1. The circumstances leading up to the filing of this petition under Article 226 of the Constitution by the five sons of Ganga Dhar Vidhani, respondent 3, two of whom are still 'minors, are as follows. The petitioners' case is that they form a joint family with their father who in 1936 took a plot of Land in New Delhi on perpetual lease and thereafter in about 1938 built a, house on the land, which is now No. 59 on Babar Road. It is alleged that the funds used for this purpose were raised by sale of ancestral land belonging to the family and therefore the house is the property of the Joint family.
2. By a sale-deed dated 26-7-1945 Ganga Dhar Vidhani sold the house to Mst. Sultan Jahan Begam, wife of M. Habib-ur-Rehman, for Rs. 26,500/- The vendee became an evacuee in 1948 by migrating to Pakistan and the house became evacuee property and vested in the Custodian.
3. In February 1949 the petitioners filed a suit in a civil Court at Delhi claiming that the sale by their father of the joint family property, which had taken place when the plaintiffs were all minors, was without legal necessity and would not affect the rights of the petitioners. Both the vendee and the Custodian of Delhi were impleaded as parties in the suit.
The Custodian in fact contested the jurisdiction af the Court under the provisions of Section 43 of Ordinance 27 of 1949, which is the same as Section 46 of the Act of 1950, and an issue was framed on this point, as well as issues regarding the validity of the sale and the nature pf the property.
4. On 10-7-1950 the parties arrived at a compromise according to the terms of which the plaintiffs were to deposit Rs. 26,000/- in Court by 22-8-1950 in which case a declaratory decree was to be granted to them and failing which the suit would stand dismissed. Statements were made on behalf of all the defendants accepting the terms, the statement of Mr. Dina Nath, counsel for the Custodian, being the following:
'The decree may be passed according to the statement of the counsel for the plaintiffs. 11 the plaintiffs deposit Rs. 26,000/-, the same should not be given to defendant 1 (i. e., the vendee) until we are heard. When the plaintiffs will deposit Rs. 26,000/-, the custodian will not have any concern or connection with the property in dispute.'
5. The suit was decreed in accordance With the terms of the compromise and a sum of Rs. 26,000/- was deposited in the Court by the petitioners on 14-8-1950 within the specified period.
6. Thereafter the petitioners applied to the Custodian to act on the decree and in a considered order, dated 16-1-1952, Mr. R.C. Gulati, Assistant Custodian Judicial, accepted the application.
7. Thereafter it seems that the petitioners, who had been occupying the house in the meantime, applied to the department for the refund of the sums realized as rent from the date on which in accordance with the decree the Custodian ceased to have any interest in the property to the date of the order of the Assistant Custodian, and whether on this account or for some other reason some officer of the department initiated proceedings for revising the order of the Assistant Custodian.
After notice had been issued to the petitioners, the Authorised Deputy Custodian by his order, dated, 13-9-1954, held that the decree, of the Civil Court was void for want of jurisdiction and that the property still continued to be evacuee property, the petitioners being held to be at liberty to withdraw the Rs. 26,000/- deposited by them which amount was apparently still lying with the court. This order of the Authorised Deputy Custodian was upheld in the revision petition filed by the petitioners by Mr. C. B. Capoor, Deputy Custodian-General. These orders are challenged in the present writ petition.
8. I may say at the outset that I am somewhat surprised at the attitude of the department in this case in repudiating an agreement entered into by its duly authorised counsel in the suit instituted by the petitioners.
It is of course not possible to state whether the petitioners as plaintiffs would have succeeded on the merits in their suit, but the arrangement which was arrived at has obviously much to command it as a reasonable and fair settlement of the dispute and I am astonished at the change of attitude on the part of the department which led it to repudiate and upset the settlement.
9. However, my sympathy for the petitioners on this aspect of the case does not absolve me from examining the legal grounds on which the decree of the Civil Court has been held to be a nullity and the property in dispute held to be evacuee property. The relevant portion of Section 46 of the Act reads--
'Save as otherwise expressly provided in this Act, no civil or revenue Court shall have Jurisdiction--
(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property.'
These words clearly do not bar any civil or revenue Court from entertaining any suit whatever concerning evacuee property, but only bar the adjudication by these Courts on the matter whether any particular property is or is not evacuee property. I am completely unable to see how the suit of the present petitioners falls into this category.
The property in dispute was undoubtedly evacuee property at the time when the suit was instituted, as it had been sold before the partition to a person who had later become an evacuee, and, as long as the sale stood intact, it would continue to be evacuee property.
It does not, however, seem to me that there is anything in the words of Section 46 which bars persons in the position of the present petitioners from challenging the validity of the sale by which the property passed into the hands of the person who later became an evacuee. Indeed, as was held by Kapur J. in -- 'Kailash Chand v. Addl. Deputy Custodian-General, New Delhi', 57 Pun LR 440 (A), the Custodian was not competent to adjudicate upon a question of that kind, which could only be decided by an ordinary civil Court.
It may be that the effect of a decree, in case the plaintiff successfully impugned the sale, would be the extinction of the title of the vendor subject to any conditions, imposed by the terms of the decree, and this would have the effect subject to the fulfilment of any such conditions, of causing the cessation of the interest of the Custodian in property, but in my opinion merely because this may be the ultimate effect of a suit of this kind, the suit does not become one in which the question whether certain property is or is not evacuee property is involved.
10. I thus consider that the decision of the Authorised Deputy Custodian and Deputy Custodian-General that the decree in the present case was a nullity, because the civil Court had no jurisdiction to entertain the suit, amounts to an error of law patent on the face of the orders, and since in my opinion the department's repudiation of the compromise, which in my opinion was a fair and reasonable settlement in the suit, involved manifest injustice to the petitioners, I am of the opinion that all the necessary Ingredients are present in this case for granting the petitioners a writ of 'certiorari' and quashing the orders of the Authorised Deputy Custodian and the Deputy Custodian-General. I accordingly accept the writpetition with costs and quash the above-mention-ed orders. Counsel's fee Rs. 100/-.