JUDGMENT : 1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure by the original defendant against the judgment and decree passed by the learned First Assistant Judge, Junagadh dated 08.07.1999 passed in Regular Civil Appeal No.46 of 1999, whereby the judgment and decree passed by the learned Civil Judge Senior Division, Junagadh dated 30.09.1988 passed in Regular Civil Suit No.689 of 1979 came to be confirmed by the First Appellate Court. 2. The appellant is the original defendant and respondent is the original plaintiff before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them, i.e. plaintiff and defendant. 3. The brief facts giving rise to the suit of the plaintiff is that; The plaintiff has purchased the suit lands of survey nos. 1058 and 1068 in the sim of Veraval, District Junagadh vide registered sale deed dated 09.01.1968 from one Allahrakha Dada, heir of Turk Rehman Gani and Dada Gani, the predecessor in title. That the suit lands originally belonged to Alarakha Dada, Turk Husein Noormohmed, Turk Ismail Noormohmed and Turk Rehman Gani. That the lands came to the share of Dada Gani and Rehman Gani under a partition among the brothers. Dada Gani died in the year 1957 at Veraval. 3.1. That the Managing Officer-cum-Mamlatdar by an order No.EVP.6-85 dated 22.12.1971 and EVP.6-85(2) dated 12.01.1972 allotted the suit lands to one Trikamdas Asandas and Rukibai Santdas on the basis of the orders of the Regional Settlement Commissioner, Bombay vide his letter nos. RSCB.M.O.R.A.J.-Refund E.P.No.2233 Veraval-27769/71-70 dated 07.08.1970, RLCB.ASO.Raj.AGRI.land-Veraval : 19735 dated 24.08.1971 and RLCBO.SO.RAJ.(Compensation) 16539 dated 23.07.1971. That these types of allotments were made on the assumption of the facts that the lands were acquired under Section 12 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 by making false entries in the revenue records maintained in the office of the Custodian at Bombay by the concerned interested persons. 3.2. That the plaintiff has filed an appeal before the Collector- cum-Settlement Commissioner, Junagadh against the said order of allotment, but, same came to be rejected by the Collector on 30.06.1973 on the ground that he has no authority. Therefore, the plaintiff had filed a Revision No.RP.:23-73-B.1 before the Authorized Chief Settlement Commissioner, Gandhinagar. 3.2. That the plaintiff has filed an appeal before the Collector- cum-Settlement Commissioner, Junagadh against the said order of allotment, but, same came to be rejected by the Collector on 30.06.1973 on the ground that he has no authority. Therefore, the plaintiff had filed a Revision No.RP.:23-73-B.1 before the Authorized Chief Settlement Commissioner, Gandhinagar. The same came to be rejected on the ground that the heirs of the deceased Trikamdas Assandas have not been joined on the record. The plaintiff has challenged the said order on various grounds which includes that formerly, during the time of the then Junagadh State, all the agricultural lands were owned by the then Junagadh State and the persons cultivating the lands were tenants of the Government. Thereafter, these persons have become the owners of the lands by occupancy right since 01.03.1950. It is contended that even if a person cultivating the land had migrated to Pakistan before 01.03.1950, he being a tenant of the land, the nature of the ownership of the land does not get any change. It is also contended that in the former Junagadh State, the provisions of Junagadh Administration of Evacuee Properties Act, 1948 were applicable. But the agricultural lands were not included in the definition of Evacuee Properties under Section 2 of the said Act. It is contended that therefore, the provisions of Section 8 (2) (a) of the Evacuee Properties Act, 1950 are not applicable to the present land. It is also contended that by merger of Junagadh State into Saurashtra State, a notification of the Government was issued on 01.03.1950 under the Land Revenue Code and under that, the persons cultivating the lands were given occupancy right. It is contended that by virtue of enactment of the administration of Evacuee property Act, 1950, Junagadh Administration of Evacuee property Act, 1948 has been repealed. It is contended that therefore, under the provisions of section 7 of the Evacuee Property Act, 1950, a notice U/s.7 is a mandatory for a declaration of a property as an Evacuee Property. But, no such procedure has been followed and the properties in question have not been declared as Evecuee Properties. It is also contended that, under the provisions of Section 7(a) of the Evacuee Properties Act, 1950, a property cannot be declared as an Evacuee Property after 07.05.1954. But, no such procedure has been followed and the properties in question have not been declared as Evecuee Properties. It is also contended that, under the provisions of Section 7(a) of the Evacuee Properties Act, 1950, a property cannot be declared as an Evacuee Property after 07.05.1954. Further it is contended that in Saurashtra area, the powers were not given to the Deputy Custodian up to the year 1977. Therefore, before the year 1977, no such orders regarding Evacuee Properties could be passed by such Deputy Custodian. According to the plaintiff, the property at the best can be said to be a composite property and in such a case the interests of the person migrating only can be held by the Custodian and the whole land is not required to be acquired by the Custodian. Under all these facts, the plaintiff alleged that the action on the part of the authority in passing the impugned order and intention of taking possession of land from the plaintiff is without any authority of law. On the basis of these facts, the plaintiff has filed a suit for declaration and injunction. 