Rajindar Sachar, J.
(1) This judgment shall dispose of two R.S.A. No. 18/77 and R.S.A. No. 156/77. The proceedings in both these cases were consolidated in Trial Court. Counsel for the parties concede that apart from the different documents showing the receipts of rents and transfers by the Custodian Department, points of law arising in both the cases are common. It is also conceded by Mr. Bhatia and Mr. B.I. Singh, counsel for the appellants and Mr. Rameshwar Dial, counsel for the respondent in both the appeals that judgment given in R.S.A. 18/77 in which the main arguments were addressed would determine the result in the other appeal.
(2) The respondent/plaintiff filed a suit in which she claimed that the portion of the property were occupied by the appellant unauthorisedly and, thereforee, claimed possession of it and damages for use. Admittedly, the property (including suit premises) was originally an evacuee property. In the first instance, this property was transferred by the Central Government in the name of Manak Chand Bhola and his associates. Respondent/plaintiff purchased the shares of the associates of Manak Chand Bhola and thereafter by partition the premises in dispute fell to the share of respondent.
(3) The plea of the defendant/appellant was that he was in lawful occupation of the same, being the allotted frothed Custodian and that he was protected under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. This plea has not found favor with both the Courts below, who decreed the suit in favor of the plaintiff. Aggrieved by that the defendant appellant has come up to this Court in appeal.
(4) Normally, a finding that appellant was not lawful occupant of the premises in dispute would have been a finding of fact and impugned more attack in second appeal in this Court. But the way judgment of the Court below has dealt with the matter in controversy shows a complete non-application of the mind to the relevant issues and that is why interference is called for in this appeal. Further, the Court has placed the onus of proving lawful possession on the defendant instead of the plaintiff proving that the defendant was a tress-passer. Documents have been ignored or miss-read resulting in the unsustainable finding by the lower Appellate Court.
(5) Public Witness PW4, a Clerk in the office of the Regional Settlement Commissioner has deposed that appellant Gobind Ram is recorded in the Register of evacuee property. His name finds mention in Claim 12 which shows the present occupant and there is entry in Claim No. 15, an entry of April. 1951. There are rent receipts, Exhibit DW4/12 dated.30th August, 1954, Exhibit DW4/13 dated 27th December, 1954 and Exhibit DW4/14 dated 5th March, 1955 which shows the receipt of rent having been received by the Rehabilitation Department from the appellant. Exhibit DW4/18 is a letter written to the appellant informing him that the Central Government has transferred the property to the predecessor in interest by respondent and other associates and asking the appellant to pay the rent direct to Manak Chand and deal with him with effect from 11/1/1961. DW4. a clerk from the Rehabilitation Department was examined and in his evidence he has stated that rent up to 10th January, 1961 has been paid by Gobind Ram, appellant and according to the records shows an excess of Rs. 329/95 P. (and so far as rent from Munshi Ram in the other connected appeal is concerned, his evidence shows, similarly the payment of rent up to the said date of 10th January, 1961. an excess of Rs. 588/27P. to the credit of Munshi Ram, respondent in R.S.A. No. 156/77).
