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Mohd. Sher Khan and ors. Vs. Shafi Ullah and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 927 of 1972
Judge
Reported inAIR1981All133
ActsDisplaced Persons (Compensation and Rehabilitation) Act, 1954 - Sections 36; Displaces Persons (Compensation and Rehabilitation) Rules, 1955 - Rule 93; Evacuee Interest (Separation) Act - Sections 2; Code of Civil Procedure (CPC) , 1908 - Sections 9; Administration of Evacuee Property Act, 1950 - Sections 46; Constitution of India - Article 226
AppellantMohd. Sher Khan and ors.
RespondentShafi Ullah and anr.
DispositionAppeal dismissed
Excerpt:
property - sale of evacuee property - section 36 of disabled persons (compensation and rehabilitation) act, 1954, rule 93 of disabled persons rules, 1955, section 2(d) of evacuee interest (separation) act , section 9 of code of civil procedure, 1908 and section 46 of administration of evacuee property act, 1950 - house jointly owned by brothers - one migrated to pakistan - share became evacuee interest - manager officer under wrong belief treated whole house as evacuee property - sold in auction - appellant contend his share never became evacuee - appellate court decreed for ejectment of defendants - defendants raised question of validity of sale and lack of title - held, question to be decided in appeal or revision or petition under article 226 of constitution of india. - - ? 4. is..........17, 1950 (ext-a-1) his 2/3rd share was declared to be evacuee interest under the administration of evacuee property act, 1950. the case of the plaintiff is that anwar hasan also migrated to pakistan prior to may 7, 1954, and thus even his share in the property became evacuee interest. the case of the appellants however, is that he had not migrated to pakistan by that time (may 7, 1954) so that his share in the house never became evacuee property. the house as a whole, it appears, was treated to be evacuee property and was put to auction as such by the managing officer, shahjahanpur on february 22, 1958 and purchased by smt. birbal sahni, a respondent in the present appeal (who was impleaded as defendant no. 7 in the suit). ext. 3 is a copy of the sale certificate issued in her favour.....
Judgment:

V.K. Mehrotra, J.

1. This second appeal is by the defendants in a suit which has been decreed by the lower appellate Court for their ejectment from house No. A-6-115 in Mohalla Tarin Jalalnagar, Shahjahanpur and also for recovery from them of mesne profit at the rate of Rs. 7/- per month for a period of three years for use and occupation thereof. The trial Court had decreed the suit for joint possession of the plaintiff over the house along with these appellants.

2. The house belonged to Israr Hasan and Anwar Hasan who had 2/3 and 1/3rd share respectively in it. The former migrated to Pakistan and by an order dated August 17, 1950 (Ext-A-1) his 2/3rd share was declared to be evacuee interest under the Administration of Evacuee Property Act, 1950. The case of the plaintiff is that Anwar Hasan also migrated to Pakistan prior to May 7, 1954, and thus even his share in the property became evacuee interest. The case of the appellants however, is that he had not migrated to Pakistan by that time (May 7, 1954) so that his share in the house never became evacuee property. The house as a whole, it appears, was treated to be evacuee property and was put to auction as such by the Managing Officer, Shahjahanpur on February 22, 1958 and purchased by Smt. Birbal Sahni, a respondent in the present appeal (who was impleaded as defendant No. 7 in the suit). Ext. 3 is a copy of the sale certificate issued in her favour under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. On February 22, 1963, the house was transferred by Smt. Sahni to the plaintiff. Theappellants were in occupation of the house. Their ejectment was sought by the plaintiff in Suit No. 48 of 1964 treating them to be tenants. That suit was however, dismissed for the appellants' denial that they were tenants of the plaintiff and asserted that the plaintiff was the owner of only 2/3rd share in the house. The suit was dismissed on December 13, 1967 and the judgment (Ext-A-4) of the trial Court was not assailed by the plaintiff who chose to file Suit No. 282 of 1969, out of which the present Second Appeal arises, for recovery of possession over the house and of mesne profit treating the present appellants as trespassers.

