Case: Dr. Rajendra Prakash Sharma Vs. Gyan Chandra and Others

The plaintiff, Dr. Rajendra Prakash Sharma, is the appellant before us. He filed a suit in the court of the Civil Judge, Bulandshahar, alleging that the house in dispute was owned by one Qazi Abdul Rashid, son of Qazi Abdul Razak. Qazi Abdul Rashid had let out this house to Dr. Bhu Deo Sharma, father of the appellant, who was paying rent for the same to Qazi Abdul Rashid. He further alleged that the said Abdul Rashid had migrated to Pakistan and the house in dispute was declared evacuee property under the then existing law. Later on, it was put to auction on January 29, 1969 under Section 20 of the Displaced Persons (Compensation &Rehabilitation) Act, 1954, and was purchased by the plaintiff for a consideration of Rs. 1, 000/-, and the appellant was declared purchaser of this property with effect from April, 1, 1969. Sale Certificate, dated March 19, 1969, was also issued in hisfurther pleaded that the defendants-respondents had also filed Suit No. 67 of 1970 for ejectment and arrears of rent against the appellants father, Bhu Deo Sharma. The suit was decreed on May 10, 1971, and that in pursuance of that decree they were trying to dispossess the plaintiff- appellant He further stated that since he was not impleaded in the ejectment suit, he was not bound by that decree. On these facts, the plaintiff-appellant claimed a declaration of his title to the property in question and further prayed for a perpetual injunction restraining the defendants from dispossessing him in execution of the Ir said decree obtained by the defendants in Suit No. 67 of 1970.The defendants resisted the suit. They denied that the property in dispute was ever declared evacuee property or that it was ever acquired under the provisions of the Act of 1954. They asserted that the appropriate authorities never passed any order under Section 7 of the Administration of Evacuee Property Act declaring this property to be evacuee property. The contesting defendant, Gyan Chandra, further pleaded that Qazi Abdul Rashid had only 1/16th share in the house in question which was purchased by the defendants father (since deceased) and, therefore, the defendants are exclusive owners of the house. Gyan Chandra further alleged that Qazi Abdul Rashid had migrated to Pakistan in the year 1967, long after he had transferred his interest and share in the house in question; that Dr. Bhu Deo Sharma, father of the appellant had in collusion with the Custodian Department, pre pared fictitious proceedings relating to the sale of the house in question; that the Custodian Department had no jurisdiction to declare the property in suit as evacuee property, much less could they sell it under the Act of 1954. According to the defendant, the auction if any held, was a nullity having been brought about by misrepresentation andtrial court held that Qazi Abdul Rashid was not the owner of the house in question; that the entire proceedings taken by the Custodian Department were illegal and without jurisdiction and the plaintiff did not acquire any title by virtue of the sale held by the Authorities under the Displaced Persons Compensation and Rehabilitation) Act (No. 44 of 1954) (for short, called the 1954 Act). In the result, the trial court dismissed the plaintiffsappeal, the Additional District Judge, Bulandshahar affirmed the findings of the trial court. He held that the jurisdiction of the civil n court was not barred by section 46 of the Administration of Evacuee Property Act (No. 31 of 1950) (hereinafter called the 1950 Act) to go into the question whether or not the matter had been adjudicated upon by the Authorities under that Act. It found that no inquiry, as contemplated under Section 7 of Act 31 of 1950 was held and no Notification was issued by the Authorities under that Act, declaring the suit property to be evacuee property. It held that Abdul Rashid had no title or interest, whatever, in the house in question after July 31, 1953, when, in accordance with the decree of the Civil Court in the partition Suit No. 289 of 1953, Phool Chand had deposited Rs. 343/ regarding the value of 1/6th share of Abdul Rashid in this property. on the deposit of that amount, Phool Chand and his sons had become sole owners of the property in question and the plaintiffs father became their tenant of the suit property. It was in that capacity that a decree for ejectment was passed against him and in favour of the respondents. In the result, it was held that since the property had never been declared evacuee property