Appeal No 340 of 1958
Appeal by special leave from the Judgment and Order dated July 3 1953 of the Punjab High Court in Civil Writ Application No 256 of 1952
Jwala Parshad Chopra and J K Hiranandani for the appellants
Nanak Chand R H Dhebar and T M Sen for respondents Nos 1 to 3 1961
April 21
DAYAL J
This appeal by special leave is against the order of the Punjab High Court 153 dismissing the petition of the appellants under article 226 of the Constitution praying for quashing the orders of the Custodian General dated June 17 1952
The appellants and respondents Nos 4 and 5 are residents of village Baland Tehsil and District Rohtak and are members of the body of proprietors of that village
The village Baland is divided between three estates
The plot in suit is in the estate known as Barsan 
One Fakira a mendicant and a non proprietor had his house on the plot in suit
In January 1950 the Custodian of Evacuee Property issued a notice under section 7 of the Administration of Evacuee Property Ordinance No XXVII of 1949 stating that the appellants were in unauthorised possession of the house of Fakira a Muslim evacuee and that the should either vacate the house or show cause to the contrary
The appellants filed their objections to the notice
The Deputy Custodian of Evacuee Property by his order dated September 3 1950 rejected the objections raised by the appellants and declared the house to be evacuee property 
The Deputy Custodian passed this order after he got an enquiry made through the Revenue Assistant Rehabilitation
The appel lants went in appeal to the Additional Custodian Evacuee Property who got further enquiry made to ascertain whether Mumtaz son of Fakira evacuee had been in occupation of the house up to the date of the migration of the Muslims as a result of the partition
This enquiry revealed that Mumtaz had continued to reside in the village Baland and that a son was born to him in July 1947
The Additional Custodian therefore agreed with the report and the order of the Deputy Custodian that the property in suit was evacuee property
The appellants then filed a revision before the Custodian General
It was dismissed on June 17 1952
The Custodian General observed that there was more than sufficient evidence to establish that Mumtaz continued to be in possession of the house in dispute up to July 1947
Thereafter the appellants filed a writ petition in the High Court challenging the legality of the order of the 20 154 Deputy Custodian on the grounds that the Deputy Custodian gave no notice or opportunity to them to meet the case and that the Custodian had no jurisdiction in the matter in view of the provisions of the wajibul arz according to which the house of a non proprietor on his leaving the village vested in the proprietory body
The learned Single Judge who heard the petition held that the provisions of the Administration of the Evacuee Property Act 1950 Act XXXI of 1950 had been complied with throughout and referred the question whether the site occupied by a non proprietor vested or not in the Custodian after the occupier had abandoned it to a larger Bench in view of his opinion that the decision of another Single Judge in Joti Parshad vs Bhawani Lal required re consideration
The Division Bench then decided this question and held the right of a non proprietor to occupy a village site was a right in property though it might not be an interest in property and that this right vested in the Custodian if the non proprietor left the country and became an evacuee
The writ petition was accordingly dismissed and it is against this order that this appeal has been filed
The sole question for determination in this case is whether Fakira had any such right in the property in suit which could vest in the Custodian on Fakira or his son Mumtaz becoming an evacuee
The case for the appellants is that Fakira had no such right which could vest in the Custodian both on account of the terms of the wajib ul arz and on account of his being a licensee
The respondents rely on section 18 of the to rebut this contention
It is necessary therefore to determine the scope of section IS of the Act
Section 18 as originally enacted was substituted by section 8 of Act XI of 1953 which provided that the substituted section shall be deemed always to have been substituted for the original section
Thus the present section must be deemed to be the section existing from the commencement of this Act
Sub section 1 of section 18 is 1 Where the rights of an evacuee in any land 155 or in any house or other building consist or consisted of occupancy rights nothing contained in any law for the time being in force or in any instrument having the force of law or in any decree or order of any court shall extinguish or be deemed to have extinguished any such rights either on the tenant becoming an evacuee within the meaning of this Act or at any time thereafter so as to prevent such rights from vesting in the Custodian under the provision of this Act or to prevent the Custodian from exercising all or any of the powers conferred on him by this Act in respect of any such rights and notwithstanding anything containd in any such law contract instrument decree or order neither the evacuee nor the Custodian whether as an occupancy tenant or as a tenant for a certain time monthly or otherwise of any land or house or other building shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default of a the evacuee committed after he became an evacuee or within a period of one year immediately preceding the date of his becoming an evacuee or b the Custodian The expression occupancy rights  has not been defined in the Act