4. The defendant has resisted the suit by filing written statement at Exhibit 20. The defendant has mainly contended that in absence of notice under Section 80 of the Code of Civil Procedure, suit is not tenable and the Civil Court has no jurisdiction to entertain the suit. The defendant has also raised issue of non payment of sufficient Court fees by the plaintiff. However, the defendant has admitted the facts of purchase of the land by the plaintiff vide registered sale deed dated 09.01.1968. However, it is contended that it is illegal as Rehman Husein and Ismail have migrated to Pakistan and they had given power of attorney to Mohmed Husein. It is contended that, as per the directions of the Regional settlement Commissioner, Bombay by his letter dated 24.08.1971, the Co-owners of the lands have not filed their claim for objections before the competent officer at Rajkot Under Section.11 of the Evacuee Interests (Separation) Act and therefore, the entire property has been vested in the custodian. It is contended that, as per the directions of the Regional settlement Commissioner, Bombay by his letter dated 24.08.1971, the Co-owners of the lands have not filed their claim for objections before the competent officer at Rajkot Under Section.11 of the Evacuee Interests (Separation) Act and therefore, the entire property has been vested in the custodian. According to the defendants, as the co-owners of the lands have migrated to Pakistan, automatically, the lands are vested in the custodian under section 80(2) of the Administration of Evacuee Properties Act, 1950 and therefore the lands are acquired as Evacuee Properties under the said Act. It is contended that the Regional Settlement Commissioner, Bombay has declared the properties as the Evacuee Properties and not the Collector has done so. Further it is contended that, as per the letter from the Regional Settlement Commissioner (RSC), Bombay, the Managing Officer-cum- Mamlatdar, Junagadh has passed the orders of allotment of the lands under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, 1954. It is further contended that the suit is not maintainable under Section 36 of the above Act and also under Section 46 of the administration of Evacuee Properties Act, 1950 the defendant has prayed to dismiss the suit with cost. 5. On basis of the pleadings of the parties, the Trial Court has framed the issues at Exhibit 22 as under :- “1. Whether plaintiff proves that the lands bearing survey nos.1058 and 1068 of village Veraval are never vested in government and plaintiff is in possession prior to 1950 ? 2. Whether this court has jurisdiction ? 3. Whether plaintiff proves that land in question is allotted to Trikamlal and by Ruki on 22.12.1971 and 12.01.1972 respectively? 4. Whether plaintiff is entitled for declaration and injunction? 5. What order and decree ?” 6. On the basis of evidence on record and after hearing both the sides, the learned Trial Court has answered the issued in affirmative and has ultimately decreed the suit in favour of the plaintiff. 7. 4. Whether plaintiff is entitled for declaration and injunction? 5. What order and decree ?” 6. On the basis of evidence on record and after hearing both the sides, the learned Trial Court has answered the issued in affirmative and has ultimately decreed the suit in favour of the plaintiff. 7. Being aggrieved and dissatisfied with the aforesaid judgment and decree of the learned Trial Court passed in favour of the plaintiff, the defendant Government has preferred First Appeal under Section 96 of the Code of the Civil Procedure before the District Court Junagadh wherein it has been registered as Regular Civil Appeal No.46 of 1989 and the same came to be heard by the learned Extra Assistant Judge, Junagadh. During the course of hearing, the First Appellate Court has framed the point of determination in para no.8 as follows:- “1. Whether the appellants prove that the judgment and decree passed by the learned Civil Judge (S.D.) Junagadh in R.C.S No:689/79 on Dt:30.09.88 is arbitrary, perverse, capricious in disregard to the legal process, without considering the relevant records, hence, illegal and therefore, null and void? 2. What order and decree?” 8. After hearing both the sides, the First Appellate Court has answered point no.1 in negative and has ultimately dismissed the appeal filed by the defendant Government. Thus, the First Appellate Court has confirmed the judgment and decree of the learned Trial Court. 