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Gurparshad and ors. Vs. Assistant Custodian General of Evacuee Property, Delhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 244 of 1954
Judge
Reported inAIR1959P& H230
ActsAdministration of Evacuee Property Act, 1950 - Sections 46
AppellantGurparshad and ors.
RespondentAssistant Custodian General of Evacuee Property, Delhi and ors.
Appellant Advocate D.K. Mahajan and; Raj Kumar, Advs.
Respondent Advocate S.M. Sikri, Adv. General
DispositionPetition dismissed
Cases Referredand Kailash Chand v. Addl. Deputy Custodian
Excerpt:
.....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. - he concedes that ordinarily the custodian, alone is competent to decide whether certain property is or is not evacuee property and that under section 46 of the administration of evacuee property act, 1950, a civil court is not competent to decide such a question, but suggests that this ordinary rule holds good only where there is no claim made to the dis-puted property by another person. i am wholly unable to..........1951, one ram par-kash gave information to the assistant custodian that these houses were evacuee property. he alleged that the houses originally belonged ho two muslim ladies and they had been mortgaged in 1889 with narain dass and lachhman dass, and that the muslim owners had become evacuees on partition in 1947 and thus the equity of redemption had vested in the custodian. gur parshad in opposition to these allegations claimed that he and ms ancestors had been in possession of these houses ever since 1926 and their possession was adverse to the real owner, if any, and by lapse of time his title to the property was perfected. the assistant custodian dealing with this complaint started some enquiries but later came to the conclusion that the matter ought to be dealtwith by the.....
Judgment:

S.S. Dulat, J.

1. Civil Writs Nos. 244 and 245 of 1954 are connected and have been referred by a Single Judge of this Court for decision,

2. The dispute concerns 7 houses bearing Nos. 578 to 584 and situated in Lakkar Bazar, Ludhiana. Gur Parshad, who is the petitioner before us, was in possession of these houses and he sold two of them to Atma Ram in December, 1947 and sold the other five to different persons about two years later. In February, 1951, one Ram Par-kash gave information to the Assistant Custodian that these houses were evacuee property.

He alleged that the houses originally belonged Ho two Muslim ladies and they had been mortgaged in 1889 with Narain Dass and Lachhman Dass, and that the Muslim owners had become evacuees on partition in 1947 and thus the equity of redemption had vested in the Custodian. Gur Parshad in opposition to these allegations claimed that he and Ms ancestors had been in possession of these houses ever since 1926 and their possession was adverse to the real owner, if any, and by lapse of time his title to the property was perfected.

The Assistant Custodian dealing with this complaint started some enquiries but later came to the conclusion that the matter ought to be dealtwith by the Competent Officer appointed under the Evacuee Interest (Separation) Act 1951, and on this view he sent the case to the Competent Officer. That Officer, however, on considering the matter came to the conclusion that he was not competent to decide whether the Custodian did Or did not have any interest in the properties and that such a question could be settled by the Custodion and he, therefore, returned the case to the Custodian.

Against this order of the Competent Officer an appeal was taken to the Appellate Authority under the Evacuee Interest (Separation) Act, and the Appellate Authority held by order dated 28-4-1953 that the Competent Officer could decide the question himself and therefore remanded the case for decision to the Competent Officer. Civil Writ No. 245 is directed against that order of the Appellate Authority and the petitioner's claim in this respect as that the question whether the properties wereor were not evacuee property in the sense that theCustodian had or had not any interest in these properties could not be settled by the Competent Offi-cer under the Evacuee Interest (Separation) Act.

3. The matter, however, did not rest there because Gur Parshad himself approached the Assistant Custodian and asked that the properties be deleted from the list of composite property. TheAssistant Custodian agreed and made an order accordingly, Ram Parkash informant, however filed, a revision petition against that order which was heard by the Assistant Custodian-General and that officer held a detailed enquiry into the matter and on the evidence before him came to the conclusion that Gur Parshad's claim was unfounded and that the houses in question were evacuee property aa the Custodian had interest in those properties in the form of the equity of redemption. This Order was passed on 24-4-1954, and Civil Writ No. 244 of 1954 is directed against that order the contention being that even the Custodian was not competent to decide the questions which he did.

4. As far as Civil Writ No. 245 of 1954 is concerned, it as clear that events subsequent to the impugned order make the writ petition pointless. The order made by the Appellate Authority was under the Evacuee Interest (Separation) Act and it amounted to a direction to the Competent Officer to proceed to determine the question whether the disputed properties were or were not evacuee pro-perty. That officer, however, never did so, and the question has actually been determined by the Custodian. To urge therefore that the Competent Officer had no jurisdiction to act in the matter is futile for the simple reason that the Competent Officer has not in fact done so.

