RSA No. 2563 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARANA AT CHANDIGARH RSA No. 2563 of 1985 Date of decision: 5.9.2011 Custodian General,Punjab,Jalandhar and Ors. Appellants v. Ramji Dass and Others Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. Amit Chaudhary, Deputy Advocate General,Punjab for the appellants Mr.Munish Jolly, Advocate for the respondents ..... JITENDRA CHAUHAN.J. This appeal has been filed by the appellants against the judgment and decree dated 11.4.1985, passed by Additional District Judge (II), Bhatinda. Brief facts of the case are that Ramji Dass etc. Respondents, filed a suit against the Appellants seeking (1) declaration to the effect that they are owners in possession of 8 kanals 6 marlas of land comprised in Khasra No. 835 situated in the area of Village Raman Mandi and (2) for permanent injunction for restraining the defendants from recovering the land revenue in respect thereto and also from dispossessing them forcibly there from first prayer was declined by the trial court whereas the second prayer was accepted and the relief of permanent injunction was granted to RSA No. 2563 of 1985 2 them and their possession thereon was ordered to be kept intact. Feeling aggrieved by the rejection of first part of their claim filed in the suit, the respondents preferred an appeal before the Ist Appellate Court. The case of the respondents/ appellants is that Ramji Dass,plaintiff, Paras Ram, father of plaintiff, appellants 2 to 6 and Chiranji Lal,defendant No.4 had jointly purchased 5 Bighas and 1 Biswas of land comprised in Khasra Nos. 1140/990 and 991 in village Raman Mandi from one Gulam Din on 5.6.1947 for a consideration of Rs. 400/-. The sale deed was scribed and possession was delivered to them on the said date and they were in possession of the property, which was allotted to them in lieu of that land in the course of consolidation proceedings. The defendants were threatening the plaintiffs to dispossess them from the land and to recover the revenue on the pretext that the said land was evacuee property after Gulam Din migrated to Pakistan. It was the further case of Ramji Dass etc. that as they are in possession of the land for the last 30 years, they have acquired the proprietory rights by the efflux of time. Defendants/respondents No. 1 to 3 did not file any written statement. Their defence was ordered to be struck off. The Civil Court observed that it has no jurisdiction to entertain the suit as the property in dispute was evacuee property and partly decreed the suit in the favour of the plaintiffs. In first appeal, it was not disputed before the Ld. Ist Appellate Court that the plaintiffs have purchased the property in lieu of which the land in dispute has been allotted after consolidation from Gulam Din on 15.6.1947 vide sale deed, photo-stat copy of which is Ex/P1 and their possession over the land ever since. The question for consideration before RSA No. 2563 of 1985 3 the Ist Appellate Court was of jurisdiction of the Civil Court to entertain the suit. The Ld. Ist Appellate Court considered the contention of learned counsel for the plaintiffs that the plaintiffs purchased the property from its previous owner Gulam Din in June, 1947 and no declaration was issued by the Custodian General declaring it to be evacuee property, as is required under section 7(a) of the Administration of Evacuee Property Act (for short referred to as the Act). There was no reason to treat it as evacuee property and the Civil Court was competent to entertain the suit. Learned counsel for the plaintiffs urged that the plaintiffs being in possession of the disputed property since June,1947 have ripened their possessory rights into that of ownership. To adjudicate upon the above controversy, the learned Ist Appellate Court, referring to various provisions of Act with regard to jurisdiction of the civil court to entertain the suit, came to the conclusion that the property obtained by any person from an evacuee before 14th Day of August,1947 and in respect of which No Declaration within the meaning of section 7(a) of the Act has been issued on or before 7th May, 1954, such property can not be treated as evacuee property. In the instant case, the position is somewhat same. It is discernible from sale deed Ex.D1 that the property was transferred by Gulam Din to Ramji Dass, plaintiff-appellant and the predecessors of appellants 2 to 6 in the month of June, 1947 i .e. much earlier to the appointed date in the Act and that no declaration to that effect was issued by the Custodian General. It was observed that the Civil Court