9. Being aggrieved and dissatisfied with the aforesaid decisions of the both the Courts below, the original defendants have preferred this present appeal on the ground that Courts below have erred in holding that the land in question was never vested in Government and holding that the plaintiff is in possession prior to 1950. It is also contended that the Civil Court has no jurisdiction to entertain the suit. It is also contended that various provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, administration of Evacuee Properties Act, have not been properly appreciated. The appellant-original defendant has raised various substantial questions of law in para 4 of the appeal memo. 10. It appears from the record that the present appeal has been admitted vide order dated 18.12.2001 for the following substantial questions of law :- “1. The appellant-original defendant has raised various substantial questions of law in para 4 of the appeal memo. 10. It appears from the record that the present appeal has been admitted vide order dated 18.12.2001 for the following substantial questions of law :- “1. Whether in the facts and circumstances of the case both the courts have failed to consider that the land was vested in the Government under section 8(2) of the Administration of Evacuee Properties Act 1950 and under sections 11 and section 20 of the Evacuee Interest (Separation) Act 1951 and the respondents took illegal possession and also sold the land illegally. ? 2. Whether in the facts and circumstances of the case both the courts below have erred in not considering the fact that the respondents had filed Revision Application before the Settlement Commissioner under the Evacuee Properties Act and the same was rejected on 16.4.1979 and hence no other proceedings are maintainable before the Court of Law ? 3. Whether in the facts and circumstances of the case both the courts failed to consider that the lands are vested under section 11 of the Evacuee (interests(Separation) Act 1951 and vested in the Custodian and Eviction under the Displaced Persons (Compensation and Rehabilitation) Act 1954 and therefore the Civil Court has no jurisdiction under section 36 of the Displaced Persons (Compensation and Rehabilitation) Act 1954 and section 46 of the Administration of Evacuee Properties Act 1950?” 11. Heard learned AGP Ms.Moxa Thakkar for the State and learned advocate Mr.Viral Shah for the respondent at length. Perused the Records and Proceedings of the Trial Court and the impugned judgments of both the Courts. 12. My finding on the aforesaid substantial questions of law, for the reasons given below, are as under:- 1. In negative. 2. In negative. 3. In negative. Reasons Since all the aspects of all these questions are interwoven, to avoid repetition of the same, all are discussed together. 13. Learned AGP Ms.Moxa Thakkar for the state has vehemently submitted that out of four persons two, have migrated to Pakistan and, therefore, the entire property will be treated as an evacuee properties. She has also submitted that the plaintiff has filed suit for declaration and injunction wherein it has not challenged the original order of the Settlement Commissioner allotting the land to the private parties. She has also submitted that the plaintiff has filed suit for declaration and injunction wherein it has not challenged the original order of the Settlement Commissioner allotting the land to the private parties. She has submitted that even the persons in whose favour the order was passed in the year 1971 and 1972 by the Revenue Authority, namely Trikamdas and Rukiben are not joined as party in the suit though they are effective and necessary parties for adjudication of the dispute. 13.1. Learned AGP has submitted that even the address given in the sale deed is of the residence of Karachi. She has referred to the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 as well as the provisions of the Evacuee’s (Administration of Property) Act, 2006 and has submitted that considering the provisions made in these statutes, the Civil Court has no jurisdiction to decide the dispute raised in the plaint. She has also submitted that even if the original seller has sold the land to the plaintiff, since the original owner had no better title, they cannot give any title to the present plaintiff and the new purchaser. She has also stated that the impugned order of the authority granting the land to third parties have remained unchallenged. She has submitted that both the Courts below have failed to consider these factual and legal aspects and have committed serious error of facts and law in passing decree in favour of the plaintiff. She has submitted to set aside both the judgment and decree of both the Trial Court and allow the present appeal. 14. Per contra, learned advocate Mr.Viral Shah for the plaintiff has submitted that there were special provisions made in respect of the State of Junagadh which was not become independent on the day on which the entire Country got independence. He has submitted that there is no order or any proceedings produced in the matter by the Government to substantiate their plea that the land was ever acquired and vested in the custodian. He has submitted that when the land was never treated as an Evacuee Property by the Government and original coowners were holding the land in questions, the land cannot be declared as an Evacuee property merely by referring it in revenue records. He has submitted that when the land was never treated as an Evacuee Property by the Government and original coowners were holding the land in questions, the land cannot be declared as an Evacuee property merely by referring it in revenue records. He has submitted that since the land in question was not evacuee properties, the reliance placed on the provisions of two Acts by the learned AGP is misplaced. Mr.Shah while referring to the judgments of both the Courts below has submitted that the submissions of the learned AGP have been already dealt with by the Courts below in their judgment. He has submitted