3. The plaintiff claimed to be the owner of the house having purchased it from Smt. Birbal Sahni who had acquired it in an auction held under order of the Managing Officer treating it to be evacuee property. The appellants asserted that they were in possession as licencees from Anwar Hasan who had inducted Chhida Khan, father of appellants Mohd. Sher Khan and All Sher Khan. Their case is that the interest of Anwar Hasan having not been separated from the 2/3rd evacuee interest of Israr Hasan under the provisions of the Evacuee Interest (Separation) Act, the purported sale of the entire house by the Managing Officer to Smt. Birbal Sahni was illegal in view of Rule 93 (v) of the Displaced Persons (Compensation and Rehabilitation) Rules 1955, which preculded any sale of a composite property as defined under Section 2(d) of the Evacuee Interest (Separation) Act. Since the evacuee interest in the property (the house) had not been separated under the provisions of that Act and no sale of the composite property could be made by the Managing Officer, no title passed to Smt. Birbal Sahni under the sale certificate (Ext. 3) nor could she pass valid title to the plaintiff through the deed of sale (Ext-2) made in his favour, The plaintiff, could, therefore not seek the ejectment of the defendants.

4. The trial Court framed the following eight issues in the case,

1. Whether the plaintiff is owner of the whole house in suit ?

2. Whether the share of Anwar Husain did not belong to the plaintiff and suit is barred by Section 20 of the Evacuee Interest (Separation) Act?

3. Is suit not maintainable as alleged in paras 3, 5 and 6 of was.?

4. Is suit bad for non-joinder of Custodian and Managing Officer?

5. Is suit barred by time?

6. Is defendant No. 1 owner of house in suit as alleged in para 9 of w. s. or a licencee?

7. Are damages claimed excessive?

8. To what relief if any is the plaintiff entitled?'

4A. The first three issues were dealt with together by the trial Court. It took the view that the order (Ext-A-1) dated August 17, 1950, showed that there was a declaration only of the 2/3rd share of Israr Hasan in the house to be evacuee property and that there was no document to indicate that any such declaration was made in respect of l/3rd share of Anwar Hasan. Thus, only 2/3rd share of Israr Hasan became evacuee property which alone could be transferred to Smt. Sahni and the sale certificate (Ext-3) in her favour, which showed Israr Hasan as the evacuee whose property had been transferred could not be said to transfer title in the entire house to her. The plaintiff, thus could only claim title to 2/3rd share in the house through, Smt. Sahni.

5. On consideration of the oral and documentary evidence, it was further held by the trial Court under these issues that Anwar Hasan migrated to Pakistan after May 7, 1954, so that his share in the property could not be held to be evacuee property on account of Section 7-A of the Administration of Evacuee Property Act, 1950, brought on the Statute Book through the Administration of Evacuee Property (Amendment) Act, 1954. As licencees through Chhida Khan from Anwar Hasan, the appellants could not be asked by the plaintiff to vacate the house. The plaintiff was at best a co-owner with Anwar Hasan, through whom the defendants were claiming possession, and could be held entitled to a decree for joint possession and an amount of mesne profit in proportion to the 2/3rd share acquired by him in the house. On these principal findings the suit was decreed for joint possession in the house and recovery for a sum of Rs. 168/- only as mesne profit for the period up to the date of the suit.

6. The plaintiff as also the present defendant-appellants, felt aggrieved by the decree and assailed it in two separate appeals which were heard and disposed of by the lower appellate Court by its common judgment dated March 8, 1972, which is impugned in the present appeal.The lower appellate Court, in substance, took the view that Anwar Hasan also migrated to Pakistan before May, 7, 1954, and that even though no specific declaration of his 1/3rd share as evacuee property was established by any document on the record of the case, it had to be presumed that the Managing Officer sold the entire house as evacuee property under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act as it was an evacuee property forming part of the compensation pool under that Act. It also held that the plea that the entire house was not an evacuee property nor could be sold as such not open to the appellants in a civil suit which was barred, inter alia, under Section 36 of that Act. On this view it proceeded to decree the suit for possession of the entire house and ejectment of the present appellants therefrom. In addition, it granted decree to the plaintiff for recovery of mesne profit at the rate of Rs. 7/- per month as claimed by him.