5. There remains the other Writ No. 244 of 1954. Mr. Mahajan in support of it contends that in view of the case set up by the present petitioner the civil Courts alone could decide the dispute and the Custodian was not competent to do so. He concedes that ordinarily the Custodian, alone is competent to decide whether certain property is or is not evacuee property and that under Section 46 of the Administration of Evacuee Property Act, 1950, a civil Court is not competent to decide such a question, but suggests that this ordinary rule holds good only where there is no claim made to the dis-puted property by another person. Section 46 of the Act is in these terms :

'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.'

Mr. Mahajan's argument as that this exclusive jurisdiction is conferred on the Custodian only where there is no dispute about the matter. I am wholly unable to agree because quite clearly if there is no dispute as to whether any property is or is not evacuee property there is nothing requiring adjudication and it is unthinkable that the Legislature should have taken the trouble of conferring exclusive jurisdiction on the Custodian to decide certain matters when in fact there would be nothing to decide.

Mr. Mahajan then urged that, in any case, even if the Custodian alone has jurisdiction to settle the question whether a property is or is not evacuee property, the Civil Courts are not debarred from deciding other questions of title that may arise between me parties which, even if accepted, leads nowhere as the question before us is not whether any civil Court is competent or not to act in a particular matter but whether the Custodian was competent to make the order which he has done in this case.

In support of his contention Mr. Mahajan mentioned three decided cases of this Court -- Custodian-General of Evacuee Property v. Harnam Singh, AIR 1957 Punj 58, Narendar Kumar v. Custodian. General of Evacuee Property, AIR 1956 Punj 163;and Kailash Chand v. Addl. Deputy Custodian- . General, 57 Punj LR 440. The first of these decisions which is by a Division Bench of this Court Has nothing to do with the matter as what was considered there was the scope of Section 48 of the Ad-ministration of Evacuee Property Act.

In the second case, AIR 1956 Punj 163, one of us sitting- alone was dealing with a case in which certain property was sold to a Muslim lady who later became an evacuee. The heirs of the vendors filed a suit in the civil Court claiming that the sale was invalid having been made without legal necessity and succeeded in obtaining a decree on certain terms. Subsequent to this, the matter was taken up by the Custodian, and one of the questions agitated there was whether the decree of the civil Court was binding or not. The Custodian took the view that the decree of the civil Court was invalid and proceeded to make an order on that basis.

In the writ petition before the High Court the question was whether the civil Court's decree could be ignored, and it was held that it could not as that decree had nothing to do with the question whether any property was or was not evacuee property. The present case before us raises no such issue for here the Custodian-properly seized of the question whether certain properties were or were not evacuee property, went into the claims made by the contending patties and decided on the evidence before him that the houses were evacuee properties. The third case cited by Mr. Mahajan largely resembles the second alfready mentioned and is of no assistance to Mr. Mahajan's argument.

6. The main point of Mr. Mahajan's argument, as I understand it, is that the present petitioner had asserted a right to the ownership of the disputed properties on the ground that he had been in adverse possession for more than twelve years, and that such a question could be properly settled in a civil Court and the inference therefore should be that the Custodian was debarred from settling it.

I do not see how the suggested inference follows even if it be that such a question could be agitated in a civil Court. Jt is clear that the Custodian is charged with the duty of taking over and administering all evacuee property. He is authorised to decide whether certain property is or is not evacuee property and in arriving at that conclusion he is entitled to consider various claims and decide all questions raised before him.

It may be that the civil Courts are not debarred from deciding some of those questions if properly raised in those Courts, but that con in no sense mean that the Custodian is debarred from deciding any of the matters relevant to the question before him. Considering the provisions of the Administration of Evacuee Property Act, 1950, therefore, I am unable to agree with Mr. Mahajan that the Assistant Custodian-General was not competent to decide what he has an fact decided.

7. Mr. Mahajan finally submitted that in any case the decision of the Custodian in respect of some of the matters, decided by him, cannot be final and must be capable of being reopened before a civil Court. I wish to say nothing about this matter at this stage as we are not now concerned with it. The question whether any particular matter can or cannot be decided by a civil Court can only be settled when any civil Court is in fact called upon to decide such a question, and Mr. Mahajan can test the validity of his submission only if he takes the disputed matter to a civil Court, In the present petition we are only concerned with onequestion, and that is whether the Assistant Custo-dian-General acted without jurisdiction in deciding that the disputed properties were evacuee property. I cannot say that he did. The present petition must therefore fail.

8. The result is that Civil Writs Nos. 244 and 245 of 1954 are both without force and both must be dismissed with costs.

D. Falshaw, J.

9. I agree.


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