that there is a concurrent finding of facts by both the Courts below that the property was in possession with the plaintiff prior to 1950 and the land was never vested in the Government and therefore these concurrent finding of the facts cannot be disturbed in the present Second Appeal by this Court. He has submitted that in reality, there is no substantial question of law involved in this matter as the character of the land has never changed as to evacuee properties. He has submitted that the present appeal is being devoid of any merits be dismissed with cost. 15. Considering the rival submissions coupled with the Records and Proceedings and the judgment of both the Courts below, it is crystal clear that there is concurrent finding of facts recorded by both the Courts below, on the basis of the evidence on record that the plaintiff is in possession of the suit land prior to 1950. There is also a concurrent finding of facts that the land in question has never vested in the Government. This finding of facts is based upon the oral and documentary evidence produced in this matter. Therefore, as a Second Appellate Court this Court has very much limited authority to interfere with such concurrent finding of facts by the Courts below. Unless and until it is shown that the concurrent finding of facts arrived at by the two Courts below is perverse or not based upon the evidence on record or based upon misreading of the evidence on record, the Second Appellate Court cannot interfere with the concurrent finding of the facts. Unless and until it is shown that the concurrent finding of facts arrived at by the two Courts below is perverse or not based upon the evidence on record or based upon misreading of the evidence on record, the Second Appellate Court cannot interfere with the concurrent finding of the facts. Now, considering the material placed on record, it clearly appears that the concurrent finding of facts by both the Courts below is justified as the defendant has not placed on record any oral or documentary evidence to substantiate its stand that the plaintiff was never in possession of the land and that the land was acquired as an evacuee properly by the process of law and it was vested in the Government. 16. Now, the heavy reliance has been placed upon the provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1954. At this juncture it is worthwhile to refer to the provisions of the said Act wherein the term evacuee property has been defined in sub-clause (c) of Section 2 of the Act, which reads as under:- “(c) “evacuee property” means any property which has been declared or is deemed to have been declared an evacuee property under the Administration of Evacuee Property Act, 1950 (XXXI of 1950);” 16.1. Thus, for the purpose of any property becoming evacuee property, it has either to be declared or deemed to be declared under the administration of Evacuee’s Property Act. However, it appears from the record that the defendants have not produced any notification or any order of the competent authority showing that the suit properties have been vested in the custodian or possession was ever taken over by the custodian. The defendant has only produced on record the order of Authorized Chief Settlement Commissioner for Land Reforms and Special Secretary to Government Revenue Department and the order of the Collector-cum- Settlement Commissioner, Junagadh, exhibit 23 and 25. On perusal of both these documents it appears that it only reflects that only on the provisions of the Section 11 of the Evacuee Interests (Separation) Act, 1951, the competent authority has vested these properties in the custodian. But there is no iota of evidence produced by the defendant for fulfilling the condition precedent that the property was vested as evacuee under the provisions of the Act of 1950. But there is no iota of evidence produced by the defendant for fulfilling the condition precedent that the property was vested as evacuee under the provisions of the Act of 1950. There is also no evidence produced by the defendant as to whether any inquiry was ever initiated for declaring the property as evacuee property as well as to the facts that the property was owned by a muslim owner and he has left India at the relevant point of time. 17. It also reveals from the records that there is an admission on the part of the defendant that the suit properties were formerly belonged to the persons from whom the plaintiff has purchased. It also appears that when there is no evidence on record to substantiate the plea of the defendant that property was acquired or deemed to be evacuee property, merely because two co-owners have left India to Pakistan and that to after the year 1950, does not make the property in question as evacuee property automatically. Thus, when there is no iota of evidence as to the nature of the property as evacuee property at any point of time, merely, because in the year 1971-72, allotment letter has been issued in favour of other private respondents, does not change the character of the land in question. Moreover, it also reveals from the evidence on record that even as per the power of attorney given by Ismail and Rehman, son of Noormohmed who have appointed Mohmed Husein, son of Rehman to deal with the aforesaid property dated 19.05.1964, which is produced by the Government itself, wherein it is averred that the property was never declared by the State as an evacuee property