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Khair-un-nisa Vs. the Custodian of Evacuee Property, New Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCase No. C.R. 454-D/1961, against the order of Addl. Senior Sub-J., Delhi, D/-9-6-1961
Judge
Reported inAIR1968Delhi162; 4(1968)DLT458
ActsEvacuee Interest (Separation) Act, 1951 - Sections 2 and 20(1); Code of Civil Procedure (CPC), 1908 - Sections 9; Evidence Act, 1872 - Sections 101 to 104
AppellantKhair-un-nisa
RespondentThe Custodian of Evacuee Property, New Delhi
Appellant Advocate M. Ahmed, Adv
Respondent Advocate H.L. Dutt, Adv.
Excerpt:
.....the evacuee interest (separation) act, 1951, and section 20 of that act barred the jurisdiction of civil courts in respect of the suits like the present one. ' for this sub-section to apply, the following requirement must be satisfied: (iii) the competent officer must be empowered by or under this act to decide such claim unless all these three conditions are cumulatively satisfied, section 20(1) will have no application and the jurisdiction of the civil court will nto be barred. as far as the present case is concerned, i am clearly; of the opinion that the second requirement mentioned by me already is nto satisfied in this particular case. in views of this conclusion of mine on the second of the requirements enumerated above, it is unnecessary for me to consider whether the toher two..........the evacuee interest (separation) act, 1951, and section 20 of that act barred the jurisdiction of civil courts in respect of the suits like the present one. the trial court accepted the plea of the custodian and directed the return of the plaint for presentation to the proper authority and this decision of the trial court was affirmed by as an additional senior subordinate judge, delhi, on appeal. it is against these orders, the present civil revision petition has been filed under section 115, code of civil procedure.(3) section 2(b) of the evacuee interest (separation) act, 1951 (hereinafter referred to as the act), defines the word 'claim' as follows:-'claim means the assertion by any person nto being an evacuee, of any right, title or interest in any property.: (i) as a co-sharer or.....
Judgment:
ORDER

(1) The petitioner and one Mst. Kulsum Bi were the owners in equal shares of a property bearing Municipal No. 15/6747 to 15/6761 (old) situate in Pahar Ganj, New Delhi. Mst. Kulsum Bi migrated to Pakistan and her half-share of the property was declared to be evacuee property and vested in the Custodian of evacuee Property. However, the Custodian collected the rent from the tenants of the entire property. The petitioner herein was residing at Calcutta and even when Mst. Kulsum Bi was in India, it was Mst. Kulsum Bi who was looking after the property on behalf of the petitioner also.

(2) In view of the fact that the Custodian of Evacuee Property took charge of the entire Property and was collecting the rents there from, the petitioner herein instituted a suit against the Custodian of Evacuee Property for rendition of accounts and for recovery of her share of rent. Paragraph 12 of the plaint was in the following terms:

'The plaintiff prays that a decree may kindly be passed against the defendant:

(a) for rendition of accounts and

(b) for such sums as may be due to the plaintiff after going through the account

To this suit a preliminary objection was taken on behalf of the Custodian of Evacuee Property that the claim of the petitioner was to be adjudicated upon by the Competent Officer under the provisions of the Evacuee Interest (Separation) Act, 1951, and Section 20 of that Act barred the jurisdiction of Civil Courts in respect of the suits like the present one. The trial Court accepted the plea of the custodian and directed the return of the plaint for presentation to the proper authority and this decision of the trial Court was affirmed by as an Additional senior Subordinate Judge, Delhi, on appeal. It is against these orders, the present Civil Revision Petition has been filed under Section 115, Code of Civil Procedure.

(3) Section 2(b) of the Evacuee Interest (Separation) Act, 1951 (hereinafter referred to as the Act), defines the word 'claim' as follows:-

'Claim means the assertion by any person nto being an evacuee, of any right, title or interest in any property.:

(I) as a co-sharer or partner of an evacuee in this property or

(ii) as a mortgagee of the interest of an evacuee in the property; or

(iii) as a mortgagor having mortgaged the property or any; interest therein in favor of an evacuee;

and includes any toher interest which such person may have jointly with an evacuee and which is ntoified in this behalf by the Central Government in the official Gazette'

The expression 'composite property' has been defined by Section 2(d) to the following effect:-

'composite property' means any property which, or any property in which an interest has been declared to be evacuee property or has vested in the Custodian under the Administration of Evacuee Property Act, 1950; and

(I) in which the interest of the evacuee consists of an undivided share in the property; held by him as a co-sharer or partner of any toher person, nto being an evacuee; or

(ii) in which the interest of the evacuee is subject to mortgage in any form in favor of a person, nto being an evacuee; or

(iii) in which the interest of a person, nto being an evacuee, is subject to mortgage in any form in favor of an evacuee; or

(iv) in which an evacuee has such toher interest jointly with any toher person, nto being an evacuee, as may be ntoified in this behalf by the Central Government, in the official Gazette.'

Then we come to Section 20 on which alone reliance was placed for the contention that the jurisdiction of the Civil Courts stood barred. Sub-section (1) of Section 20 is in the following terms:-

'Save as toherwise expressly provided in this Act, no Civil or Revenue Court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the Competent Officer is empowered by or under this Act to decide and no injunction in respect of any action taken or to be taken by the Competent Officer in respect of the composite property shall be granted by any Civil Court or there authority.'

For this sub-section to apply, the following requirement must be satisfied:-

(I) There must be a suit or proceeding.

(ii) That suit or proceeding must relate to any claim to composite property.

(iii) The Competent Officer must be empowered by or under this Act to decide such claim

Unless all these three conditions are cumulatively satisfied, Section 20(1) will have no application and the jurisdiction of the Civil Court will nto be barred. As far as the present case is concerned, I am clearly; of the opinion that the second requirement mentioned by me already is nto satisfied in this particular case. As the definition of the word 'composite property' extracted already by me will show, it will refer to a property which has been declared to be evacuee property or which has vested in the Custodian under the Administration of evacuee Property Act, 1950. A suit for accounts in respect of the rents received by the Custodian in the course of management of the entire property, cannto be said to relate to a claim to composite property.

On this simple ground, I hold that Section 20(1) is nto attracted to the case in question. In views of this conclusion of mine on the second of the requirements enumerated above, it is unnecessary for me to consider whether the toher two requirements are also satisfied or nto in this particular case. As a general principle, exclusion of jurisdiction of Civil Courts ought nto to be inferred readily. If a particular party contends that the jurisdiction of the Civil Courts is excluded, the onus is on that party to establish the same and such an exclusion cannto be said to have been established unless every one of the requirements of the provision excluding the jurisdiction of the civil Courts is strictly; complied with in a particular case. Since I have taken the view that the requirement mentioned by me already has nto been complied with, with reference to S. 2(1) of the Act, the jurisdiction of the Civil Courts is nto barred in respect of the suit in question.

Nto toher contention was urged on behalf of the respondent in support of the conclusion of the Courts below.

(5) Under these circumstances, this Civil Revision Petition is allowed and the trial Court is directed to take the suit on its file and dispose it of on merits. There will be no order as to costs in this Civil Revision Petition.

(6) Petition allowed.


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