7. It has been urged on behalf of the appellants by their learned counsel that in view of the fact that there was declaration only in respect of the 2/3rd share of Israr Hasan to be evacuee property by the Custodian, the sale to Smt. Sahni could only be to the extent of the evacuee share in the house and that, in fact, there being no separation of the evacuee interest by proceedings under the Evacuee Interest (Separation) Act, the property, which thus was a composite property, could not be sold at all. The plaintiff could thus claim no right whatsoever in the house on account of the transfer in his favour by Smt. Sahni. The submission that no sale could be made of a composite property rests primarily on Rule 93 (v) of the Displaced Persons (Compensation and Rehabilitation) Rules. The trial Court had taken the view that the evacuee interest in the house was only to the extent of 2/3rd share of Israr Hasan and that it was not established from the evidence on record that the other co-sharer namely Anwar Hasan had migrated to Pakistan prior to the relevant date (May 7, 1954) or that his share in the property was ever declared to be evacuee property. As such the Managing Officer could not sell the entire house to Smt. Sahni. In coming to the conclusion that it was not established that Anwar Hasan had migrated to Pakistan before the relevant date, the trial Court refused to draw the inferencefrom some letters written by Anwar Hasan which had been filed by the plaintiff as Exts. 5 to 11 that Anwar Hasan had migrated to Pakistan before the relevant date or that he had obtained compensation in Pakistan in respect of his share in the house in suit as an evacuee from India. The lower appellate Court, however, drew an inference to that effect from them upon its appreciation of the evidence on record and came to the conclusion that Anwar Hasan had also migrated to Pakistan prior to May 7, 1954 so that his share also became evacuee property. This finding by the lower appellate Court has been assailed by the counsel for the appellants on various grounds.

8. The submission on behalf of the plaintiff-respondent in the appeal is that the sale certificate (Ext-1) in favour of Smt. Sahni described the whole house to be the evacuee property sold, with reference to its boundaries. The submission also is that even the defendant-appellants recognised the title of Smt. Sahni to the entire house in the notice (Ext-4) sent by Sher Khan to Smt. Sahni asking her to transfer the house to him failing which he would file a suit for specific performance of the contract of sale in his favour. The findings according to the submission recorded by the lower appellate Court that even Anwar Hasan had migrated to Pakistan and had obtained compensation in lieu of his share in the house in dispute was a finding on a question of fact so that it could not be urged by the appellants that only 2/3rd share of Israr Hasan in the house in suit was evacuee interest.

9. The main submission on behalf of the plaintiff, however, is that it is not open to the defendant-appellants to raise the questions sought to be raised by them in the present case in a suit for the jurisdiction of the Civil Court was barred under Section 36 of the Displaced Persons (Compensation and Rehabilitation) Act, inasmuch as, these questions could have been raised only under the provisions of that Act and decided by the authorities contemplated by it. It was urged that once the entire property is sold as evacuee property and no objection to that sale is raised on behalf of the non-evacuee co-sharer in accordance with the provisions of the said Act, the matter could not be agitated any further by any one claiming through the alleged non-evacuee in a suit.

10. In Abdul Hakim Khan v. Regional Settlement Commr., Bhopal : [1962]1SCR531 it was held by the Supreme Court that it was not open under Section 11 of the Evacuee Interest (Separation) Act, 1951, to vest the property not belonging to the evacuee in the Custodian even though in proceedings under Section 7 of the Administration of Evacuee Property Act, 1950 only 4/7th share is found to be evacuee property. In that case an order dated March, 23, 1954, made under Section 11 vesting the entire property, including the share of the non-evacuee, in the Custodian was set aside by the Supreme Court in a petition under Article 32 of the Constitution by the non-evacuee children of one Abdul Hai, one of whose wives and some children from her alone had migrated to Pakistan. The non-evacuee children of Abdul Hai had not filed any claim in response to notices under Section 6 of the Evacuee Interest (Separation) Act. They assailed the final order passed under Section 11 before the Supreme Court in a petition under Article 32 of the Constitution filed by them.