has the jurisdiction to entertain the suit. While placing reliance on the case of Dr. Rajendra Prakash Sharma v. Gyan Chandra and Others, AIR 1980 Supreme Court, 1206, the Appellate Court, in the concluding para (of judgment dated 17.4.1985) observed as under:- RSA No. 2563 of 1985 4 “7. As is clear from a reading of the observations reproduced above, the facts of the cited case are in pari materia with those of the one in hand and this being so, the principles enunciated therein covers the dispute involved in it on all forms and in these circumstances, therefore, it has to be held that the learned trial Judge was grossly in error in recording a finding that the Civil Court has no jurisdiction to entertain this matter. In the result, therefore, this appeal succeeds and the judgment and decree of the court below in this regard are set aside and their suit stands decreed to the effect that they are declared to be the owners in possession of the property in dispute as specified and detailed in the plaint with no order as to cost. Decree sheet be prepared. The relief of permanent injunction as granted to them by the learned trial Judge also stands affirmed” Aggrieved against the judgment dated 17.4.1985 of the Ld. Ist Appellate Court, the Custodian General and State of Punjab preferred this regular second appeal No. 2563 of 1983, which was admitted on 16.9.1985. In the grounds of appeal, it was pleaded that the Ld. Additional District Judge has reversed the findings of the Ld. Trial court, which is contrary to the provisions of law. Learned counsel for the Appellants, while arguing, repeated the grounds of appeal filed in the present appeal. On the other hand, learned counsel for the respondents argued with great vehemence that the property in dispute is not evacuee property, as no proceedings under section 7 of the Act were taken by the Custodian RSA No. 2563 of 1985 5 General and on May 7, 1954 no proceedings were pending against the respondents-plaintiffs. No notification under section 7(3) of the Act was published in the Official Gazette declaring the property as evacuee property. He submitted that the Ld. Ist Appellate Court rightly accepted the appeal of the respondents-plaintiffs and set aside the findings of the Ld. Trial Court. I have heard the learned counsel for the parties and perused the file. The points for consideration before this Court are:- i) Whether the provisions of the Act applies to the property which was purchased on 5.6.1947; ii) Whether Civil Court has the jurisdiction to entertain the suit of the plaintiffs; iii) Whether the Custodian General declared the property to be evacuee property and taken proceeding under section 7 of the Act before 7.5.1954 or such proceedings were pending on that date ? For the sake of reference, the relevant sections 2,7 and 46 of the Act are reproduced below: “Section 2 (f) “evacuee property” to mean any property of an evacuee (whether held by him as owner or as a trustee or as a beneficiary included any property which has been obtained by any person from an evacuee after the 14th day of August,1947 by any mode of transfer which is not effective by reason of the provisions contained in Section 40), but does not include:- i)Any ornament and any wearing apparel, cooking RSA No. 2563 of 1985 6 vessels or other household effects in the immediate possession of an evacuee; ii)Any property belonging to a joint stock company, the registered office of which was situated before the 15th day of August,1947 in any place now forming part of Pakistan and continues to be so situated after the said date; Section 7 (1) Where the Custodian, is of the opinion that any property is evacuee property within the meaning of this Act, he may after causing notice thereof to be given such manner as may be prescribed to the persons interested, and after holding such inquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. 7A. Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May, 1954: Provided that nothing in this section shall apply to: a) Any property in respect of which proceedings are pending on the 7th day of May 1954 for declaring such property to be evacuee property; and b) The property of any person who on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances had left on or after the Ist day of March 1947, any place now forming part of India, and who on RSA No. 2563 of 1985 7 the 7th day of May 1954 was resident in Pakistan. 