(6) The Court below has described the evidence of defendant on the sole reasoning that it has not been proved on record that there is any letter of allotment by which the appellant was accepted as the lawful occupant of the premises in dispute and Mr. Rameshwar Dial, counsel for the plaintiff. The respondent voluntarily seeks to support this finding. Under the administration of Evacuee Property Act, 1950, Section 2A, defines allotment to mean granting by a person duly authorised in this regard, of the right of use or occupation of any immoveable evacuee property to any other person. 2(j) describe unauthorised person to mean any person (that duly empowered in this behalf by the evacuee or otherwise), who, after the 14th day of August, 1947, has been occupying, supervising or managing of the property of an evacuee with the approval of the Custodian. No doubt, there is no formal letter of allotment produced on the record but by that itself cannot lead to the conclusion that occupation of the appellant was without the approval of the Custodian. The undisputed records of the Custodian Department show that appellant was in occupation of the property in dispute from 1951 onwards. The rent receipts also show the rent was being regularly received by the Custodian Department. The lower Appellate Court, however, curiously though it noticed, that the rent has been received by all these years by the Department from the appellant choose to ignore the rent receipts by observing that the receipts also being a claim showing rent to the lease, and it is not clear whether the amount was received as rent, though he noticed it that payment was not shown towards lease or license. The assessment of the Court below that money was received otherwise then as rent, thereforee, is based on power and surmise and conjecture and contrary to record. Another reason for discarding evidence Js that the receipts bear an endorsement that the payment does not in any manner affect the status of the occupant. I fail to see the import of this endorsement, because in my opinion this is a neutral fact, and did not show that a status of the occupant was an unauthorised one. The endorsement does not, in any way suggest that the amount was being collected on account of uses and damages and not by way of rent. Most important evidence is that the property was transferred to the respondent Exhibit DW4/18 ; there is an endorsement made by the Managing Officer to the appellant informing him that if he wishes to avail of protection under Section 29 of Displaced Persons (Compensation and Rehabilitation) Act, 1954, he should see to it that he pays all the arrears of rent todate. This important document has been ignored by the Court below on the specious argument that the property was transferred 'with effect from 11th January, 1961 and even assuming that the appellant may be considered to be a lawful occupant in 1965, when this letter was written, it does not show that the appellant was lawful occupant prior to 11th January, 1961. Tome this conclusion is not only perverse but thus counter to- the plain content of the letter. The Managing Officers later on accepted the fact of lawful occupation by the appellant. There is a specific mention of protection being given to the appellant under Section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and that is why he is asked to clear up the arrears of rent which is one of the conditions precedent for obtaining benefit under Section 29. There is nothing to show that at any point of time including any period earlier to 1961, the appellant had ever been treated in unauthorised occupation by the Custodian Department. The plaintiff summoned DW4, a witness from the Rehabilitation Department but did not choose to ask him specifically whether the records showed unauthorised occupation of the appellant. Rather, the record is over whelming the other way and shows the appellant as lawful occupant. There are rent receipts issued by the Rehabilitation Department, under Section 29 seeking to give protection, is issued to him in 1965, thus recognising his lawful occupation, up to any excess rent has been duly paid and yet the Court below has chosen to discard of this evidence on the specious plea that formal letter of allotment has not been proved by the defendant. This is to completely reverse the onus of proof which the plaintiff had given to the Court alleging that the defendant was in unauthorised occupation. The best evidence that he could produce was any order or indication from the official record that appellant has been treated to be in authorised occupation. But the record show to the contrary. Mr. Rameshwar Dial has laid much stress that the claim No. 15 in the Register of rent of Evacuee Property did not mention the letter of allotment. In my view, this argument lies no substance because claim No. 15 gives a direction to those who in preparation of the Register to indicate if there is an allotment letter. But their miss ness in performing the duty cannot make a lawful occupation unauthorised. What makes an occupation unauthorised is the absence of approval by the Custodian. But the fact of receipt of rent from the beginning of the occupation when the appellant is entitled to protection under Section 28 of 1954 Act, which is available only to an unauthorised occupant, i.e. one who has the approval of the Custodian, could lead only to the conclusion that appellant was in lawful occupation. In my view, the judgment of the Court below is completely against law and unsustainable. I would, thereforee, allow the appeal and set aside the judgment of the Court below and dismiss the suit of the plaintiff with costs throughout. In pursuance of the judgment of the Court below, the appellant has deposited Rs. 1800.00 on account of damages at the rate of Rs. 50.00 in the Court below. Mr. Rameshwar Dial states that though the appeal is being allowed, the plaintiff is at least entitled to recovery of rent at the rate of Rs. 26/9 Annas, (as given in evidence of Public Witness PW4, though he does not accept this figure). I would, thereforee, though while allowing the appeal, direct that out of the amount deposited in court below, the plaintiff will be entitled to realise the amount calculated from 1st October, 1965 up to 31st August 1978 at the rate of Rs. 26/9 Annas. Mr. S.L. Bhatia also undertakes that if the amount so calculated exceeds the amount which has been deposited by the appellant in the Court below, balance of the amount will also be deposited within a period of one month which can also be taken by the plaintiff. The fact that I am ordering the payment of the rent at Rs. 26.9 Annas should not be taken to mean that the said rent has been fixed by the Court because Mr. Rameshwar Dial disputes this rate and maintains that it is higher. I am making this clear so that calculation of rent at this rate is taken to be without prejudice to the respective rights of the parties. Subject to this direction, the appeal is allowed as indicated above.