It is these occupancy rights which are not extinguished in spite of the provisions to the contrary in any other law or in any instrument having the force of law or in any decree or order of the Court
The occasion when they will not be extinguished would be when a tenant becomes an evacuee  within the meaning of the Act or thereafter
It follows that sub section
1 of section 18 provided for the non extinguishment of those occupancy rights which would have been extinguished otherwise on the tenant s becoming an evacuee and that therefore the person having such rights must be a tenant
If he is not a tenant then the occasion contemplated by sub section
1 of section 18 for the application of its provisions does not arise
This is further clear from the latter part of this subsection which provides that notwithstanding anything contained in any law etc
 neither the evacuee nor the Custodian whether as an occupancy tenant or as a 156 tenant for a certain time shall be liable to be ejected or be deemed to have become so liable on any ground whatsoever for any default
This latter part also makes it clear that the persons contemplated by the section are the tenants whether occupancy tenants or tenants for a certain time
We therefore hold that the provisions of section 18 apply to the occupancy rights of a tenant
The next question to determine is whether Fakira was a tenant of this house
It is clear that Fakira who resided in the house in suit was not a tenant of it
He occupied the site and probably built the house himself on getting the necessary permission from the proprietors
With respect to non proprietors the wajib ul arz of the village states No non proprietor can settle in the village or build a house without the consent of the owner of the estate
Whenever anybody settles he obtains land or house from the proprietor of the same and he can live there so long as he pleases
Whenever he abandons the village if the house belongs to the Shamlat ofit falls into the possession of that proprietorAbout the houses of non proprietors  there isno customary right to sell or mortgage residential houses remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts to the possession of the proprietor of the estate in which it is situate
 The mendicants are mentioned as one of the types of non proprietors settled in the Shamlat of the estate
It is clear from these provisions that Fakira a non proprietor had no such right in the site as would make him a tenant of it
He just had a right to occupy it and build a house which was however heritable and transferable only with the consent of the proprietor
It follows therefore that the provisions of sub section
1 of section 18 do not apply to Fakira s rights in the plot in suit and cannot therefore over ride the provisions of the wajib ul arz according to which his right to 157 reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan
Learned counsel for the respondent has further contended that apart from section 18 of the Act Fakira s right to residence in the house in suit will vest in the Custodian as his migrating from the village to Pakistan on partition does not amount to abandonment contemplated by the provisions of the wajib ul arz
It is submitted that the wajib ul arz contemplates voluntary abandonment and not abandonment under force
We find it difficult to accept this contention
The abandonment is voluntary though the volition to abandon arises on account of circumstances over which Fakira bad no control
He left the village and migrated to Pakistan because he thought that to be the better thing to do
This point was also not taken before the High Court
Reliance is placed on the case reported as Associated Hotels of India vs R N Kapoor 1 for supporting the contention that Fakira was a lessee of the land in suit and not a licensee
We do not think this case supports the contention
The following propositions were laid down in that case for determining whether a document creates a licence or a lease 1To ascertain whether a document creates a licence or lease the substance of the document must be preferred to the form
2The real test is the intention of the parties whether they intended to create a lease or a licence
3 If the document creates an interest in the property it is a lease but if it only permits another to make use of the property of which the legal possession continues with the owner it is a licence and 4 If under the document a party gets exclusive possession of the property prima facie he is considered to be a tenant but circumstances may be established which negative that intention to create a lease
The terms of the wajib ul arz already mentioned make it clear that no interest in the site on which Fakira was settled was given to Fakira by the proprietors of the village
He was just granted a heritable 1 1060 1 SCR 368385 158 right to occupy it for residence
