IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9528 of 2001 SABIR HUSSAIN & ORS Versus THE STATE OF BIHAR & ORS ----------- For the petitioners: Mr. Mangla Roy, Advocate. For Respondent No.5 : M/S V.Nath, Surender Singh,Md. Waliur Rahman & Radha Mohan Pandey, Advocates. For the State: Mr. Satya Deo Kumar, S.C.-12. ----- 06. 11.09.2008. Heard learned counsel for the petitioners, State and the counsel for Private Respondent No. 5(1), who is the purchaser of the property in-question from Banarsi Das, who purchased the properties in an auction proceeding pursuant to the orders of the Custodian in terms of the proceedings taken under the Administration of Evacuee Properties Act, 1950 (hereinafter referred to as “the Act”). 2. Petitioners are the sons of Mir Israil, Suleman and Islam. Private Respondent No.- 5(1) is the purchaser of the property-in-question from Banarsi Das, who was the auction purchaser of the properties of Mir Hasan, son of Mir Usman, who is said to have migrated to Pakistan and after his migration the properties were declared evacuee property by the custodian under the provisions contained in the Act. 3. It is submitted on behalf of the petitioners that Mir Usman, father of Mir Hasan died in the year 1944, much before the creation of Pakistan and in view of such fact Mir Hasan’s properties could not have been declared evacuee property. 4. This Court cannot consider the aforesaid submission at this belated stage since the orders of the - 2 - custodian under the Act as regards the lands in-question have become final. It is then submitted that all through the petitioners have remained in possession of the properties, which fact has even been noticed and accepted by the Director, Consolidation, as would appear from the observations made in paragraph 10 of the impugned order dated 25.04.2001, Annexure-12 and as the petitioners have remained in possession of the lands in-question throughout, the Consolidation Officer and the Deputy Director appreciating the factum of possession recorded the lands in-question in their name, which orders have not been set aside even in the impugned order although error of record has been made in the said order when the Director observed in paragraph 6 that the petitioners lost before the Consolidation Officer, Deputy Collector Land Reforms and Deputy Director of Consolidation but from perusal of the orders passed by the aforesaid authorities, contained in Annexures 5, 7 and 8 it would appear that appreciating the possession of the petitioners the lands have been recorded in their name. 5. Counsel for the private respondent no. 5(1) has opposed the submission and with reference to paragraph 10 of the impugned order dated 25.04.2001, Annexure-12 submitted that the claim of the petitioners as regards the lands in- question has only been found partly correct and on that basis the orders passed by the custodian declaring the lands in- question as evacuee property of Mir Hasan cannot be trifled with. - 3 - 6. Learned counsel for private respondent further submitted that orders of the Consolidation Officer and the Deputy Director were not interfered with by this Court as this Court was of the view that such orders have been passed in favour of the petitioners only on technical ground and not on merits and in view of the aforesaid submissions learned counsel for the private respondent submitted that this Court should not interfere with the impugned order dated 25.04.2001, Annexure-12. 7. Having heard counsel for the parties and having perused the impugned order dated 25.04.2001, Annexure-12 as also the pleadings made in the writ petition, which have not been controverted, I am of the view that petitioners are in possession of the lands in-question notwithstanding the orders made by the custodian under the Act. 8. In the circumstances, I dismiss this writ application with liberty to the petitioners to take appropriate legal action as and when their possession over the property in- question is threatened by the private respondents. P.K.P. (V.N.Sinha,J.)