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Faqir Singh Ganda Singh and ors. Vs. Mst. Gurbachan Kaur and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 514 of 1954
Judge
Reported inAIR1961P& H16
ActsAdministration of Evacuee Property Act, 1950 - Sections 10(2)(O) and 46
AppellantFaqir Singh Ganda Singh and ors.
RespondentMst. Gurbachan Kaur and anr.
Appellant Advocate Moti Ram Aggarwal and; H.L. Sarin, Advs.
Respondent Advocate K.C. Nayar, Adv.
DispositionAppeal rejected
Cases ReferredBeli Ram v. Custodian of Evacuee Property
Excerpt:
.....226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 1 and 2 for possession of the land allotted to the collaterals of kartar singh and karam singh on the ground that they arc better heirs to the same than the collaterals inasmuch as the allotted land is non-ancestral as the land in lieu of which it is allotted was non-ancestral. it is well settled proposition of law that when any special tribunals or courts are created we must look to the statute..........to set clown a short pedigree-table. hara singh __________________|________________ | | kartar singh karam singh _____|_________________________________ | | son daughter gurdevi | | daughter gurbachan singh gurbachan kaur plantiff no. 1. plaintiff no. 2.2. kartar singh and karam singh owned land in west pakistan and on the partition of the country and during the communal riots that followed, kartar singh, his son and karam singh were murdered. the only persons who survived were gurdevi, her son gurbachan singh, plaintiff no. 1 and kartar singh's grand-daughter, mst. gurbachan kaur plaintiff no. 2.3. in india after the partition the persons who had left land in west pakistan were allotted lands left by the muslims in lieu of the lands left by them. the land which was left by kartar.....
Judgment:

D.K. Mahajan, J.

1. In order to appreciate the facts involved in this case it is necessary to set clown a short pedigree-table.

HARA SINGH

__________________|________________

| |

Kartar Singh Karam Singh

_____|_________________________________

| |

Son Daughter Gurdevi

| |

Daughter Gurbachan Singh

Gurbachan Kaur Plantiff No. 1.

Plaintiff NO. 2.

2. Kartar Singh and Karam Singh owned land In West Pakistan and on the partition of the country and during the communal riots that followed, Kartar Singh, his son and Karam Singh were murdered. The only persons who survived were Gurdevi, her son Gurbachan Singh, plaintiff No. 1 and Kartar Singh's grand-daughter, Mst. Gurbachan Kaur plaintiff No. 2.

3. In India after the partition the persons who had left land in West Pakistan were allotted lands left by the Muslims in lieu of the lands left by them. The land which was left by Kartar Singhand Karam Singh in Pakistan was allotted to the fourth degree collaterals of Karam Singh who are appellants before me.

4. The present suit has been filed by the plaintiffs Nos. 1 and 2 for possession of the land allotted to the collaterals of Kartar Singh and Karam Singh on the ground that they arc better heirs to the same than the collaterals inasmuch as the allotted land is non-ancestral as the land in lieu of which it is allotted was non-ancestral. The trial Court granted a decree in favour of plaintiff No. 2 and dismissed the suit of plaintiff No. 1. It held that the property was non-ancestral and that plaintiff No. 1 was a preferential heir than the fourth degree collaterals of Karam Singh. An appeal was taken to the Addl. District Judge by the Collate rals who on the 19th of January, 1954, allowed the appeal to the extent of one half of the land on the ground that it was not known as to whether Karam Singh died before Kartar Singh or after him because in case Kararn Singh died after Kartar Singh then his property could not be inherited by either of the plaintiffs as they were not in the line of heirs and would go to the collaterals. Against this decision the collaterals have come up in further appeal to this Court. The plaintiffs, however, have not preferred any appeal nor have they filed cross-objections.

5. The only point argued by Mr. Sarin learned counsel for the collaterals, is that civil Court have no jurisdiction to try the suit. With regard to the other findings, it is admitted that the decision of the Courts below is correct.

6. Reference in this connection has been made to Section 46 and Section 10(2)(o) of the Administration of Evacuee Property Act (31 of 1950). Section 46(d) runs as under:

'Save as otherwise expressly provided in this Act, no civil or revenue Court shall have jurisdiction -

(a)- - - -

(b)- - - -

(c)- - - -

(d) in respect of any matter which the Custodian General or Custodian is empowered by or under this Act, to determine.

Section 10(2)(o) reads as under:

'(o) transfer in any manner whatsoever any evacuee property, notwithstanding anything to the contrary contained in any law or agreement relating thereto: Provided that the Custodian shall not sell any immovable property or any business or other undertaking of the evacuee, except with the previous approval of the Custodian General;'

7. In the present case, the dispute is between two rival sets of heirs to the property, which has been allotted in lieu of property left in West Pakistan. This dispute, in my opinion, does not fall for decision by the Custedian under either of the provisions and if the dispute does not fall within the exclusive jurisdiction of the Custodian then the jurisdiction of the civil Courts is not excluded. It is well settled proposition of law that when any special Tribunals or Courts are created we must look to the statute creating them to find out as to what matters have open entrusted to them for decision and their authority to decide the same mustbe specifically found within the four corners of I their charter. In this connection reference may be made to a Division Bench decision of the Lahore High Court, Lakhmi Chand v. Aulia Khan, AIR 1941 Lah 225, wherein at p. 227 of the judgment the following observations are made:

'When a special jurisdiction is conferred, it must be taken as strictly limited to the terms in which it is created and cannot be extended to cover matters to which no express reference has been made or which do not have to be decided in order to any out the purpose for which the special jurisdiction has been created.'

8. The same proposition was enunciated by Mr. Justice Mukherjea (as he then was) in Mohesh Chander Shaha v. Abdul Gafur, AIR 1946 Cal 4:35.

9. As I have already stated this is a dispute between two rival sets of heirs to property the allotment of which has taken place and is not in dispute. This matter clearly falls for decision by the civil Courts. It has not the remotest connection with matters which the authorities under the Administration of Evacuee Property Act are called upon to decide. It will be profitable to refer to the observations of Mr. Justice Gosain in Sat Na-rain Beli Ram v. Custodian of Evacuee Property, Jullundur, 1959-61 Pun LR 451 at p. 453: (AIR 1959 Punj 417 at p. 419):

'Clause (d) of Section 46 bars the jurisdiction of the civil Court to a very limited extent. The Only bar created by this clause is that a civil Court will not entertain a suit respecting any matter which the Custodian-General or the Custodian is empowered by or under the Act to determine. The words 'under this Act' as used in this clause can again be interpreted only as meaning 'sanctioned or authorised by this Act'. The civil Court can obviously examine whether the matter over Much it is asked to adjudicate is the one which the Custodian-General or the Custodian is empowered by or under the Administration of Evacuee Property Act to determine. Once the civil Court comes to the conclusion that the matter is of the type stated above, the civil Court would have no jurisdiction to adjudicate on the said matter. But if the civil Court is of the opinion that the Custodian-General Or the Custodian are not empowered by or under the Act to determine that matter, it would have jurisdiction to adjudicate on the matter. The mere fact that the Custodian-General or the Custodian think that they are empowered by or under the Act to determine the matter will not, in any case, stand in the way of the civil Court exercising jurisdiction in respect of the same.'

10. I am in respectful agreement with these observations. I am clearly of the view that the civil Courts had jurisdiction to decide the matter.

11. For the reasons given above, this appealfalls and is rejected. I, however, make no orderas to costs in this Court.


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