11. In Bhanwarlal v. Regional Settlement Commr., Jaipur (AIR 1965 SC 1885) it was held that it is only after the separation of the interest of the evacuee from the non-evacuee in a composite property under Section 10 of the Evacuee Interest (Separation) Act, 1951, that the evacuee interest gets vested in the Custodian free from all encumbrances and that where proper action under that Act is not taken to separate the interest of the evacuee and the non-evacuee, the Custodian could not take any action against the non-evacuees or their tenants who were said to be in possession of the property, in suit. In that case, the mortgagees from the father of two of the evacuees, of the property in suit assailed the order of the Assistant Custodian dated April 7, 1955, by which the property in dispute had been declared to be evacuee property. This challenge was made by them in a petition under Article 226 of the Constitution before the Rajasthan High Court without there being having any objection on their behalf in response to a notice under Section 7(1) of the Administration of Evacuee Property Act, 1950. The petition was dismissed by the High Court. The Supreme Court took the view, in appeal against the dismissal of the writ petition by the High Court, that the interest of the evacuees in the property which wasunder mortgage consisted of the right of equity of redemption and the order dated April 7, 1955, declaring the property to be evacuee property really amounted to an order declaring the right of the evacuees in the equity of redemption as evacuee property. The order could not affect the mortgagee rights of the appellants for the evacuees had no interest in the mortgagee rights. Since the Custodian held the property subject to the mortgagee rights of the appellants, he could not take any action against the appellants or their tenants without separating the interest of the appellants from those of the evacuees.

12. In Gulam Nizam Khan v. Kabir Hussan (AIR 1966 All 499) a single Judge of this Court, relying upon the decision of the Supreme Court in the case of Abdul Hakim Khan AIR 1961 All 1391 (supra) took the view that what was sought to be auctioned in the execution case was the non-evacuee interest of the co-sharers who were not evacuees which could not be done for it is only the evacuee interest that vests in the Custodian and passes to the Custodian free from all encumbrances. The plaintiff, who was the appellant could therefore not get the relief of injunction restraining the execution proceedings even though he may have acquired right to the plot in suit on account of the sale certificate obtained by him, when the evacuee cosharer had only some share in the plot and did not have interest in the plot in its entirety. From the facts of the case, it is clear that the question about the jurisdiction of the Civil Court to go into the correctness or otherwise of the order passed under the Evacuee Interest (Separation) Act or about the competence of the Civil Court to examine the legality of the sale of the entire plot made by the competent officer was neither agitated before nor decided by the learned Judge.

13. In Custodian Evacuee Property Punjab v. Jafran Begum : [1967]3SCR736 it was held by the Supreme Court that the Administration of Evacuee Property Act, 1950, was a complete code in itself in the matter of dealing with evacuee property. The questions which fell for determination by the Custodian under Section 7 were whether particular person had or had not become an evacuee and whether the property in dispute belonged to him. The orders passed by the Custodian General, Custodian, Additional Custodian, Authorised Deputy . Custodian,or Assistant Custodian were made final under Section 28 which also provides that they shall not be called in question in any Court by way of appeal or revision or in any original suit, application or execution proceedings. Section 46 then lays down that save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction in matters enumerated in the Section. The Supreme Court, after noticing the various provisions of that Act, observed that 'Section 46 is a complete bar to the jurisdiction of civil or revenue Courts in any matter which can be decided under Section 7. This conclusion is reinforced by the provisions contained in Section 4(1) of the Act which provides that the Act overrides other laws and would thus override Section 9 of the Code of Civil Procedure on a combined reading of Sections 4, 28 and 46. But as, we have said already, Section 46 or Section 28 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution for that is a power conferred on the High Court under the Constitution'.

14. Dealing with the decision of the Privy Council in Secretary of State v. Mask and Co. , upon which strong reliance was placed by the learned counsel for the appellants in the present case, the Supreme Court observed that 'Normally jurisdiction of Civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under Section 46, the question whether in some extreme circumstances Civil Courts may have jurisdiction in spite of Section 46 need not be decided just now. However, we may add that in Firm of Illuri Subnayya Chhetty and Sons v. State of Andhra Pradesh : [1963]50ITR93(SC) this Court observed at p. 763 (of SCR); (at pp. 325-326 of AIR) that the observations in Mask and Co's case , were in some respects too widely stated.'

