Case: MAHENDRA PRATAP DUBEY Vs. MANAGING OFFICER,EVACUEE PROPERTY

1. This appeal takes exception to the judgment and order dated 26 th February, 2007 passed by the High Court of Judicature at Allahabad in Civil Misc. Writ Petition No.30158 of 1995, whereby the writ petition filed by the appellant challenging the decision of the Chief Settlement Commissioner, Board of Revenue U.P. at Lucknow was rejected. The Assistant Custodian/Managing Officer (Evacuee Property), Board of Revenue, Lucknow had allowed the application filed by respondent No.3Mainmum Nissa @ Kumani, W/o Subrati @ Algu, R/o Village Singramau, Tehsil Shahganj, District Jaunpur, U.P., accepting her claim that she was occupying the suit property as owner thereof, having purchased the same at a public auction and in furtherance whereof a certificate of sale came to be issued in her favour and that respondent No.4Mohd. Sattar @ Mokhan (through whom the appellant claims his right, title and interest in the suit property) was causing obstruction to her possession in the suit property on the basis of some fictitious sale certificate dated 30 th September, 1968.    2. Be it noted that the statutory authorities and the High Court have concurrently found that Ram Abhilakh (through whom the appellant claims to have acquired title in the suit property), to whom notice was issued by the authority and opportunity was given to produce the official record in his possession to substantiate that he had acquired title in the suit property pursuant to a transfer by the Custodian in favour of Md. Sattar @ Mokhan, failed to do so. He avoided filing any document. Further, there was no record or any entry in the official register to show that any sale certificate was issued in favour of Md. Sattar @ Mokhan by the concerned department.    3. On the other hand, it has been concurrently held that respondent No.3 had produced a certificate of sale dated 7 th August, 1965 in her favour issued by the competent authority in reference to an auction conducted on 12 th July, 1962, at which she purchased the subject property. Further, there was nothing to discredit the documents and the testimony of respondent No.3 that she had acquired right, title and interest in the suit property by virtue of a certificate of sale in her favour. Such finding has been recorded by the first authority vide judgment and order dated 4 th May, 1985 and confirmed by the Collector, District Jaunpur, by dismissing the appeal preferred by the appellant bearing Case No.8/1984/522 decided on 7 th October, 1988 and further upheld by the Chief Settlement Commissioner, Board of Revenue, Lucknow, U.P., being the revisional authority, by dismissing the revision of the appellant bearing Revision No.1(RR)District Jaunpur, decided on 5 th August, 1995. The High Court, therefore, declined to interfere in exercise of its writ jurisdiction and dismissed the writ petition preferred by the appellant vide impugned judgment and order.    4. The moot question agitated by the appellant before the concerned authorities and up till the High Court, was that the Managing Officer, appointed under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 had no jurisdiction to determine the validity of a sale certificate issued by the Custodian of Evacuee Property in exercise of the powers conferred upon him under Section 10(2)(o) of the Administration of Evacuee Property Act, 1950. This contention, however, did not find favour with either the authorities or the High Court in view of the findings of fact recorded against the appellant. The appellant was neither able to assail the concurrent findings of fact recorded by the authorities before the High Court nor did he produce the original sale certificate dated 30 th November, 1968 purportedly issued in favour of respondent No.4 (Md. Sattar @ Mokhan), who had transferred the property to one Shri Vishwanath S/o Kukhekahar who in turn transferred the same to Ram Abhilakh S/o Parmananad, R/o Shahganj, District Jaunpur, from whom the appellant claims to have acquired the same.    5. In the present appeal, the appellant has contended that if an Indian citizen had left India to live in Pakistan, his property would become an evacuee property as defined in Section 2(f) of the 1950 Act; and whence the Custodian alone would have the power under Section 10 of the 1950 Act to transfer such property in the manner prescribed by the 1950 Act. Further, such evacuee property could indeed be acquired under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 by the Central Government, consequent to which the property would lose the status of an evacuee property and the Custodian would be divested of its power to deal with the same. That property would then become a part of the compensation pool as envisaged under Section 14 of the 1954 Act and only thereafter, could the Managing Officer assume control or authority over the same and dispose it of in the manner specified under Section 20 of the 1954 Act. On facts, it has been argued on behalf of the appellant that respondent No.3 admits that the property is an evacuee property and has not claimed that it is a compensation pool property. For, in the suit filed by the husband of respondent No.3 (Subrati), being suit No.520/1982, it was asserted that the evacuee property has been auctioned off to respondent No.3 