after following the prescribed procedure under the Act and the Rules framed thereunder, the rights of the defendants respondents remained unaffected by the auction held by the Custodian Department and the consequent issue of the sale certificate in favour of the plaintiff-appellant.The High Court affirmed the concurrent findings of the two courts below and dismissed the Second Appeal preferred by the plaintiff. It agreed with the lower appellate court that the auction in favour of the plaintiff-appellant was a nullity and wholly without jurisdiction and did not confer any rights on him be cause the suit property had never been declared as evacuee property in accordance with law. It also held that Abdul Rashid was in India much after the repeal of the U.P. Ordinance 1 of 1949 and consequently there was no question of the property vesting automatically in the Custodian under the aforesaid ordinance. The High Court, however, granted six months time to the plaintiff-appellant to deliver vacant possession of the suit house to the defendants-respondents without the intervention of theobtaining special leave under Article 136 of the Constitution, the aggrieved plaintiff has now come in appeal before thisAbdul Rashid obtained a money decree in suit No. 523 of 1935 against one Ami Chand S/o Phool Chand and brother of present respondents (original defendants 1 to 4). In execution of that decree, he purchased with t he permission of the court, the share of Ami Chand in 1937. At that time, apparition suit No. 3 of 1931 amongst the family members of the said Ami Chand was pending in the Court of the Civil Judge, Bulandshahr. Qazi Abdul Rashid did not join as a p arty in the said partition suit. However, he instituted Suit No. 452 of 1949 against the said Phool Chand and others in the court of the Munsif, Khurja for partition and separate possession of his share. The suit was contested. The Munsif decreed the suit holding that Qazi Abdul Rashid had 1/16th share in the house in question and one other shop. Applying the provisions of Section 4 of the Partition Act, the Munsif evaluated Qazi Abdul Rashids 1/16th share in the suit house at Rs. 343/and directed the sale of thataggrieved by the said decree, Qazi Abdul Rashid preferred Civil Appeal No. 289 of 1953. The First Appellate Court by its judgment, dated December 20, 1954 (Ex.partly allowed the appeal and modified the decree of the trial court in so far as it related to the shop. But it upheld the decree of the trial court in so far as it related to the house now in question, whereby Phool Chand defendant was required to deposit Rs. 343/as the value of Qazi Abdul Rashids share. In accordance with the decree affirmed by the First Appellate Court, Phool Chand on July 31, 1953 deposited Rs. 343/1) to the credit of Qazi Abdul Rashid, the then plaintiff in the Court. Qazi Abdul Rashid being aggrieved by the decree of the First Appellate Court, preferred Second Appeal No. 235 of 1955 in the High Court. The High Court dismissed this appeal as abated by an order, dated February 25, 1959 (Ex.due to the failure of Qazi Abdul Rashid to take proper steps for substitution of the legal representatives of the then respondents 7 and 11, who had died during the pendency of the appeal.During the pendency of the said litigation, Phool Chand and his two sons , Gyan Chand and Raghbur Sharan, instituted Suit No. 323 of 1953 in the court of the Munsif, Khurja for the recovery of the damages for use and occupation of the house in dispute against Qazi Abdul Rashid. By a judgment dated September 30, 1959 (E x.the trial court decreed that suit against Qazi Abdul Rashid. Aggrieved by that judgment and decree, Qazi Abdul Rashid preferred Civil Appeal No. 461 of 1959 which was partly allowed by the First Appellate Court on December 21,trial court furtherthis finding has been upheld by the First Appellate Court and the High Court that Abdul Rashid definitely remained in India at least till 1963, if not till 1965. Upto 1963, he was directly receiving rent from his tenant, the father of the present plaintiffappellant, in respect of the suit house. This was held primarily on the basis of documentary evidence (Ex.view of the fact that Qazi Abdul Rashid remained in India I continuously upto 1963, no question of automatic vesting under the I U.P. Ordinance No. 1 of 1949, could arise. That ordinance was not applicable to him at all. For our purpose, only the 1950 Act and the 1954 Act are relevant. It will, therefore, be worth while to notice, very briefly, the material provisions of these statutes.

Reasoning: view of the fact that Qazi Abdul Rashid remained in India I continuously upto 1963, no question of automatic vesting under the I U.P. Ordinance No. 1 of 1949, could arise. That ordinance was not applicable to him at all. For our purpose, only the 1950 Act and the 1954 Act are relevant. It will, therefore, be worth while to notice, very briefly, the material provisions of thesea 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 ofis clear from the facts concurrently found in the instant case that Qazi Abdul Rashid was throughout residing in India and personally managing the suit property and collecting its rent till 1963. He migrated or went away from India for good sometime in 1963 or thereafter . Therefore, if the Custodian had not taken any proceedings under Section 7 of the 1950 Act to declare the suit property as evacuee property before the 7th day of May 1954, and no such proceedings were pending on May 7, 1954, the property of Qazi Abdul Rashid could not be declared evacuee property under the Act, the power of the Custodian to do so having been terminated by Sectionmay be noted that the necessary prerequisite for acquiring property under Section 12 is that it must be evacuee property as defined in section 2(c) of the 1954 Act. In the absence of this essential prerequisite, the Central Government is not competent to acquire that property under this section for throwing it into the compensation pool. This prerequisite or condition precedent, as already noticed, was lacking in the instant case. No notifications published in the official Gazette either under sub-section (I) or sub-section (3) of section 12 appear to have been brought on the record of this case. Our attention was not drawn to any suchthere is section 20 which confers power on the managing officer to transfer any property out of the compensation pool by sale or in any other manner indicated in clauses (b) to (e) of that section. Again, the necessary prerequisite for sale is that the property must have been declared under section 7 of the 1950 Act to be evacuee property by the Custodian or it must be evacuee property under the deeming provisions of any law which may be applicable to the case of the evacuee. In other words, only that property which was evacuee property could be acquired under section 12 and form part of the compensation pool which satisfies the definition of "evacuee property" given in section 2(c) of the 1954 Act. If the property was never evacuee property, as defined in section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 or the Rules framed under this statute.Then, there are Sections 2 2, 23 and 24. Section 22 gives a right of appeal to a person aggrieved by an order of the Settlement officer or a managing officer, to the Settlement Commissioner. Any person aggrieved by the order of the Settlement Commissioner/Addition al Settlement Commissioner/Assistant Settlement Commissioner or a managing officer has been given a right to prefer an appeal to the Chief Settlement Commissioner under Section 23. But no appeal is competent from any order passed in appeal under Section 22. Section 24 confers the power of revision on the Chief Settlement Commissioner to revise any order of the authorities mentioned in that Section, including that of the managingt was made by the learned counsel for the appellant that the only remedy of the respondents was to prefer an appeal or revision under the aforesaid provisions of this Act and that, since 1. they did not avail of the same under Section 27, the sale made by the managing officer in favour of thes become final and cannot be questioned in anywill be seen that Section 27 is not attracted because the plaintiff, who filed the original suit and is now coming before us by way of appeal, is not questioning the finality of the order of the sale alleged to have been made by th e managing officer. It is the defendant respondents who are resisting the plaintiffs claim on the ground that the sale is a nullity. It could not be made under this Act of 1954 for the reason that it was never declared evacuee property under Section 7 of the Act and thus never formed part of the compensation pool. The words "under this Act" occurring in Section 27 are significant They show that those orders which are not made by any officer or authority in accordance with the provisions of this Act, but outside the provisions of this Act in excess of jurisdiction, can be called in question in the civil court. It may be noted that the language of Section 27 is not as wide as that of Section 46 of the 1950 Act.The facts of N.S. Gujral (ibid) were entirely different. There, an Indian citizen held a money decree against a person who, subsequent to the passing of the decree, turned an evacuee. It was held that at no time, the decree-holder had any right whatsoever in the property which vested in the Central Government on the issue of the notification under Section 12. It was further held that though the decree-holder cannot claim to proceed against the property in suit  or its income after the date on which it vested in the Central Government by virtue of the notification under Section 12, he can ask the Custodian to pay him out of the moneys lying with him on the date of such vesting if he can satisfy him in the manner provided in Section 10(2)(n) read with Section 10(1) of the 1950 Act. The ratio of that decision has no application to the facts of the prThe second contention, also, being meritless, isparting with this judgment, we may note here that at the conclusion of final arguments in this Court, counsel for the appellant represented that his client was making all efforts to search out and produce the Gazette Notification, whereby the suit property was declared and notified as evacuee property by the Custodian under subsection (3) of Section 7 of the 1950 Act. He wanted some time. We therefore, re served this JUDGMENT to give the plaintiff-appellant a last chance to produce such a notification of which the Court could take judicial notice. But, he has failed to produce any such Gazette Notification. Instead, he has produced, what purports to be, a copy of an order, dated January 5, 1951, of the Assistant Custodian. This is not a copy of any Gazette Notification of which judicial notice, without formal proof, could beother point to be noted is that in the ca se of an `evacuee falling underof the definition of `evacuee that is one, who on account of the things mentioned in thatleaves 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).