1. The agricultural land in dispute belonged to two sets of Muslim owners, namely, (a) Ballu and others and (b) Nasiruddin, from before the partition of India. It is not known whether they migrated to Pakistan and if so, when or whether they died in India and if so, when. The petitioner and respondent 5 are found in possession of the said land. The property was treated as having automatically vested in the Custodian prior to l8th October, 1949under Section 4 of the East Punjab Evacuees' (Administration of Pro- Act, 1947 succeeded by the E. P. Ordinance Ix of 1949 which were the only legal provisions under which such automatic vesting could occur. No proceedings for resuming possession or control of the said property were taken by the authorities under Sections 6 and 7 of the Act of 19471.On 1-2-1965 the Patwari of the village made a report that the owners of these fields had migrated to Pakistan 12-13 years ago and recommended that the land should be listed as evacuee property. Acting on the report, Shri Sant Lal, Naib Tahsildar (and Managing Officer acting under the Displaced Persons (Compensation and Rehabilitation) Act, 1954) passed an order on 22-12-1967. that the property should be listed as evacuee property in the property register as having been detected as hidden evacuee property. Statements of the petitioner and others were recorded. The petitioner's counsel had argued that no property could be declared as evacuee property after 7th May, 1954. But this argument was repelled on the ground that this property was automatically vested in the Custodian with effect from the date on which its owners left for Pakistan and it was admitted by the petitioner and others that the owners had left for Pakistan before 1954 and the property had been declared evacuee property in 1952-53 when its owners had left for Pakistan. The Settlement Officer passed another order on 27-3-1968 after hearing the petitioner and others and stated that the case of the petitioner that the owners had not migrated to Pakistan and that they died about a year ago (prior to 27-3-1968) had not been proved. The Tahsildar and Managing Officer also passed an order on 4th March, 1968 rejecting the application of the petitioner for the setting aside of the order dated 22-12-1967 for the sale of the property. Ultimately the petitioner filed a revision before the Custodian General under Section 27 of the Administration of Evacuee Property Act, 14,50. This revision was dismissed by Shri Raini Kant, Deputy Custodian General on 22,d May 1970. He treated the revision as being one against the automatic vesting of the and. He found that the petitioner has not made rod his contention that the owners of the land died in India and that the petitioner was an heir of the said owner, for, the petitioner was stated to have admitted before the Tahsildar that one of the owners Nasiruddin migrated to Pakistan and the whereabouts of others was not known. Nevertheless, Shri Raini Kant did not give any finding that the owners had migrated to Pakistan prior to 18th October, 1949 and thereforee the property automatically vested in the Custodian.
2. In the present writ petition, it is asserted b the petitioner that he is an heir of the former owners of the land and that he has succeeded to the title of the land because the owners died in India during the riots at the time of the Partition India. Petitioner also says that he is in possession of the land. He prays that the orders passed by the Deputy Custodian General and the Managing Officers referred to above be quashed inasmuch as the property bad not automatically vested in the Custodian.
3. Respondents 1 to 4 - the authorities whose orders are being questioned by the petitioner - have not disputed that e petitioner is in possession of the land but stated that the possession is unauthorised inasmuch as he is not an heir of the owners of the land. They also asserted that the land automatically vested in the Custodian and, thereforee, the impugned orders were correct. Respondent 10 has also resisted the writ petition. He has purchased the land from Respondent 6 and the predecessors-in-title of Respondents 7 to 9 who had purchased the same from the Government. The Government had treated the land as being a part of the compensation pool under Section 12 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 inasmuch as a notification issued there under had purported to acquire all the evacuee property. Since, it is contended by the respondents that the land in dispute Was evacuee property due to its automatic vesting in the Custodian, the land became a part of the compensation pool when all the evacuee property was acquired by the Government and became a part of the compensation pool. Respondent 10 also did not deny that the petitioner was in posses of the property but denied the claim of the petitioner to the reliefs sought by him in the present writ petition.
