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Custodian of Evacuee Property Vs. Qabool Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 86 of 1969
Judge
Reported inAIR1980Delhi183; 17(1980)DLT515; 1980RLR500
ActsAdministration of Evacuee Property Act, 1950 - Sections 17; Limitation Act, 1908 - Schedule - Article 181
AppellantCustodian of Evacuee Property
RespondentQabool Singh and ors.
Advocates: B.S.C. Singh and; Nemo, Advs
Cases ReferredMerla Ramanna v. Nallaparaju and
Excerpt:
the case debated over the application filed by the custodian under section 17 read with section 151 of the civil procedure code, 1908, when it was found that the custodian was aware of the fact that his possession was sought to be disturbed during the proceedings initiated by the auction purchaser against the tenant - it was stated that the period of limitation would start only at that time - hence, it was held that the application was filed within the limitation period - .....the custodian was accordingly imp leaded as a defendant. the plea of the custodian that the sale by auction was void and ineffective by reason of the provisions of section 17 of the administration of evacuee property act (hereinafter referred to as 'the said act') was, however, rejected by the additional judge, small causes court on 18th december, 1956. (3) in the mean time the custodian filed an application on 4th october, 1956, under section 17 of the said act read with section 151 civil procedure code before the executing court which had passed the aforesaid mortgage decree. the executing court dismissed the application on 14th august, 1957 on the ground that it was barred by rest judicaia in view of the order dated 18th december, 1956 of the additional judge, small causes.....
Judgment:

B.N. Kirpal, J.

(1) The property in question in this Letterg Patent Appeal being property No. XII/6556 to 6572/4613 situated in Mughal- pura, Subzi Mandi, Delhi, was mortgaged by one Mohd. Ismail, respondent No. 9. At the instance of the mortgagee, in whose favor the mortgage decree had been passed, the said property was put to auction. The property in question was auctioned on 5th December, 1951 and Qabool Singh (original respondent No. 1) and Raghunath Das (original respondent No. 2) were declared the joint-purchasers. The sale in their favor was confirmed by an order of the court dated 19th January, 1952. It is an admitted fact that Raghunath Das transferred all his rights, title and interest as an auction- purchaser in favor of Qabool Singh.

(2) The aforesaid property in question was in occupation of tenants. It appears that symbolic possession of the same was given to Qabool Singh on 28th February, 1952 under order 21 rule 96 Civil Procedure Code A few years after obtaining the symbolic possession, Qabool Singh on 2nd February, 1956 filed a suit against Lekh Ram, one of the tenants, in the Small Causes Court, Delhi. The suit was for the recovery of arrears of rent. In the said suit the plea of Lekh Ram was that the property was evacuee property and the Custodian of Evacuee Property should be imp leaded as a defendant. The Custodian was accordingly imp leaded as a defendant. The plea of the Custodian that the sale by auction was void and ineffective by reason of the provisions of Section 17 of the Administration of Evacuee Property Act (hereinafter referred to as 'the said Act') was, however, rejected by the Additional Judge, Small Causes Court on 18th December, 1956.

(3) In the mean time the Custodian filed an application on 4th October, 1956, under Section 17 of the said Act read with Section 151 Civil Procedure Code before the Executing Court which had passed the aforesaid mortgage decree. The Executing Court dismissed the application on 14th August, 1957 on the ground that it was barred by rest judicaia in view of the order dated 18th December, 1956 of the Additional Judge, Small Causes Court. Against both the orders dated 18th December, 1956 and 14th August, 1957 revision applications were filed in the Circuit Bench of the Punjab High Court at Delhi. By an order dated 2 7th January, 1961 both the orders were set aside and the cases were remanded for determination on the following three issues :

'1. Whether the claim put in by the Custodian was within time 2. Whether the property vested in the Custodian on 5th December, 1951, the date of the sale and remained so vested 3. Relief.'

On remand, by the order dated 3rd September) 1962 Shri M.L. Jain, Sub- Judge 1st Glass, Delhi allowed the application dated 4th October, 1956. It was held that the property had vested in the Custodian on the date of the sale and assuch the said sale was void. The issue of limitation was also decided in favor of the Custodian.

(4) The auction-purchaser filed an appeal being E.F.A. No. 175-D of 1962. By judgment dated 24th January, 1969 S.N. Andley J. (as his Lordship then was) allowed the said appeal holding that the application dated 4th October, 1956 was barred by limitation. In coming to the aforesaid conclusion the single Judge, following the decision of Merla Ramanna v. Nallaparaju and others, : [1955]2SCR938 , held that Article 181 was applicable. According to the single Judge the right to sue accrued on the date when the symbolic possession was handed over to the auction purchaser. It was observed that the title of the Custodian could not be said to be independent of the title of the judgment debtor and that the Custodian merely steps into the shoes of the judgment debtor and the law of limitation had to be applied to the Custodian as it would have been applied to the judgment debtor himself. According to the single Judge lack of notice to or ignorance of the Custodian cannot be taken into consideration in determining the commencement of the running of the period under Article 181 of the Limitation Act.

(5) The Custodian of Evacuee Property has filed the present Letters Patent Appeal. It is contended on behalf of the appellant that the basis of the judgment of the single judge is that the Custodian does not have an independent title and he is a sort of a Manager who steps into the shoes of the judgment-debtor. It is contended that this premise of the learned single judge is incorrect. We are in agreement with the said contention of the learned counsel for the appellant. The Custodian is not a Manager on behalf of the evacuee. The Custodian is a functionary under the Administration of Evacuee Property Act and he is required to discharge statutoty functions and duties. The powers which are exercised by the Custodian are not derived from the evacuee but are vested on him by the Act itself. For the purpose of Article 181 what is to be seen is as to when has this power of the Custodian been sought to be interfered with. The learned single Judge overlooked the fact that the tenants of the property had all along been paying rent of the said property to the Custodian. The finding of the trial court is that the Custodian had been Realizing rent of the property from 1948 onwards and the last time rent had been received by him was as per the receipt dated 21st December, 1961. In other words even after the symbolic possession of the property in question had been handed over, the Custodian was collecting the rent. The possession of the Custodian, which must be regarded as being independent of the evacuee, was not sought to be disturbed at the time when the symbolic possession of the property was handed over to the auction purchaser.

(6) The learned counsel for the appellant has relied upon the aforesaid decision of the Supreme Court in Merla. Ramanna (supra) and contended that it is only when the possession of the Custodian was interfered with by the auction purchaser that the period of limitation under Article 181 would begin to run. It was held in the aforesaid case by the Supreme Court that when a sale in execution is inoperative and void, an application by a judgment-debtor to have it declared void would be governed by Article 181. It was further held that it was not until the purchaser acting under colour of sale interferes with the possession of the original owner that the owner, whose properties had been sold, is really aggrieved. What would give the owner the right to apply under Article 181 is such interference or dispossession by the alleged purchaser and not the sale itself. The starting point of limitation, according to the Supreme Court, would not be the date of sale but the date of dispossession. It is evident that in the present case the auction purchaser did not seek to interfere with the rights of the Custodian under the Act. The Custodian continued to realise the rents and manage the property. The delivery of symbolic possession of the property was behind the back of the custodian. The Custodian had never been informed of such delivery and had no knowledge of the same. The first time that the Custodian came to know that his possession was sought to be disturbed was during the proceedings initiated by the auction-purchaser against the tenant Lekh Ram. In our opinion it is only at that time that the period of limitation would begin to run. The application under Section 17 of the said Act read with Section 151 of the C.P.G. has thus been filed within the period of limitation.

(7) We accordingly allow the appeal and set aside the judgment dated 24th January, 1969 of the single Judge and restore the judgment of the trial court dated 3rd September, 1962. There will be no order as to costs.


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