1. Yusuf and Arshad, two brother, owned the property in equal shares at the time of partition which took place in the year 1947. Arshad continued to be in possession of the share of both till 1966 when he applied to the Revenue Authorities for sanctioning the mutation of the share of Yusuf in his favour on the ground that he (Yusuf) was not heard of for more than seven years and, therefore, he was his next heir. On 25th May, 1966, the mutation was rejected on the ground that may be Yusuf had died in India as suggested by Arshad or may have gone to Pakistan. After the mutation as rejected, Arshad filed the present suit for declaration that he was owner of the share of land once held by Yusuf as during the disturbances of 1947 he had gone to Delhi and died thereafter and since he was not heard of for a long time, thereafter, he would be his next heir and that the revenue authorities were in error in rejecting the mutation. The Union of India, through the Custodian Department, was impleaded as defendant to oppose the suit. The trial court dismissed the suit on raising a presumption that Yusuf must have migrated to Pakistan due to communal disturbances as he must have thought to adopt this course for his safety. On plaintiff's appeal, the learned District Judge decreed the suit after taking notice of the fact that the ownership of both the brothers was recorded in the Revenue papers right from the year 1944-45 to 1965-66, which clearly goes to suggest that the Custodian Department or the Rehabilitation Department never considered that Yusuf had gone to Pakistan during the disturbances of 1947, otherwise, soon after 1947 his share would have been recorded as evacuee property. It also took notice of the fact that at no point of time till Arshad started proceedings for sanction of mutation in his favour in 1966. Yusuf's share was ever recorded as evacuee property either in the records of the Custodian Department or of the Rehabilitation Department nor any proceedings were taken under Section 7 of the Administration of Evacuee Property Act, 1950. the defendants have come to this Court in second appeal.
2. After hearing the counsel for the parties, I am of the view that the judgment and decree of the learned District Judge is well based in view of Dr. Rajendra Prakash Sharma v. Gyan, Chandra, AIR 1980 SC 1206. The facts of the present case, as enumerated above, are much better than the facts of the Supreme Court case. The facts of that case were that although no proceedings were ever taken for declaration of the property in dispute in that case to be evacuee property nor it was ever shown the papers of the Custodian or the Rehabilitation Department till before 29th January, 1969, when the property was put to auction on that date by the Rehabilitation Department under S. 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, and was purchased by the plaintiff in that case in whose favour the sale certificate was issued on 19th March, 1969, it was at that stage that a question cropped up whether the auction sale and the sale certificate really conveyed any title to the auction-purchaser. It was held as follows:--
'Where the property which was never declared as evacuee property under Section 7 of the Administration of Evacuee Property Act, 1950, and thus never formed part of the compensation pool, was sold by the authorities under the 1954 Act, the jurisdiction of the civil court to get into the question as to the finality of the order of sale is not barred under S. 27. The sale could not be made under the 1954 Act for the reason that it was never declared evacuee property.
Only that property which was evacuee property could be acquired under Section 12 and form part of the compensation pool which satisfies the definition of 'evacuee property' given to Section 2(c) of the 1954 Act. If the property was never evacuee property, as defined in Section 2(c), it does not legally form part of the compensation pool and, therefore, cannot be disposed of under Section 20 or the Rules framed under this statute.
The words 'under this Act' occurring in Section 27 are significant. They show that those orders which are not made by any officer or authority in accordance with the provisions of this Act, but outside the provisions of this Act in excess of jurisdiction, can be called in question in the civil court. The language of Section 27 is not as wide as that of Section 46 of the 1950 Act.
In the present case, no proceedings under Section 7 to declared the property in question to be an evacuee property were taken by the Custodian against the person who remained in India at least till 1963. No notification under Section 7(3) was published in official Gazette declaring the property as evacuee property. Nor were any proceedings initiated under Section 7 to declare it evacuee property pending on 7th May, 1954, and the question of saving those proceedings under proviso to Section 7A did not arise.
Held, that after May 7, 1954, the Custodian had no jurisdiction to declare the property in question as evacuee property. The jurisdiction of the civil courts to go into this question was thus not barred by anything in Sections 28 and 46.'
3. Hence, there is no merit in this appeal, which is dismissed but with no order as to costs.
4. Appeal dismissed.