The house reverted to the possession of the proprietors if he died heirless
Learned counsel for the respondent has drawn our attention to the observation in the above case to the effect The right of the respondent to transfer his interest under the document although with the consent of the appellants is destructive of any theory of licence
 This observation does not help the respondent s case because no interest was created in Fakira and therefore no question of his transferring that interest arises
The wajib ul arz only expresses this much that there was no customary right to sell or mortgage residential houses remove the material or build burnt brick houses without the consent of the proprietors
It does not say that the non proprietor can transfer his residential right to any one with or without the consent of the proprietor
We therefore do not agree with this contention
It has also been contended for the respondent that the licensee s rights which Fakira bad could vest in the Custodian as they come within the meaning of the expression property 
Even if they do those rights get extinguished in view of the provisions of the wajib ul arz and therefore there could be no vesting of those rights in the Custodian if the vesting of those rights is not prevented on account of the applicability of section 18 of the Act
We have already held that section 18 does not apply as Fakira was not a tenant
The expression evacuee property  as it stood in the Act till its amendment in 1953 meant any property in which an evacuee had any right or interest whether personal or as a trustee or as a beneficiary or in any other capacity and included any property etc
Fakira had no right in any capacity in the property in suit when the came into force in 1950 and therefore the property in suit could not have been evacuee property 
Lastly we do not find any support in the provisions of the wajib ul arz or in any law for the observation in the judgment of the Court below 159 Were the evacuee to come back he could demand to take possession of the site and so it cannot be said that the right has ceased to exist
The right ceases only if the occupier leaves the village permanently with no intention of returning
It was nobody s case that Fakira and his son had left the village temporarily and were to return
It was said in paragraph 5 of the written statement of respondents 1 to 3 that Fakira abandoned the house only in 1947 at the time of partition
The entire case was that Fakira had migrated to Pakistan and had abandoned the village
We are therefore of opinion that Fakira did not possess any such right in the land in suit which could vest in the Custodian and that therefore the property in suit is not evacuee property 
We therefore allow the appeal with costs throughout and setting aside the order of the Court below allow the petition and quash the order of the Custodian General dated June 17 1952 declaring the property in suit to be evacuee property
Appeal allowed


Summary:
The wajib ul arz of village Buland teshil and district Rohtak provided as follows No non proprietor can settle in the village or build a house without the consent of the owner of the estate
Whenever anybody settles he obtains land or house from the proprietor of the same and he can live there so long as he pleases
Whenever he abandons the village if the house belongs to the Shamlat of it falls into the possession of the proprietor About the houses of non proprietors there is no customary right to sell or mortgage residential houses remove the material or build burnt brick house without the consent of the proprietor If any person dies heirless his house reverts 152 to the possession of the proprietor of the estate in which it is situate and mentioned the mendicants as a type of non proprietors settled in the village
One F a Muslim belonging to that class migrated to Pakistan
The appellants who were proprietors took possession of his dwelling house
The Custo dian of Evacuee Property claimed it as evacuee property
The appellants  objection was finally dismissed by the Custodian General who held that the house was evacuee property and vested in the Custodian
The High Court dismissed the appellants  petition under article 226 of the Constitution holding that the right of a non proprietor to occupy a village site was a right in property and vested in the Custodian when the non proprietor became an evacuee
In this Court while the appellants relied on the wajib ul arz on behalf of the respondents reliance was placed on section 18 of the 
Held that section 181 of the Administration of Evacuee Pro perty Act 1950 contemplated tenants whether occupancy tenants or tenants for a certain time and applied only to the occupancy rights of a tenant
Under the wajib ul arz however a non proprietor could have no such right in the site occupied by him as would make him a tenant of it
Section 181 of the Act therefore had no application and the house in question reverted to the proprietors under the provisions of the wajib ul arz when the non proprietor abandoned the village and migrated to Pakistan
It could not therefore vest in the Custodian
It was not correct to say that under the wajib ul arz that F s interest in the house was that of a lessee
Associated Hotels of India vs R N Kapur 1960 1 SCR 368 held inapplicable