Case: Gorkha Ram &amp; Others Vs. Custodian General of India, Delhi &amp; Others

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, heirtable and transferable only with the consent of the proprietor.8. It follows, therefore, that the provisions of sub-sec. (1) of S. 18, do not apply to Fakiras rights in the plot in suit and cannot therefore override the provisions of the wajib-ul-arz according to which his right to reside in the house in suit came to an end when he abandoned the village on his migrating to Pakistan.9. Learned counsel for the respondent has further contended that apart from S.18 of the Act. Fakiras right to residence in the house in suit will vest in the Custodian as his migrating from the village of 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 had no control. He left the village and migrated to Pakistan because he though that to be the better thing to do. This point was also not taken before the High Court.10. Reliance is placed on the case reported as Associated Hotels of India v. R. N. Kapoor, AIR 1959 SC 1262 (1269) : (1960) 1 SCR 368 (384) 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 :(1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form.(2) The real test is the intention of the parties whether they intended the 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 continuance 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 right to occupy it for residence. The house reverted to the possession of the proprietors if he died heirless.11. Learned counsel for the respondent has drawn our attention to the observation at p. 1270 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 respondents 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 burat brick houses without the consent of the proprietors. It does not say that the non-proprietor can transfer his residential right to anyone with or without the consent of the proprietor. We therefore do not agree with this contention.12. It has also been contended for the respondent that the licensees rights which Fakira had, 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 S. 18 of the Act. We have already held that S. 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 and c. Fakira had no right in any capacity in the property in suit when the Administration of Evacuee Property Act came into force in 1950 and therefore the property in suit could not have been evacuee property.13. 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 :"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 nobodys case the 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.14. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 the sub-sec. (1) of S. 18 provided for the non-extinguishment of those occupancy rights which would have been extinguished otherwise on the tenants 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-sec. (1) of S. 18, for the application of its provisions, does not arise. This is further clear from the latter part of this sub-section which provides that notwithstanding anything contained in any law etc., neither the evacuee nor the Custodian, whether as an occupancy tenant or as a 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 time certain. We therefore hold that the provisions of S. 18 apply to the occupancy rights of ais clear that Fukira 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 themendicants 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, heirtable and transferable only with the consent of the proprietor.8. It follows, therefore, that the provisions of sub-sec. (1) of S. 18, do not apply to Fakiras rights in the plot in suit and cannot therefore override the provisions of the wajib-ul-arz according to which his right to reside in the house in suit came to an end when he abandoned the village on his migrating tofind it difficult to accept this contention. The abandonment is voluntary, though the volition to abandon arises on account of circumstances over which Fakira had no control. He left the village and migrated to Pakistan because he though that to be the better thing to do. This point was also not taken before the Highdo not think this case supports theterms 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 right to occupy it for residence. The house reverted to the possession of the proprietors if he diedobservation does not help the respondents 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 burat brick houses without the consent of the proprietors. It does not say that the non-proprietor can transfer his residential right to anyone with or without the consent of the proprietor. We therefore do not agree with thisif 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 S. 18 of the Act. We have already held that S. 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 and c. Fakira had no right in any capacity in the property in suit when the Administration of Evacuee Property Act came into force in 1950 and therefore the property in suit could not have been evacuee property.13. Lastly, we do not find any support in the provisions of the wajib-ul-arz or in anywas nobodys case the 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.14. 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.