4. Two questions, thereforee, arise for decision, namely:
(1) Whether the petitioner has a locus standi to challenge the impugned orders; and (2) Whether the impuged orders are eliable to be quashed under Articles 226 and 227 of the Constitution
QUESTION NO. 1:
5. Shri A. B. Saharya for Respon- I to 4 urged that a distinction should be noted in adjudging the locus standi of the petitioner. The impugned orders treated the property as having automatically vested in the Custodian. The only persons who could be aggrieved by them were the owners of the property or the heirs of the owners. The petitioner has failed to show that he is an heir of the owners. I agree with Shri Saharya that the petitioner has not proved that he is an heir of the owners. A mere allegation in the writ petition to that effect it of no avail. There were several owners and they must have also got nearer heirs such as wives and children. There is absolutely nothing to show that all of them are dead or that they did not leave wives and children. There is no substance, thereforee, in the contention of the petitioner that he is an heir of the owners of the property. Shri Sabarya contends that the only standing which the petitioner can claim is that he is in possession of the property. But a possessor without any title to the property cannot be allowed to question the orders which are directed only against the owners of the property. The question of the dispossession of the petitioner has not so far arisen and, thereforee, the petitioner has no locus standi to get the impugned orders quashed. He further says that the dispute regarding possession, if any, would be between Respondent 10 and the petitioner. Theoretically a distinction can be made between an owner and a possessor and it is also arguable that only an owner can seek the relief quashing the impugned orders. But such a distinction would be somewhat technical. It is inevitable that Respondent 10 would soon seek to dispossess; the petitioner. As the petitioner has no title in himself he can only show that the Respondent 10 himself does not have title to the property in as much as the property belongs to someone else. For, a possessor has good title to the property against the whole world except against the true owner. The whole question, thereforee, would arise as to who the true owner is. If the writ petition is dismissed and the impugned orders are not quashed, the petitioner would be prevented ed from showing who the true owner is inasmuch as the decision under Section 27 of the Administration of Evacuee Property Act, 1950 would be final against the petitioner would be prevented from showing that the property did not automatically vest in the Custodian and consequently the petetioner would be unable to defend his possession against Respondent 10. Technicality cannot be allowed to defeat justice. The concept of locus standi is not a rigid one. What one has to see is whether the petitioner is actually aggrieved by the impugned orders. It is only theoretically arguable that only the owners are aggrieved. Had it been known that the owners had migrated to Pakistan prior to 18-10-1949 a. the property automatically vested in the Custodian, then I would have held that the petitioner has no locus standi. Unfortunately, there is no clear finding on this point and it is, thereforee, doubtful whether the property automatically vested in the Custodian. It cannot be said, thereforee, that the petitioner should not be allowed to show that there was no automatic vesting of the property. thereforee the petitioner has a locus standi to ask for the relief of quashing the orders particularly the order under S. 27 of the Administration of Evacuee Property Act, 195.0. I find so.
QUESTION NO. 2:
6. While the impugned orders proceed on the assumption that the property automatically vested in the Custodian prior to 18-10-1949, there is some material on record which conflicts with this assumption. The report of the Patwari dated 1-2-1965 and the order of Naib Tahsildar dated 22-12-1967 is such material, It is true that the petitioner has made conflicting statements about the owners having gone to Pakistan and having died in India. It was urged by the counsel for the respondents that the burden of proof to show that the property did not automatically vest in the Custodian was on the petitioner inasmuch as if no evidence is given it is he who would fail. This may be so. But the question of the burden of proof becomes immaterial when both the parties have filed affidavits and documents and the question has to be decided on the material on record. It cannot be said from a perusal of the impugned order dated 22-5-1970 passed by Shri Raini Kant, Deputy Custodian General that it either expressly or impliedly finds that the owners migrated to Pakistan prior to 18-10-1949 and, thereforee, the property had become automatically vested in the Custodian. The petitioner had urged a ground that the Custodian General had passed an order on 28th April, 1970 and 15th May, 1970 by which revisions pending under Section 9, 7 in respect of property situated in the State of Haryana were transferred to the Assistant Custodian General (Under Secretary to the Government of Haryana) and, thereforee, Shri Raini Kant had no jurisdiction to try and decide the revision petition filed by the petitioner. According to the principle underlying Section 21 of the Code of Civil Procedure, an objection to the territorial jurisdiction should have been taken by the petitioner before the petition was decided. The petitioner did not do so. On the contrary, it is he who filed the petition before Shri Rajni Kant and got it decided by him. This objection is, thereforee, of. no effect. However the order of Shri Raini Kant is not supportable inasmuch as it does not disclose any material on which it could be held that the property in dispute had automatically vested in the Custodian prior to 18th October, 1949.
7. 1, thereforee, set aside the order passed by Shri Raini Kanth on 22-5-1970 and direct that the revision petition of the petitioner which was purported to be disposed of by the said order shall stand revived, The said revision petition shall be heard and decided by the appropriate authority who has jurisdiction to teat and decide the same now. The said authority shall apply its mind to the question whether the owners of the property had migrated to Pakistan prior to 18-10-1949 with the effect that the property automatically vested in the Custodian. Alternatively the said authority may find as to whether' the property or any part thereof did not so automatically vest in the Custodian and if so, what would be the effect of such a finding on the sale of the property by the Government to Respondents 6 to 9 and the subsequent purchase of the property by Respondent 10. In view of the divided success, the costs in this writ petition shall be borne by the parties as incurred.
8. Order accordingly.