by the Custodian; but in the subject application dated 30 th April, 1982 field before the Managing Officer, respondent No.3 claims that the suit property was purchased in an auction and consideration amount was deposited in the office of the Managing Officer and the sale certificate dated 7 th August, 1965 came to be issued in her favour by the Managing Officer. Similarly, in the counter affidavit filed before this Court, respondent No.3 had claimed that the property was transferred to her by the Managing Officer. In substance, the argument is that respondent No.3 has taken a contradictory stand before different authorities and courts, which must militate against her.    6. The contesting respondent, on the other hand, would contend that regard being had to the concurrent finding of fact recorded by the authorities concerned and also upheld by the High Court, the sole issue raised by the appellant about the jurisdiction of the Managing Officer does not merit any interference. An abstract debate bereft of any proof produced by the appellant to establish that the suit property was transferred to respondent No.4 (Md. Sattar @ Mokhan) by the Custodian in terms of sale certificate dated 30 th November, 1968, does not merit examination. The question whether such a sale certificate was issued and, in fact, exists, could certainly be examined by the Managing Officer before whom the subject application dated 30 th April, 1982 was filed by respondent No.3, by virtue of the enabling provision in Section 19 and the bar of jurisdiction of the civil courts in terms of Section 36 of 1954 Act. In such an enquiry, all aspects were open including to determine as to whether the sale certificate issued in favour of respondent No.3 by the office of the Managing Officer, is valid. It is submitted that all the authorities including the High Court have concurrently found that the sale certificate issued in favour of respondent No.3 in respect of suit property dated 7 th August, 1965 was genuine and valid. Furthermore, it has been concurrently found against the appellant that despite sufficient opportunity, hisRam Abhilakh S/o Parmanand did not produce any document; nor did respondent No.4 (Md. Sattar @ Mokhan), through whom he (appellant) had claimed right, title and interest in the suit property, produce the original transfer document issued by the Custodian to prove the genuineness of the transaction and further there was no record or any entry in the official register evidencing that any sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the department. In that view of the matter, the question of law sought to be agitated by the appellant about the authority of the Managing Officer to decide the matter in issue concerning the sale certificate issued by the Custodian of Evacuee Property under the 1950 Act would be tenuous and the Court should not enter upon that issue.

Reasoning:
10. From the acceptance letter, it is noticeable that it has been issued under the signature of one B.B. Verma, Assistant Custodian and the same person issued a certificate of sale in his capacity as Managing Officer. It must be kept in mind that the application was moved by respondent No.3 and not by the appellant or any of his statedIn that situation, the enquiry into the application ought to be limited to the fact as to whether the documents relied upon by respondent No.3 before the authority, to claim that she had acquired right, title and interest in the suit property as a consequence of issuance of certificate of sale, were genuine. Neither the appellant nor hishas challenged the validity of the said official documents issued in favour of respondent No.3 before the concerned authority or otherwise. In the proceedings initiated by respondent No.3, because of the stand taken by her that respondent No.4 (Md. Sattar @ Mokhan) was also claiming right, title and interest in the suit property by virtue of a sale certificate issued in his favour by the Custodian, notices were issued by the competent authority to him as well as Vishwanath S/o Sukhi and Ram Abhilakh S/o Parmanand to evoke their response. Despite opportunity given by the competent authority, they failed to produce any document, much less original documents, evidencing that the Custodian had issued a sale certificate in respect of the suit property in favour of respondent No.4 (Md. Sattar @ Mokhan).The appellant as well as respondent No.4 having failed to produce any original document and since there was no record or entry in the official register to show that such a sale certificate was issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Department, as concurrently found by the authorities, it must follow that their claim in respect of the suit property remained unsubstantiated. In other words, the appellant has not been able to establish any causal connection with the suit property either on account of allotment of the suit property to him or his predecessors, by the competent authority or otherwise.This finding of fact and conclusion came to be affirmed by the Appellate Authority as well as the Revisional Authority for which reason the High Court declined to interfere. Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7 th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani).The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit.