1. This is a second appeal by the plaintiff from the judgment and decree of the learned District Judge, Jullundur, dismissing his appeal and after allowing cross-objections filed by the defendants dismissing the plaintiff's suit in its entirety.
2. The suit out of which this appeal arises was instituted by the plaintiff Mani Singh in August 1954 for a declaration that the plaintiff was the owner of one-third share in the land allotted in favour of defendants 1 and 2 and that he was entitled to claim possession thereof. Defendant No. 3 was the Additional Custodian Rehabilitation (Rural), Punjab. According to the allegations in the plaint, the plaintiff claimed to be the co-purchaser with the defendants 1 and 2 of some land situated in Tehsil Jaranwala, District Lyallpur, now in Pakistan, by means of an auction held in July 1945.
The plaintiff claimed to be the co-owner of that land to the extent of one-third share, of which he claims to have obtained actual cultivating possession. He has further asserted that the proprietary rights of the said land were obtained by defendants 1 and 2 but before his, share could be transferred in his name, partition of the country occurred and the parties migrated to India. Defendants 1 and 2 were, according to the plaintiffs version, allotted some land in India in lieu of the aforesaid land left in Pakistan.
The plaintiff has however not been allotted any land although he was co-owner to the extent of one-third share of the land left by Mm and defendants 1 and 2. He has further alleged that he duly applied to the Director-General, Rehabilitation, Jullundur, asking for his one-third share in the aforesaid land left in Pakistan and claiming allotment in proportion to his share but in September 1951 his prayer was disallowed. Revision against the said order was also dismissed in May 1952 and a further revision met similar fate at the hands of the Custodian-General in April 1953.
The plaintiff has averred that defendants 1 and 2 have in spite of repeated requests refused to recognise his (the plaintiff's) right in the land allotted to them. Basing his terminus-a-quo on the order of the Custodian-General, dated the 21st April 1953, the plaintiff, as already observed, has claimed a declaratory decree that he is the owner of one-third share in the land allotted to each one of the defendants 1 and 2, and that he is entitled to claim possession of his share.
3. The suit was resisted by the defendants on the ground that the land described in the plaint has not been purchased by them jointly with the plaintiff and that the land which is the subject-matter of the suit had not been allotted in lieu thereof. The trial Court partly decreed the plaintiffs suit by granting him a declaration in the terms prayed, with respect to the land allotted to Chanan Singh defendant No. 2. In so far as Sher Singh defendant No. 1 is concerned, the suit was dismissed on the ground that the khasra numbers specified in the plaint, as having been allotted to him, were not proved to have been so allotted in lieu of the land described in para 1 of the plaint of which the plaintiff claimed to be the co-owner.
4. The plaintiff preferred an appeal against the dismissal of his suit qua the land allotted to defendant No. 1 while defendant No. 2 preferred cross-objections in so far as the decree passed against him was concerned. The learned District Judge while dismissing the plaintiff's appeal allowed the cross-objections and dismissed the entire suit on a number of grounds. He held that the suit was barred, under section 46(d) of the Administration of Evacuee Property Act, from the jurisdiction of the Civil Courts in respect of any matter which the Custodian was empowered by the statute to determine.
Reading together section 46 and Section 10(2)(o) of the Act, the Civil Court, according to the learned District Judge, could not entertain a suit for a declaration that the plaintiff had any right in the property allotted by the Custodian to the defendants. He further held that such a declaration was also not permissible because the power of the Custodian to allot the evacuee property could be exercised notwithstanding anything contained in law Or agreement to the contrary, and that the Civil Court could not control the discretion of the Custodian which the statute had conferred on him.
For these reasons the lower appellate Court felt great reluctance in granting the relief by way of declaration. Lastly it was observed that the plaintiff could not claim any right of ownership in the land allotted by the Custodian because it was evacuee property, the management of which vested in the Custodian by virtue of the provisions of the Administration of Evacuee Property Act. The plaintiff in the opinion of the lower appellate Court, in fact, wanted a declaration as to his right to claim the allotment of certain area in the land in dispute and this matter had been placed exclusively within the jurisdiction of tha Custodian over which the Civil Court had no power or control. The present suit was thus held to be incompetent
5. In this second appeal Mr. B.D. Mehra has addressed elaborate arguments on the question of jurisdiction of the Civil Courts which according to him is not taken away by the provisions of section 46 of the Administration of Evacuee Property Act. He has placed reliance on Ram Gopal v. Banta Singh, 1958-60 Pun LR 307: (AIR 1958 Punj 384) -- a judgment by a learned single Judge of this Court for the authority that the Civil Court had jurisdiction to determine the question relating to title in a property, such question being within the ambit of Section 9 of the Code of Civil Procedure. This case is clearly distinguishable because no question of claiming right to allotment of property by the Custodian arose in that case.
Decisions in Gurparshad v. Asst. Custodian General of Evacuee Property, Delhi, 1959-61 Pun LR 137: (AIR 1959 Punj 230) and Sat Narain Beli Ram v. Custodian of Evacuee Property, Jullundur, 1959-61 Pun LR 451: (AIR 1959 Punj 417), also seem to be distinguishable because they too did not deal with facts which bear any similarity to those before us. For the same reason I do not consider Sahib Dayal Bakshi Ram v. Asst. Custodian of Evacuee Property, Amritsar, 1952-54 Pun LR 318 : (AIR 1952 Punj 389) and Firm Pariteshah Sadashiv v. Asst. Custodian of Evacuee Property, Amritsar, AIR 1953 Punj 21, to be of any assistance.
M.B. Namazi v. Deputy Custodian of Evacuee Property, Madras, AIR 1951 Mad 930, -- a decision of the Madras High Court on a petition under Article 226 of the Constitution -- is also not of much help, because the constitutional right conferred by Article 226 is beyond legislative control and can by no means be taken away or curtailed by ordinary legislative enactment.
6. In so far as the cases of Sahib Dayal Bakshi Ram, 1952-54 Pun LR 318: (AIR 1952 Punj 389) and Firm Pariteshah Sadashiv, AIR 1953 Punj 21, are concerned, they are clearly decisions on their own facts as is obvious from Padam Chand v. Asst. Custodian, Civil Writ No. 233 of 1955, D/-13-12-1956 (Punj), in which a Division Bench of this Court distinguished them. In Sm. Lila Wanti v. Chandar Ishwar Gir, Civil Revn. No. 254 of 1952 D/- 18-3-1953 (Punj) Bhandari, C. J., held that by virtue of Section 46(d) of the Administration of Evacuee Property Act, it is not open to any Civil or Revenue Court to interfere with an order of allotment passed by the Custodian of Evacuee Property; reference in this connection was made to the powers of transfer conferred by Section 10 of the Act. To the same effect is another decision of the same learned Chief Justice in Sher Singh v. Phula Singh, Civil Revn. No. 96 of 1954, D/-9-8-1956 (Punj).
7. The argument of the learned counsel for the appellant that the Custodian is not empowered to decide questions of title does not, strictly speaking, cover the present case where the main question canvassed is in essence the right claimed by the appellant to have allotment of evacuee property made to himself or to be declared an allottee of the evacuee property. In this connection it would not be out of place to refer to A. S. Bhasin v. Custodian of Evacuee Property, Punjab, 1954-56 Pun LR 94: (AIR 1954 Punj 165), where J.L. Kapur, J., held an allottee of evacuee property to be a mere licensee.
Indeed the very definition of the term 'allotment' in the Administration of Evacuee Property Act connotes a mere temporary right of use or occupation otherwise than by way of lease. As a matter of fact the sum total of the various incidents of a quasi permanent allotment has been considered by the Supreme Court to bo insufficient to constitute even qualified ownership of the allotted land and the interests of such an allottee were held not to amount to property be-cause the ultimate ownership of evacuee land was still being recognised to be that of the evacuee concerned: Amar Singh v. Custodian, Evacuee Property, Punjab, (S) AIR 1957 SC 599.
8. But apart from this aspect, in my view there is also another hurdle in the way of the learned counsel for the appellant. The plaint as drafted seems clearly to be hit by the provisions of Section 42 of the Specific Relief Act inasmuch as the plaintiff was clearly able, on his own showing, on the allegations and averments contained in the plaint, to seek further relief than a mere declaration of title. On those allegations it was obviously open to him to ask for possession which he has omitted to do, and on this short ground alone he is not entitled to my declaration in these proceedings.
9. But then Mr. Mehra has submitted that he should be permitted to amend his plaint add relief by way of possession and have the claim tried on the merits on payment of requisite court-fee. He has emphasised the fact that no objection to this effect was raised by the defendants in the Courts below and that it is only fair that he should be permitted to amend the plaint.
10. We have given our most earnest thought to this prayer, but we regret it has not been possible for us to accede to it. It is undoubtedly open to him to contend that failure to seek further relief does not necessarily lead to dismissal of the suit straightway, there being no compeling provision of law on the point and that it is open to the Court in its discretion --which is indisputably very wide -- to permit amendment of plaint in a proper case.
It is also correct that in the present case no objection on the basis of the proviso to Section 42, Specific Relief Act, was taken by the defendants in the Courts below and thus it cannot be said that the plaintiff has persisted in proceeding with his suit for a mere declaration in spite of objection by the other side. Nevertheless a party cannot claim, as of right, the indulgence for amendment of the plaint, more particularly when this prayer is made on second appeal, and the Court has to consider all the facts and circumstances in deciding whether or not to accede to the prayer.
11. In the present case the suit was instituted as far back as 1954 and prima facie it would obviously be too late now to ask for the amendment of the plaint. It was a clear case in which further relief was, without the least doubt, open to the plaintiff; no cogent or even plausible ground has been shown as to why relief by way of possession was not claimed in the first instance. It has further been suggested at the Bar that the property in question has since not only been acquired by the Central Government but has also been dealt with under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act. It is, however, unnecessary for us to go into this question at this stage.
12. In view of the above discussion I would hold the present suit to be barred by the proviso to Section 42, Specific Relief Act, and on this ground alone dismiss the appeal. In the peculiar circum-stances of the case, however, there will be no order as to costs in this Court.
Bishan Narain, J.
13. I agree.