46. Jurisdiction of Civil Courts barred in certain matters:- Save as otherwise expressly provided in this Act, no Civil or Revenue court shall have jurisdiction- a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property. In Dr. Rajendra Prakash Sharma's case (supra),while dealing with similar proposition of law, Hon'ble the Apex Court observed as under: “19. From a conjoint reading of Sections 7 and 8, it is clear that the making of a declaration after inquiry under section 7 that the property is 'evacuee property' is a sine qua non for giving the Custodian dominion over the property. If no proceeding is taken under Section 7, there can be no vesting of the property in the Custodian. (See observations in Fazalbhoy v. Official Trustee of Maharashtra, (1979) 2 SCR 699 at p. 712: (AIR 1979 SC 687). 20. The other point to be noted is that in the case of an 'evacuee' falling under sub-clause (i) of the definition of 'evacuee' that is one, who on account of the things mentioned in sub-clause, leaves India or has left India on or after August 14, 1947, the vesting will date from the date he leaves India for any outside destination. In the instant case, Qazi Abdul Rashid left India to settle in Pakistan long after August 14, 1947 (in 1963). 21. Section 9 gives power to the Custodian to take possession of evacuee property which vest in him under section RSA No. 2563 of 1985 8 8. 22. Then, there is Section 7A which was inserted by the Administration of Evacuee Property (Amendment) Act, 1954 (42 of 1954) with effect from May 7, 1954“ Notwithstanding anything contained in this Act, no property shall be declared to be evacuee property on or after the 7th day of May 1954.” This is made subject to two provisos: Clause (a) of the First Proviso saves from the application of this section any property in respect of which proceedings are pending on the 7th day of May, 1954 for declaration such property to be evacuee property. Clause (v) of the Proviso saves from the bar of this section property of any person who became an evacuee on or after the Ist day of March, 1947, and who on the 7th day of May, 1954 was resident in Pakistan. The second Proviso lays down that no notice under section 7 for declaring any property to be evacuee property with reference to Clause (b) of the preceding Proviso shall be issued after the expiry of six months from the commencement of the Administration of Evacuee Property (Amendment)Act, 1954. Then, there are three explanations, which are not material for our purpose. 23 to 25 xx xx xx xx xx xx 26. Section 28 and 46 bar the jurisdiction of courts. Section 28 reads thus: “Save as otherwise expressly provided in this Chapter, every order made by the Custodian-General, Custodian, RSA No. 2563 of 1985 9 Additional Custodian, Authorized Deputy Custodian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings.” 26-A, 27 and 28 xx xx xx xx 29. The matter can be looked at from another angle also. Clauses (a), (c) and (d) of Section 46 postulate that 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 S.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 instant case, Ramji Dass and others jointly purchased the property from Gulam Din on 5.6.1947 for a consideration of Rs. 400/- and the property was transferred to Ramji Dass etc. vide sale deed Ex.D1. A perusal of the language of the statutory provisions of the Act clearly show that the property which has been obtained by any person from an evacuee before 14th August,1947 in regard to which no declaration within the meaning of Section 7(a) of the Act has been issued on or before 7th May, 1954 cannot be treated as 'evacuee property'. The position in the instant RSA No. 2563 of 1985 10 case is exactly the same. No proceedings under section 7 of the Act to declare the property to be an 'evacuee property' were taken by the Custodian against the respondents. No Notification under section 7(3) of the Act was published in Official Gazette declaring the property as 'evacuee property'. When no proceedings were pending on May 7, 1954 declaring the property in question to be an evacuee property, the jurisdiction of the Civil Court to go into this question was not barred by under Sections 28 and 46 of the Act, as has been held in the case of Dr. Rajendra Prakash Sharma (supra). It is held that this Act does not apply to the property in question as the same was purchased on 5.6.1947. It is further held that when the property is not evacuee property, the Civil Court has the jurisdiction to entertain the suit and the fact that the property in question could not be declared evacuee property on 7.5.1954 nor any such proceedings were pending. In view of the above discussion, this appeal fails and is dismissed with no order as to costs. (JITENDRA CHAUHAN) JUDGE 5.9.2011 MS