1962 passed by the Court of State Competent Officer. From the perusal of the order dated 17.11.1962, it is apparent that notices were issued under Section 6 of the Act of 1951 where after the claimant preferred the claim proceedings. The order dated 17.11.1962 specifically mentioned that claim form has been filed by Noor Jahan widow of Subhanji for half share of house No.18/28 and notices were duly issued but the general notice has yet not been published. A finding has been arrived at that the claimant's claim is not tenable as the claimant's husband was only a tenant in the house of Akbar and the property is an acquired property. Thus, Mohd. Noor Jahan could not have gifted the property to the petitioner as she had no tittle on it. The claim of the petitioners is not made out. 7. Thus, Mohd. Noor Jahan could not have gifted the property to the petitioner as she had no tittle on it. The claim of the petitioners is not made out. 7. During the pendency of this writ petition, directions were issued by this Court to Collector, Pali and respondent No.3 - the Competent Authority under the Act of 1951 and the Appellate Authority to transmit the entire relevant record pertaining to the proceedings under taken in relation to the disputed evacuee property claim. Affidavit on behalf of respondent District Collector, Pali has been filed by the SDO and it has been mentioned that the District Collector, Pali has asked the Secretary to the Government Rehabilitation and Resettlement Department, Jaipur to provide the details of the authorities posted at relevant time. But it has been informed that the record is not available with the department. The SDO states that apparently, no appeal has been preferred against the order. Learned counsel submits that no case for interference is made out. The petitioners have no rightful claim on the evacuee property and the same ought to be dismissed. 8. I have heard learned counsels at length and finds that the property situated in village Ranawas bearing House No.18/28 was an evacuee property and Noor Jahan submitted her claim. After the evidence was recorded and arguments were heard, claim in Form-A was filed for half of the share in House No.18/28. The custodian in his written statement has denied the claim stating that the claimant's husband was only a tenant in the house of Akbar and property is an evacuee property. In support of the claim, the Noor Jahan got herself examined and other witnesses Jamal & Mst. Chanda were also examined who stated that the house of Subhanji and Fateh Mohammad are separate and the claimant lives in the house of Fateh Mohammad as tenant and it was noticed that Noor Jahan was living as tenant and therefore no question of her share arose. The State Competent Officer thus closed the matter and returned the file. 9. It appears that a notice was sent to petitioner No.2 on 22.06.1992 again asking the petitioner to give details as to how he was in possession of the evacuee property to which the reply has been sent by counsel of petitioner No.2, wherein it has been stated that the property is that of petitioner No.1 Mohd. 9. It appears that a notice was sent to petitioner No.2 on 22.06.1992 again asking the petitioner to give details as to how he was in possession of the evacuee property to which the reply has been sent by counsel of petitioner No.2, wherein it has been stated that the property is that of petitioner No.1 Mohd. Ibrahim and so far as the property which has been claimed to be evacuee property, the same has already been sold to one Tarachand and the amount has to be claimed from one Tarachand S/o Kashturji. Order under section 6 of the Specific Relief Act, has been passed in the Court of Munsif and Judicial Magistrate, Sojat District Pali dated 05.11.1981 which appears to be a civil suit preferred by Mohd. Ibrahim against one Sikander Khan and Ahamad Khan for claiming possession, wherein a different story has been set up by Mohd. Ibrahim Khan who alleges that the defendant therein had encroached upon the house of Noor Jahan. In the written statement, defendant has submitted that Noor Jahan has sold the property to one Tarachand on 22.09.1973. The concerned Court has reached to the conclusion that part of the possession was with Noor Jahan and she was wrongly dispossessed. 10. However, from the said document which are on record, no case can be said to be made out to prove that Noor Jahan was the owner of the property and that she had tittle or claim for the same as per the order passed by the concerned competitive officer. The said Noor Jahan was merely a tenant to the property and thus, she could not have direct claim for the evacuee property. The petitioner has also not been able to show that any appeal was preferred against the said order or any order was passed by the Appellate Court in their favour. 11. Proceedings under writ jurisdiction are limited and this Court would not be in the position to declare the tittle of any individual on the property. Admittedly, the property is an evacuee property acquired and therefore the petitioners cannot claim their ownership or tittle thereto. Their claim made under Section 6 has been rejected. The order passed have not been challenged. Proceedings under writ jurisdiction are limited and this Court would not be in the position to declare the tittle of any individual on the property. Admittedly, the property is an evacuee property acquired and therefore the petitioners cannot claim their ownership or tittle thereto. Their claim made under Section 6 has been rejected. The order passed have not been challenged. Accordingly, this Court is of the view that no relief can be granted to the petitioners in the present case and the interim order had already been vacated in the year 1995. 12. This Court expects that the respondent would have taken appropriate steps. However, if they have not taken any further steps for the possession, they may now proceed further accordingly. In view of the aforesaid findings and conclusions, the present writ petition is found to be without merit, the same is dismissed.