15. The Supreme Court also observed as follows about the decision of the Full Bench of this Court in Khalil Ahmad Khan v. Malka Mehar Nigar Begum : AIR1954All362 , on which as well reliance has been placed on behalf of the present appellants.

'The last case to which reference may be made is Khalil Ahmad Khan v. Malka Mehar Nigar Begum : AIR1954All362 . The question there was somewhatdifferent, namely, whether Section 46, bars the jurisdiction of the Civil Court in a pending matter. The majority of the Judges in that case observed that in a case where a matter had been adjudicated upon in accordance with the provisions of the Act it might not be possible for Courts to interfere by reason of the provisions of Section 46 of the Act. This case therefore to some extent is in line with the view we have taken'.

16. In the instant case it has to be noticed that the property in suit was sold as a whole by the Managing Officer in favour of Smt. Sahni as is evident from the sale certificate (Ext. 1). It is true that the name of the evacuee mentioned in the sale certificate is Israr Hasan alone, yet what was sold was the entire house in dispute as is clear from the description of the property sold with reference to its boundaries.

17. The Scheme of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for brevity, the 'Act') may now be noticed. Under Section 12 of this Act, the Central Government is empowered to acquire an evacuee property for a public purpose connected with relief and rehabilitation of displaced persons and upon the publication of a notification by it the right, title or interest of the evacuee in the property specified in the notification stand extinguished and the property shall vest absolutely in the Central Government free from all encumbrances. Evacuee property, according to its definition in Section 2(c) means a property which has been declared or is deemed to have been declared as evacuee property under the Administration of Evacuee Property Act, 1950. Under Section 14 a compensation pool is to be constituted consisting, inter alia, of all evacuee property acquired under Section 12. The compensation pool so constituted is to vest in the Central Government free from all encumbrances and is to be utilised in accordance with the provisions of the Act and the Rules framed thereunder. Section 20 of the Act enables the Managing Officer appointed under the Act to transfer any property out of the compensation pool to a displaced person by its sale, subject to any rules that might be made under the Act. Chapter IV of the Act comprising of Sections 22 to 27 contain provisions for appeals against the orders passed by the Managing Officer and also for revisions against them. Section 27 provided for the finality of orders by laying downthat 'save as otherwise expressly provided in this Act, every order made by any officer or authority under this Act including a managing corporation, shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceeding.'

18. The bar of jurisdiction is thereafter expressly provided in Section 36 of the Act which reads thus:

'36. Bar of jurisdiction--Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which the Central Government or any officer or authority appointed under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority, in respect of any action taken or to be taken in pursuance of any power transferred by or under this Act'.

19. The scheme is akin to the one revealed by the provisions of the Administration of Evacuee Property Act, 1950, and the rule laid down by the Supreme Court in Jafran Begum's case : [1967]3SCR736 would be clearly applicable to any order passed or action taken by an authority (under) this Act as well. Even assuming that there was some error on the part of the Managing Officer in taking the view that the entire house was open to transfer, as part of the compensation pool to Smt. Sahni, that error could not be corrected except through an appeal or revision provided for in Chapter IV of the Act or a petition under Article 226 of the Constitution. The question could not be agitated in a civil suit. The lower appellate Court was thus right in its view that the questions raised by the defendants about the validity of the sale or about the lack of title in Smt. Sahni in respect of the entire house could not be raised in the suit, as was being done by them. There is no dispute about the fact that the present defendants or their predecessor-in-title did not take any proceeding in respect of the 1/3rd share in the house under the provisions of the Act.

20. Without considering, therefore, the merit of the submissions of the learned counsel for the parties on any question other than the jurisdiction of the Civil Court to go into them, I would uphold the decree of the lower appellate Court. The appeal, thus, fails and is dismissedbut, in the peculiar circumstances of the case, the parties are directed to bear their own costs throughout.


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