and evacuee law is not applicable to them as they are having the possessory rights even in the year 1955, clearly shows that even on that date of power attorney in the year 1964, possession was not taken over by the Government as an evacuee property. Even Government has not produced any revenue record reflecting the facts that the properties in question was evacuee property. Even Government has not produced any revenue record reflecting the facts that the properties in question was evacuee property. It also reveals from the exhibit 72, which is a letter written by the Assistant Settlement Officer to the Collector, Junagadh, wherein it is averred that under Section 11 of the Evacuee Interests (Separation) Act, the whole property is vested in the custodian and there is further request made to the Collector to take over the properties. Thus, on appreciation of this letter, it reveals that till on the date of issuance of letter, i.e. 24.08.1971, no possession was ever taken, any one or who were predecessor in title. At this juncture it is worthwhile to refer to the observations of the First Appellate Court made on page nos.14 and 15 of its judgment as under:- “Even if the entire letter Exh.72 be appreciated in its true meaning and spirit and same be referred in light of the Constitutional Bench Judgment reported in the case of Abdul Hakim Vs. Regional Settlement Commissioner-cum- Custodian of Evacuee Property reported at AIR 1961 S.C. page -1391, the Apex Court have laid down in connection with the Scheme of Evacuee Interest (Separation) Act, 1951 that: “The object of the Act of 1951 is not to vest in the Custodian property which was not evacuee property but to vest in him only the evacuee interest in property after determining or separating, as the case may be, that interest from the interests of other persons in the manner laid down.” Further, in the said decision, the Apex Court have also laid down that:- “Section 11 therefore, cannot vest in the Custodian any property which was not evacuee property; it cannot have the effect of making the entire property vest in the Custodian as evacuee property where the order under s. 7 of the Act of 1950 held that a certain share in it only was evacuee property. It would follow that when s. 11 makes the whole property vest in the Custodian in the absence of a claim having been filed or such claim having been filed but found to be undustainable, it deals with a case where the claim is as mortgagor or mortgagee or to an undivided share in a property where the order under s.7 of the Act of 1950 has declared the whole property to be evacuee property. S.11, therefore, does not warrant an order which purports to vest the entire properties in the Custodian, though the order under s.7 of the Act of 1950 found only a four-seventh share therein to be evacuee property, on the ground that no claims had been submitted after notices under S.6 or the Act of 1951 inviting claims were issued.” 18. So far as non joining of Trikamdas and others is concerned, it is pertinent to note that the heirs of Trikamdas have moved an application before the First Appellate Court for joining them as a party to the petition, which came to be heavily contested by the State Government itself and objected to adding them as party in the matter. The order of the First Appellate Court disallowing this application was challenged before this Court and this Court has confirmed the order of the First Appellate Court. Thus, the point of non joining of Trikamdas and others as raised by the learned AGP before this Court has no legs to stand. 19. Admittedly there is no declaration of the suit property as evacuee property by the Government. Even if, the evacuee property is found to be of a composite property, then a separate inquiry to that point is required to be made for declaration of evacuee property and also for declaration of composite property and thereafter shares of the migratees are required to be separated first and then only remaining property can be declared as evacuee property and could be allotted under Section 24 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954. Now, in the present case, no such exercise of declaration of the suit property as evacuee property been made by the Government and no documentary evidence to that effect has been produced in this case. 20. Now, considering the entire facts and circumstances of the case as well as the impugned judgment of the Trial Court and the provisions of the concerned Act as referred to here in above, it clearly transpires that the learned Courts below have not committed any error of law in interpreting the various provisions and passing impugned decree in favour of the plaintiff. Under the facts and circumstances of this case, therefore, the present appeal is liable to be dismissed. 21. In view of the above discussions, I pass the following final order in the interest of justice. Under the facts and circumstances of this case, therefore, the present appeal is liable to be dismissed. 21. In view of the above discussions, I pass the following final order in the interest of justice. ORDER (i) The present Second Appeal stands dismissed. (ii) Considering the facts and circumstances of the case, parties are directed to bear respective cost of this appeal. (iii) Decree to be drawn accordingly in this appeal. (iv) Along with the copy of this judgment and decree, Records and Proceedings be sent back to the Trial Court.